Offit Kurman Blogs

NJDEP Enforcement Insight

You Received an NJDEP AONOCAPA. What next?

An Administrative Order and Notice of Civil Administrative Penalty Assessment (“AONOCAPA”) is a formal NJDEP enforcement document that alleges violations of environmental law, may require corrective action, and imposes a civil administrative penalty. Unlike a Notice of Violation, an AONOCAPA may be contested through NJDEP’s administrative hearing process. Companies receiving an AONOCAPA should therefore promptly identify the applicable hearing deadline and evaluate both the underlying violation and the penalty assessment before determining how to respond. It is critical to act promptly. Failing to submit a timely hearing request will cause the AONOCAPA to become final and eliminates the opportunity to contest the alleged violations and penalty. Determine the Response Deadline The first issue is timing. There is no single response deadline that applies to every NJDEP AONOCAPA. The deadline depends on the regulatory program and may range from approximately 10 to 35 days. The applicable deadline should be stated in the enforcement document, and companies should review it and the governing regulations immediately upon receipt. Review the Facts, Legal Issues, and Penalty Once the deadline is identified, the company should review NJDEP’s allegations and the available record. That review may include permits, inspection reports, sampling data, operating records, correspondence, photographs, consultant reports, and prior enforcement history. The company should consider several separate issues. Did the alleged violation occur? Does the cited requirement apply? Does NJDEP have all of the relevant facts? Has the violation been corrected? Is the penalty calculation consistent with the applicable regulations? The underlying violation and the penalty assessment should not necessarily be viewed as the same issue. A company may agree that corrective action is appropriate while disputing the amount of the penalty or aspects of NJDEP’s factual or legal conclusions. Prepare the Administrative Hearing Request Once the matter has been evaluated, a company that intends to contest the AONOCAPA should prepare and submit its hearing request on time. A hearing request is a formal document with specific procedural requirements and potentially significant consequences. NJDEP’s current guidance requires enforcement hearing requests to address the allegations being admitted, denied, or contested; identify the issues in dispute; state the defenses being asserted; and provide supporting information. NJDEP may treat an incomplete request as deficient and may deny a request if required deficiencies are not corrected. Companies should therefore avoid treating the hearing request as a simple notice of disagreement with NJDEP. Instead, the hearing request is better understood as analogous to an answer in litigation: it begins defining the issues that are actually in dispute. Consider the Appropriate Resolution Requesting an administrative hearing does not mean that every matter will proceed to a contested hearing before an Administrative Law Judge. NJDEP’s administrative process allows for settlement discussions, and its Office of Administrative Hearings and Dispute Resolution also offers an alternative dispute resolution process. The appropriate strategy will depend on the strength of the company’s factual and legal position, the amount of the penalty, the status of corrective action, prior enforcement history, and the business consequences of the dispute. The important point is to make that decision after preserving the company’s rights through an appropriate and timely hearing request. An AONOCAPA is both an environmental compliance matter and a formal enforcement matter. Responding effectively requires attention to the immediate deadline while developing the facts needed to determine whether the best approach is to contest, negotiate, comply, or pursue a combination of those options.

October 13, 2026

Intellectual Property

Longclaw Loses Its Edge: Court Dismisses Game of Thrones Sword Copyright Claim

Jalic, Inc., the officially licensed maker of Game of Thrones prop replicas sold under its Valyrian Steel and Jalic Blades brands, sued more than twenty toy, costume, and novelty companies, accusing them of selling swords that copy “Longclaw,” the wolf-pommel blade (i.e., a sword with a decorative wolf’s head at the end of the handle) carried by Jon Snow in HBO's Game of Thrones series. One defendant, Windy Woman, Inc., doing business as Childish Tendencies, moved to dismiss. In September 2026, a federal court in the Eastern District of Tennessee granted that motion, finding that Jalic had not sufficiently asserted the elements of copyright infringement. The court's reasoning turned on the “Substantial Similarity” filtering test courts use to separate protectable expression from the unprotectable underlying idea. After taking judicial notice of the show's wide cultural reach to satisfy the access element, the court set aside every generic, functionally necessary sword feature (a hilt, a blade, a crossguard) as unprotectable “scenes a faire,” or elements so common to forms of expression that they are ineligible for copyright protection. It also set aside the concept of putting a wolf's head on a pommel; an idea which, however distinctive, sits outside copyright's reach, and, thus, protection attaches only to Jalic's particular form of expression of the wolf’s head. Comparing the exact contours, proportions, and detailing of Longclaw's specific wolf-head design with the accused sword, the court found the overlap too general for a reasonable observer to call the works substantially similar. For businesses that manufacture, license, or sell merchandise inspired by well-known franchises, or that compete in a crowded design category like fantasy weapons and collectibles, the ruling is a reminder that copyright protection reaches the specific way an idea gets rendered and generally not the broad concept behind it. A client accused of copying should ask what is simply generic to the category before conceding similarity, and a client protecting its own designs needs a record of the concrete, distinctive choices that separate its product from the idea behind it. The takeaway is: if you are careful to document the specific expressive detail that makes your product unique, that record, not the shared premise, is what may win the day.

October 8, 2026

Labor and Employment

Motive Now Matters: The Second Circuit Rewrites the Religious Accommodation Playbook

For decades, religious accommodation claims in New York, Connecticut, and Vermont ran on a familiar three-step track. The employee showed that she held a sincere religious belief that conflicted with a job requirement, that she informed her employer of the conflict, and that she was disciplined for not complying. Once those boxes were checked, the burden shifted to the employer to prove it offered a reasonable accommodation or that doing so would have imposed an undue hardship. The inquiry was about process and knowledge. What did the employer know, and what did it do about it? On July 15, 2026, in Bergin v. New York State Unified Court System, the Second Circuit held that this test has been dead since 2015 and nobody noticed. The court concluded that the Supreme Court's decision in EEOC v. Abercrombie & Fitch Stores severed the link on which the old framework rested, and it replaced the knowledge-based prima facie case with one built around a single question: was the employer’s desire to avoid an accommodation a motivating factor in the adverse action? That is a meaningful shift, and it cuts in more than one direction. What Happened in Bergin The facts are a familiar artifact of 2021. A court officer with the New York State Unified Court System sought a religious exemption from the agency's COVID-19 vaccination mandate. She submitted a personal statement, scripture, and a letter from her pastor. When the exemption committee sent a supplemental questionnaire probing the basis for her beliefs, she returned it largely blank, citing privacy concerns. The exemption was denied, and she was terminated. A jury found in her favor under the old three-part test. The Second Circuit vacated that verdict, held that the old test no longer governs, and sent the case back to be tried under the new standard. The New Test Under Bergin, a plaintiff must now show that (1) she actually required an accommodation of her religious practice, (2) the employer's desire to avoid providing that accommodation was a motivating factor in its decision, and (3) she suffered an adverse employment action. The court rejected the argument that Abercrombie, a hiring case, should be confined to hiring decisions. Title VII draws no distinction between refusing to hire and choosing to fire, and neither will the Second Circuit. Knowledge is not irrelevant under the new framework. It is evidence of motive. But it is no longer sufficient on its own, and its absence is no longer automatically fatal. An employer that knew about a religious conflict and acted for reasons having nothing to do with avoiding accommodation has a defense it did not have before. An employer that merely suspected a conflict and acted to sidestep it has an exposure it may not have appreciated. Why This Is Not Simply Good News for Employers The headline of Bergin is that it raises the bar for plaintiffs. That is true. Proving motive is harder than proving notice, and some claims that would have survived summary judgment under the old test will not survive under the new one. But employers should resist the temptation to file this decision under "wins." Three cautions are in order. First, motive inquiries are jury inquiries. Once a case is framed around what the employer wanted rather than what it knew, the evidence that matters is the evidence that reveals intent: internal emails, committee notes, offhand comments, patterns of how similar requests were handled. That is precisely the category of evidence that courts are reluctant to resolve as a matter of law. A standard that makes it harder to plead a claim can, paradoxically, make it harder to dispose of one. Second, the new framework diverges sharply from the ADA. Disability accommodation claims remain process-driven: did the employer engage in the interactive process, was the accommodation reasonable, was there an undue hardship? Employers now face two different analytical structures for what feels, on the ground, like the same conversation. An HR team that runs religious and disability requests through a single template will need to think about whether that template still fits. Third, the Bergin facts themselves should give employers pause. The supplemental questionnaire that prompted the dispute is exactly the kind of tool many employers adopted during the pandemic to test the sincerity of exemption requests. Under a motive-focused standard, the design and tone of those inquiries become evidence. A questionnaire that reads as a genuine effort to understand a belief looks very different from one that reads as an effort to build a denial file. What About Pennsylvania, New Jersey, and Delaware? Bergin binds only New York, Connecticut, and Vermont. Employers across the river are in a different posture, at least for now. The Third Circuit continues to apply the traditional framework it set out in Webb v. City of Philadelphia: a sincere religious belief that conflicts with a job requirement, notice to the employer, and discipline for noncompliance. That is the test the Third Circuit applied in Groff v. DeJoy on its way to the Supreme Court in 2023, and the Supreme Court reversed on the undue hardship standard, not the prima facie case. The Third Circuit has not revisited its framework in light of Abercrombie, and no decision to date has adopted a motive element. That does not mean Philadelphia and Newark employers can ignore Bergin. Three points are worth noting. First, the Abercrombie reasoning that drove Bergin is Supreme Court reasoning, not Second Circuit reasoning. The argument that the traditional test "did not survive" 2015 is now sitting in a published circuit opinion, and defense counsel in the Third Circuit will raise it. Expect district courts in the Eastern District of Pennsylvania and the District of New Jersey to be asked to choose. Second, a circuit split of this kind is the sort of thing the Supreme Court eventually resolves. Employers with multi-state footprints spanning both circuits are now defending the same accommodation decision under two different tests, which is untenable in the long run and a reason to build the record as if the motive standard applied everywhere. Third, state law matters independently. The Pennsylvania Human Relations Act and the New Jersey Law Against Discrimination have their own religious accommodation provisions, and the NJLAD in particular is routinely read more broadly than Title VII. A shift in the federal prima facie test does not necessarily carry over to state claims, which means a plaintiff in New Jersey may plead both and let the employer sort out which framework applies to which count. The Practical Takeaway Under a motive standard, the record you build is the case you will defend. Employers in the Second Circuit, and employers in the Third Circuit who should expect the same argument to arrive shortly, should be doing the following: Document the reason for every denial. Not "request denied," but why. Tie each decision to an articulable, non-religious business basis, and make sure that basis is consistent with how the employer has handled comparable requests. Audit your inquiry process. Questionnaires and follow-up requests should be designed to understand the belief and evaluate feasible accommodations, not to generate grounds for rejection. Train the people who administer them to understand the difference. Keep the undue hardship analysis honest. Groff v. DeJoy raised the bar in 2023, requiring a showing of substantial increased cost in the context of the particular business. Bergin does not lower it. An employer that skips the hardship analysis because it believes the plaintiff cannot prove motive is betting on a jury question. Watch what gets written down. Motive cases are won and lost on contemporaneous communications. Managers who vent about "another exemption request" in email are creating exhibits. Bergin did not make religious accommodation claims easier to defend. It changed what defending them looks like. Employers who understood the old test as a process to be followed should now understand the new one as a narrative that will be reconstructed, months or years later, from whatever they left behind.

October 7, 2026

NJDEP Enforcement Insight

You Received an NJDEP Notice of Violation. What Should You Do Next?

Receiving a Notice of Violation (“NOV”) from the New Jersey Department of Environmental Protection (“NJDEP”) can raise immediate concerns for a business. An NOV means that NJDEP has determined that a violation occurred, typically identifies the alleged violation, and indicates a deadline for achieving compliance. An NOV does not itself carry a civil administrative penalty and generally cannot be appealed. However, failure to address an NOV may result in additional enforcement action. For companies receiving an NOV, their first priority should be to understand the alleged violation and determine the appropriate response. Review the Allegations and Preserve the Record The company should first identify the statute, regulation, permit condition, or other requirement that NJDEP claims was violated. It should also determine what corrective action NJDEP is requiring and identify any applicable response or compliance deadlines. While the compliance deadline is sometimes set forth directly in the NOV, you should always refer to the applicable law to be sure of the compliance deadline. The underlying facts should then be reviewed. Depending on the matter, relevant materials may include permits, monitoring reports, inspection records, photographs, sampling results, operating logs, manifests, maintenance records, emails, and communications with environmental consultants. These records can be important in determining whether NJDEP has accurately described the violation and, if the matter escalates, in responding to a later enforcement action. Companies should also avoid assuming either that NJDEP is necessarily correct or that the alleged violation should automatically be disputed. Some violations are straightforward. Others may depend on technical issues, regulatory interpretation, sampling methodology, or facts that NJDEP did not have when it issued the NOV. Address Compliance and Enforcement Separately If the NOV identifies an ongoing compliance issue, the company should evaluate what steps are necessary to correct it. Corrective action, however, does not necessarily resolve the enforcement issue. Sometimes, remedying the issue will prevent NJDEP from pursuing additional enforcement, but sometimes the violation is so significant that NJDEP may pursue additional enforcement regardless of any prompt corrective actions. Additionally, a company may take corrective action without agreeing with every legal or factual conclusion in an NOV. Companies should carefully consider whether to engage with NJDEP regarding any disagreements. An NOV is not a final order, so it may not be challenged directly, but companies can informally discuss the NOV with NJDEP. Still, it is sometimes easier to simply take corrective action and doing so does not constitute an admission of fault or liability. NJDEP states that an NOV may form the basis for additional enforcement if compliance is not achieved. NJDEP may also issue more formal enforcement documents, including an Administrative Order, Notice of Civil Administrative Penalty Assessment, or an Administrative Order and Notice of Civil Administrative Penalty Assessment (“AONOCAPA”). Those documents can carry different legal consequences and appeal rights. Conclusion Many NOVs involve both technical and legal issues. Environmental consultants, engineers, and facility personnel may be best positioned to evaluate the underlying environmental condition and determine the appropriate corrective measures. Legal counsel may become more important where the alleged violation is disputed, penalties could be significant, the company has prior enforcement history, operations or permits could be affected, or additional enforcement appears likely. Coordination is particularly important. A technical response to NJDEP may also contain factual statements or conclusions that become relevant if the matter later develops into a penalty case. Not every NJDEP NOV becomes a significant enforcement matter. In many cases, correction of the violation may end the matter. But the NOV stage is also an important opportunity to understand NJDEP’s concerns, evaluate the facts, address any compliance issue, and develop an appropriate response before the matter potentially escalates.

October 6, 2026

Estates and Trusts

Trust Hygiene: Regular Maintenance for Your Revocable Trust

Most people understand that bringing home a family dog is only the beginning of the responsibility. A dog needs to be fed, exercised, groomed, and taken to the veterinarian for regular checkups. Without ongoing care, even the healthiest pet can develop problems over time. A revocable trust is much the same. Many people believe that once they sign their trust documents, their estate plan is complete. In reality, creating the trust is just the first step. To function as intended, a trust requires ongoing attention and maintenance. Think of it as practicing good “trust hygiene.” Trust hygiene helps ensure that your trust remains properly funded, reflects your current wishes, and stands ready to accomplish its goals when needed. Without regular maintenance, even a carefully drafted trust may fail to deliver the benefits it was designed to provide. Feed the Trust: Proper Funding Is Essential A dog cannot thrive without food, and a trust cannot function effectively without assets. One of the most common estate-planning mistakes is failing to fund a revocable trust after it has been created. Funding simply means transferring assets into the trust or coordinating beneficiary designations so the assets ultimately flow into the trust. Depending on the asset, funding may involve different tasks: Transferring real estate into the trust through a new deed Retitling bank or brokerage accounts in the name of the trust Assigning ownership interests in closely held businesses Naming the trust as a beneficiary of certain assets when appropriate Moving your furniture, artwork, jewelry, and other personal property to the trust through an “assignment” Many people are surprised to learn that signing a trust agreement does not automatically transfer ownership of their assets. If assets remain titled in an individual’s name, they may still be subject to probate despite the existence of a trust. A trust that has not been properly funded is like a dog that has not been fed — it cannot thrive and perform the functions for which it was intended. Schedule Regular Checkups Good trust hygiene includes periodic reviews. Families’ financial lives rarely remain static. People buy homes, sell investment properties, open new accounts, start businesses, inherit assets, and make other significant financial changes throughout their lives. Each of these events creates an opportunity for assets to fall outside the trust. For example, a couple may have properly funded their trust when it was established but later purchased a vacation home and never transferred it into the trust. Years later, that single oversight could create an expensive and unnecessary probate proceeding. Periodic trust reviews help identify these issues before they become problems. As a general rule, it is wise to review your estate plan every few years and after major life or financial events. Keep Trustee Appointments Current Another important aspect of trust hygiene is reviewing the individuals named to serve as trustee and successor trustee. When a trust is first established, the successor trustee you have named may be the obvious choice. But circumstances can change significantly over time. A successor trustee may relocate, develop health issues, become unwilling to serve, or simply no longer be the best fit for the role. Family dynamics can also evolve in unexpected ways. Regular reviews provide an opportunity to confirm that the people named in the trust remain capable and appropriate choices. Updating trustee appointments when necessary can help avoid administrative difficulties later on. Review Beneficiaries and Distribution Plans Just as families change, estate plans should evolve as well. Children grow up. Grandchildren are born. Marriages begin and end. Beneficiaries develop different financial needs and levels of maturity. What seemed like the perfect distribution plan 10 years ago may no longer reflect your current objectives. A trust review provides an opportunity to revisit beneficiary provisions and determine whether they still accomplish your goals. In some cases, adjustments may be appropriate to account for changing family circumstances, special-needs concerns, creditor-protection issues, or evolving tax considerations. Good trust hygiene means ensuring that your trust continues to reflect your family’s present reality rather than a snapshot of life from many years ago. Don’t Forget New Assets One of the easiest trust hygiene mistakes is forgetting to update ownership when acquiring new assets. People often focus on funding the assets they own when the trust is created but overlook assets acquired later. A new home, investment account, business interest, or valuable piece of property may never be coordinated with the trust. Over time, these omissions can undermine the effectiveness of an otherwise well-designed estate plan. Whenever you acquire a significant new asset, it is worth asking a simple question: “How does this fit into my trust plan?” That one question can help prevent many common estate administration problems. Healthy Trusts Require Ongoing Attention A revocable trust is not a “set it and forget it” estate-planning tool. Like any important part of your financial life, it benefits from regular maintenance. Proper funding, periodic reviews, updated trustee appointments, current beneficiary provisions, and attention to newly acquired assets all contribute to good trust hygiene. The goal is simple: When the trust is needed, it should work exactly as intended. Schedule a Trust Hygiene Review If it has been several years since your trust was reviewed, or if you have purchased property, opened new accounts, experienced a major life event, or are simply not sure whether your trust is fully funded, now may be the perfect time for a trust hygiene review.

October 5, 2026

Commercial Litigation

When Tax Becomes Trial: Why Courtroom Experience Changes Federal Tax Litigation

Most taxpayers do not begin an IRS dispute thinking about trial. They are usually focused on a much more immediate question: Is the IRS right? That makes sense. Tax controversies often begin with an examination, a notice, a proposed adjustment, a penalty, or a denial of a refund claim. At that stage, the dispute may feel primarily technical. What does the Internal Revenue Code say? How did the IRS calculate the adjustment? What documents support the taxpayer’s position? But when a dispute becomes serious enough that litigation is a realistic possibility, the questions become more about what you can prove. First, who has the burden of proof? And then, who are the witnesses, both good and bad, and will they still be available if this case goes to trial, even if it’s years from now? What documents exist? What story do they tell? And who will ultimately be deciding whether that story is credible? That shift in mindset is critical. Federal tax litigation requires more than knowing the tax law. It requires building a case that can withstand scrutiny in a courtroom. And that process often begins long before anyone files a petition or complaint. What Happens Before Litigation Does Not Stay There One of the biggest mistakes taxpayers and advisors can make is treating the administrative process as though it exists in a vacuum. It does not. Yes, when litigation starts it is a de novo proceeding (Latin for starting “anew”) but, what happened during the administrative process does not simply disappear when the case reaches court. Positions taken during an audit, appeals conference, protest, refund claim, penalty response, or other administrative proceeding can follow the taxpayer into litigation. That does not mean every statement made during an IRS examination becomes binding. But explanations, documents, factual representations, and valuation positions advanced early in the dispute can later become part of the case. If the taxpayer tells the IRS one story during the examination and a materially different story appears at trial, someone is going to ask why. If a business tells the Service that a transaction had one purpose in response to an Information Document Request and later relies on a different purpose in litigation, that inconsistency may affect credibility. And if documents are not preserved because everyone assumes the dispute will be resolved administratively, litigation counsel cannot recreate them years later. At that point, you may find yourself hoping the IRS kept the document in its administrative file and produces it when needed. Hope is not a preferred legal strategy. The administrative process is therefore not merely something to “get through” before litigation. It is often the beginning of the litigation record, even if nobody wants or expects the matter to end up in court. That does not mean every response to the IRS should be drafted as though it will someday be projected onto a courtroom screen. But when the amount at stake is significant, the allegations are serious, or the dispute is unlikely to resolve quickly, it is worth asking how today’s position may affect tomorrow’s case. Where the Case Is Tried Can Change the Case Taxpayers may have different paths to judicial review depending on the type of dispute. The U.S. Tax Court is generally a prepayment forum. In a traditional deficiency case, that means a taxpayer can challenge the IRS’s determination without first paying the disputed tax. For many taxpayers, that is an enormous advantage. Tax Court cases, however, are decided by judges, not juries. The U.S. Court of Federal Claims is another federal forum for certain tax cases, but it likewise conducts bench trials rather than jury trials. Federal district court litigation is different. Generally, the taxpayer must first pay the tax at issue, satisfy the applicable refund claim requirements, and then sue for a refund. In appropriate tax refund cases, either party may request a jury. The government lawyers across the table are different too. In Tax Court, the government is generally represented by the IRS Office of Chief Counsel. In federal district court and the Court of Federal Claims, the United States is represented by the Department of Justice. These differences are not cosmetic. Where the case is tried, who the opposing lawyers are, and whether the ultimate decision-maker is a tax judge or a jury can materially affect the presentation of the case, the facts that receive the most attention, the experts needed, the level of technical detail that is useful, timing, cost, and the practical leverage available to each side. Forum is not simply a question of where a complaint gets filed. Sometimes it changes the case itself. A Good Tax Position Still Has to Be Proved Tax cases frequently turn on facts that are far less tidy than the tax return. And by the time litigation begins, significant time has often passed. Everyone suddenly wishes the record is better and the evidence to be stronger. It is great when a client remembers an important conversation. It is much better when the client remembers the conversation and we have the contemporaneous email confirming it. Testimony is evidence. Testimony supported by contemporaneous documentation is better evidence. And life happens. An employee who understood the transaction left the company three years ago. The CPA changed firms. The person responsible for maintaining the records retired. The business reason for a decision was obvious to everyone at the time, so nobody thought there was any reason to write it down. Until there was. That’s where trial experience changes the way a dispute is evaluated. A litigator has to consider not only about whether a fact is true, but also whether it can be proved – and, when there are several ways to prove it, which one is likely the most effective. There is no such thing as an automatic win simply because the taxpayer has a strong legal argument. A technically strong tax position with a poor factual record can become a very difficult case. Judges and Juries Hear the Same Case Differently One of the most significant strategic differences in federal tax litigation is whether the ultimate factfinder will be a judge or a jury. A judge works with complicated legal disputes every day. Tax Court also lives and breathes federal tax law. That changes the presentation. Tolerance for courtroom drama tends to diminish. A Tax Court trial can involve highly technical testimony, extensive expert reports, complicated statutory frameworks, and extensive post-trial briefing. The judge has the benefit of being able to work through that factual and legal record over time. A jury trial is fundamentally different. Jurors generally do not arrive at the courthouse with a working knowledge of the Internal Revenue Code. They are people being asked to understand a complicated dispute, determine what actually happened, decide who they believe, and then apply the law the judge gives them. The facts matter. The story matters. Presentation matters. And the client matters. A technically sophisticated position can be badly damaged if the taxpayer appears evasive, inconsistent, or unable to explain why certain actions were (or were not) taken. Conversely, a complicated case can become understandable when the witnesses are credible, the documents support their explanation, and the evidence fits together in a coherent story. Consider a promoter penalty case. The underlying tax structure and statutory requirements may be complicated. But once the dispute reaches a jury, the most important questions become remarkably direct: What was the arrangement? What did the person actually say? What did they know at the time? What did they rely on? What evidence supports the government’s allegations? A jury has to understand the answers. That does not mean oversimplifying the case or pretending complicated tax law is simple. It means separating what is technically interesting from what is actually important and explaining the latter in a way that someone who has never read the Internal Revenue Code can follow. The burden of proof matters too. In many tax disputes, the taxpayer carries it. In others, including certain penalty cases, the government bears the burden on critical issues. Where a jury is legally available, deciding to give up that jury can mean giving up a meaningful strategic advantage. That decision should be made deliberately, not simply because bench trials are more familiar to most tax practitioners. Time Can Be Part of the Litigation Strategy There is another important difference between judge-tried tax litigation and jury litigation that is easy to overlook: when do you get an answer? In a jury trial, once the evidence is complete and the case is submitted, the jury deliberates and returns a verdict. The parties generally know the answer before they leave the courthouse. A Tax Court case works differently. After trial, many cases require extensive post-trial briefing. That process alone can take months. The judge then reviews the testimony, exhibits, proposed findings of fact, and legal arguments before issuing an opinion. There is no fixed deadline for when that opinion must issue. In a complicated case, the wait can be substantial. Sometimes it is measured in years. And time can have a real economic cost. In many Tax Court deficiency cases, a taxpayer does not have to pay the disputed tax while the case is pending. That is one of the great benefits of the Tax Court as a prepayment forum. But if tax ultimately remains due, interest generally continues to accrue on the unpaid liability until the taxpayer takes time to stop it. That creates a counterintuitive reality: the least expensive forum to enter is not necessarily the least expensive forum when everything is over. Federal district court refund litigation generally requires payment first. That can make the federal district court route more expensive upfront — and, for some taxpayers, financially impossible. A jury case may also require concentrated discovery, experts, significant trial preparation, and greater expense over a shorter period. But in the right case, there is value in getting an answer. A verdict can provide economic certainty while a Tax Court case may still be awaiting an opinion. That matters when interest is running. It matters when a disputed liability affects financing, financial statements, transactions, or business planning. And it matters when management has already spent years living with a tax controversy. None of this means district court is always preferable to Tax Court. It is not. The ability to challenge an asserted deficiency without first paying it is indispensable for many taxpayers, and there are options for addressing the running of interest that should be discussed with counsel. The point is simpler: forum selection has economic consequences as well as legal ones. The analysis should include both the cost of getting to trial and the cost of waiting for the dispute to end. Trial Strategy Should Begin Before Trial The best time to start thinking about trial is not the week before trial. It is when the dispute first begins showing signs that it may not resolve easily. That awareness can change relatively simple decisions. Save the IRS notice. Save the envelope it came in. Keep the mailing receipt and tracking information when something important goes to the IRS. Document when notices were actually received. Preserve the business records underlying the position. Identify the employees, accountants, consultants, and advisors who actually know what happened. Preserve the contemporaneous business reason for a decision instead of assuming someone will remember it four years later. And when the stakes warrant it, consider bringing litigation counsel into the process before the administrative proceeding is finished. That does not mean every audit needs a trial lawyer. Many do not. But significant cases are easier to litigate when someone was thinking about the evidence before the evidence disappeared. Mailing records are a surprisingly good example. The date on an IRS notice, the date it was mailed, when the taxpayer actually received it, whether it went to the correct address, and when the taxpayer responded can become critical procedural facts. The same is true when the taxpayer sends something to the IRS. Years later, “I know we mailed it” is nowhere near as useful as the certified-mail receipt or tracking record showing that you did. Recent ERC disputes have brought that lesson into particularly sharp focus, with taxpayers sometimes needing to establish exactly when a claim or response was mailed. This is why one of the least glamorous pieces of litigation advice is also one of the most useful: Save the envelope. And save the receipt. Better yet, apply the same mindset to the entire dispute. The Bottom Line John Adams famously told a jury during the Boston Massacre trials that “facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.” More than 250 years later, trial lawyers are still learning the same lesson. By the time a tax dispute reaches a courtroom, most of the facts that will decide the case have already happened. The witnesses have had the conversations. The business made the decisions. The documents were created or they were not. The IRS took its position, and the taxpayer responded. Good tax law matters. But once tax becomes trial, being right is only part of the job. You still have to prove it. The best litigation strategy is therefore not the one invented on the eve of trial. It is the one that began while the evidence was still available, the witnesses still remembered what happened, and the taxpayer still had choices about how – and where - to fight.

October 5, 2026

Mergers and Acquisitions

AI Can Prepare You to Sell a Business, but It Can’t Replace Experienced Deal Counsel

Artificial intelligence (AI) is rapidly becoming a larger part of mergers and acquisitions (M&A). For a business owner preparing to sell, AI tools can organize information, accelerate document review, and reduce some of the burden of a demanding diligence process. While those capabilities are certainly meaningful, they should not be confused with deal strategy. AI can help prepare a seller for a transaction, but it lacks the ability to determine how to position the business, preserve the negotiated economics, or control liability after closing. Selling a business is much more involved than just collecting documents and answering questions. It is a negotiated allocation of value and risk. The seller may begin with an attractive headline price, but the amount ultimately retained can depend on dozens of provisions that require context, judgment, and a clear understanding of the seller's priorities. These are all things AI cannot understand. When used thoughtfully, AI can be helpful early in the transaction process. It may assist in generating a diligence checklist, classifying documents for a virtual data room, reviewing contracts for recurring provisions, and preparing summaries for the deal team. For a seller looking at years of agreements, corporate records, employment materials, and financial information, that organizational support can be invaluable, saving time and helping identify areas that deserve closer attention. But a well-organized data room is not the same as a well-positioned business. The critical question is not merely, “What information do we have?” It is, “How do we present this company in a way that supports its value while addressing risk before the buyer uses it as leverage?” Experienced deal counsel can strategically determine which issues should be resolved before going to market, how diligence should be sequenced, and how disclosures should be framed accurately without creating unnecessary exposure. The headline price is only the beginning Every seller wants the highest possible purchase price. But the stated price in a letter of intent or purchase agreement does not always equal what the seller receives at closing or what will remain after the deal is complete. Diligence findings can trigger price reductions, working capital adjustments can move significant dollars after closing, earnouts can make a portion of the sale dependent on future performance and buyer-controlled decisions, and escrows and holdbacks can delay access to proceeds. While AI may be able to flag these provisions or compare them with language found in other agreements, it is critical to have an understanding as to how the provisions interact and how they affect this seller's actual economics. A working capital definition that appears ordinary may exclude an item that is central to the business. An earnout metric may sound objective but become difficult to achieve after the buyer integrates the company. A seemingly modest indemnity can become costly if it is paired with broad representations, a long survival period, and an inadequate liability cap. Experienced counsel is trained to look beyond whether a term is simply present. They evaluate how it operates, where it shifts leverage, and whether it is consistent with the commercial bargain the seller believes it made. AI cannot negotiate post-closing liability For many sellers, the provisions governing post-closing exposure are among the most consequential parts of the transaction. The sale price loses some of its meaning if too much remains subject to claims, repayment obligations, or disputes long after closing. Controlling that exposure requires negotiation, not just identifying standard clauses. Deal counsel works to narrow representations and warranties, limit indemnification obligations, reduce escrow or holdback amounts, establish appropriate liability caps and baskets, define exclusions carefully, and shorten survival periods where the circumstances support it. Counsel also considers how those protections fit together. Winning a lower cap may offer little comfort if a broad exception effectively swallows it. A shorter survival period may not solve the problem if the most significant representations remain outside that limit. This is where experience directly impacts the economics of a deal. A lawyer who has seen claims arise under similar language can anticipate how a provision may be used when the parties no longer share the optimism of signing day. AI analyzes text. It does not advocate for the seller, read the negotiating dynamics, or make the tradeoffs required to bring the parties to agreement. A technically correct answer may still be the wrong deal decision M&A negotiations are filled with decisions that do not have a single correct answer. Should the seller resist a buyer's request or conserve leverage for a more important issue? Should a potential concern be disclosed now, investigated further, or addressed through a specific contractual solution? Is a provision worth extending the negotiation, or is accepting it the better choice given the buyer, the timing, and the seller's objectives? Coming to the right answer requires understanding context. It may turn on the strength of the buyer's alternatives, the seller's tolerance for delay, the likelihood that the issue will create real exposure, and the relative value of other concessions under discussion. It also requires an understanding of the personalities at the table and how aggressively a point can be pressed without jeopardizing the deal. That judgment is built through experience and cannot be generated from contract language alone. Overreliance on AI can create new risks The efficiency of AI can create a false sense of completeness. A seller may assume that an AI-generated contract summary captured every material obligation or that an automated diligence review identified every inconsistency. But incomplete context, ambiguous drafting, poor source documents, or a seemingly minor error can lead to inaccurate disclosures, missed consent requirements, incomplete diligence responses, and post-closing disputes. Confidentiality, data security and the handling of privileged information also require careful attention when AI tools are used in a transaction. The responsibility for the deal lies with the parties and their advisors, not the technology. They remain accountable for the accuracy of disclosures, the completeness of responses, and the meaning of the documents they sign. AI output should therefore be treated as a work product to validate, never something to accept without review. Use AI to support the deal team, not substitute for it Sellers should take advantage of AI tools that make transactions more efficient and allow for better organization, faster review, and earlier identification of potential issues. But the strongest approach is to use those tools under the direction of experienced advisors who understand what matters, can test the output, and know how to convert information into strategy.

October 5, 2026

Estates and Trusts

Will Challenges in the DMV Region: Capacity, Undue Influence, and Fraud

Will contests (aka caveats or challenges) in the District of Columbia, Maryland, and Virginia (the "DMV" region), as in most U.S. jurisdictions, in fact, share some common features: (i) capacity remains a low threshold; (ii)  undue influence generally requires proof that the testator's free agency was overcome (with special circumstances for fiduciaries); and (iii) fraud in procurement (aka "fraud in the inducement") typically requires proof of material misrepresentation affecting testamentary intent. While similar, each jurisdiction's statutory and decisional authorities have, as one might expect, evolved differently. Virginia has recently supplemented its common-law framework through legislation creating enhanced presumptions of undue influence in certain will and trust contests, while Maryland and the District of Columbia continue to rely principally upon traditional judicial formulations.1 Jurisdiction Capacity    Undue Influence Fraud        Virginia Parson v. Miller Parson v. Miller; Va. Code § 64.2-454.1 Typically pled with undue influence Maryland Lynn v. Magness; Castruccio v. Estate of Castruccio Upman v. Clarke Upman provides closest modern discussion District of Columbia D.C. Code § 18-102; In re Estate of Wilson Limited published authority Often litigated alongside capacity challenges under D.C. Code § 18-102 Virginia's bellwether is Parson v. Miller,2 where the Supreme Court reversed a jury verdict that had set aside a will on grounds of lack of testamentary capacity and undue influence. The Court held that the contestant's evidence, largely circumstantial and rooted in family dynamics, was legally insufficient to sustain a finding of undue influence. The opinion remains Virginia's leading judicial analysis of the circumstances giving rise to a presumption of undue influence and the evidentiary consequences that follow. The common-law framework articulated in Parson v. Miller has since been codified and supplemented by the General Assembly. In 2022, the Virginia General Assembly enacted Section 64.2-454.1, providing that in defined situations where a presumption of undue influence arises in a will contest, the finder of fact shall presume undue influence unless persuaded that the decedent intended the challenged instrument to operate as his will. The provision materially strengthens the position of contestants once the predicate facts giving rise to the presumption have been established and reflects a legislative shift toward greater scrutiny of suspicious testamentary transfers.3 Maryland's appellate courts have likewise adhered to traditional capacity principles. In Lynn v. Magness,4 the Court of Appeals articulated the familiar rule that a testator must understand the nature of the testamentary act, the property being disposed of, and the natural objects of his bounty. More recently, in Castruccio v. Estate of Castruccio,5 the Court reaffirmed Maryland's adherence to longstanding testamentary principles while resolving an execution-formalities dispute under Md. Code Ann., Estates & Trusts § 4-102. And in Upman v. Clarke,6 the Court held that a revocable trust functioning as a will substitute must be evaluated under the testamentary undue-influence standard rather than the inter vivos gift standard. Maryland's recent enactment of the Maryland SAFE Act, codified principally at Md. Code Ann., Estates & Trusts §§ 13-601 et seq., has expanded remedies for elder financial exploitation but has not altered traditional burdens of proof or presumptions governing will contests. As a result, Maryland appears, at least, to remain substantially committed to common-law analysis of testamentary capacity and undue influence, even as litigants increasingly pair those claims with statutory exploitation remedies. The District of Columbia, by contrast, has fewer published appellate decisions squarely addressing undue influence in the will contest context. But the statutory baseline is clear: a testator must be "of sound and disposing mind" at execution. In practice, the D.C. Superior Court Probate Division generally analyzes testamentary-capacity disputes through principles similar to those employed in neighboring jurisdictions, focusing on whether the testator understood the nature of the testamentary act, the property involved, and the natural objects of his bounty. See In re Estate of Wilson, 416 A.2d 228 (D.C. 1980); D.C. Code § 18-102.7 1 Execution‑formalities disputes and forensic challenges to testamentary documents are beyond the scope of this analysis. For more on challenging the bona fides of a will document, itself, see my March 26, 2026 publication, “Will Challenge Litigation: Forensic Expert Cross-Examination.” For more on execution-formalities disputes, see my posts regarding “’de facto” Wills and the Harmless Error Rule,” Part One, April 27, 2023; and Part 2, May 22, 2023 (Offit Kurman Blog); and “’De Facto Wills’: Estate Planning’s Dirty Little Secret?” Virginia State Bar Trusts and Estates Section Newsletter, Vol. 22 No. 13. 2 Parson v. Miller, 296 Va. 509, 822 S.E.2d 169 (2018). 3 See also Va. Code § 64.2-724.1 (effective July 1, 2026), extending a comparable presumption-of-undue-influence framework to certain trust contests. 4 Lynn v. Magness, 191 Md. 674, 62 A.2d 604 (1948). 5 Castruccio v. Estate of Castruccio, 456 Md. 1 (2017). 6 Upman v. Clarke, 359 Md. 32 (2000). 7 See In re Estate of Wilson, 416 A.2d 228 (D.C. 1980) (discussing testamentary capacity); D.C. Code § 18-102.

October 2, 2026

Commercial Litigation

What Parents Need to Know About Title IX in Private K-12 Schools

Title IX is a federal civil rights law that prohibits sex-based discrimination in education programs and activities that receive federal financial assistance. It can apply across a broad range of school programs and concerns, including academics, athletics, student housing, school-sponsored programs and activities, admissions where applicable, pregnancy-related protections, and responses to sexual harassment and other sex-based misconduct. For families at private K-12 schools, the first question is whether Title IX applies at all. If it does not, the school’s policies, procedures, and available remedies determine how concerns are addressed. Understanding Title IX Coverage That coverage question is especially important for private K-12 schools because not all are subject to Title IX. In general, Title IX applies only when a school receives federal financial assistance. For example, in general, religious institutions do not receive federal funding and, as a result, are exempt from Title IX. Because funding arrangements and exemptions can vary, families should ask whether the school is covered by Title IX, whether it has designated a Title IX coordinator, and what formal process it uses to address sex-based discrimination complaints. The legal landscape also continues to evolve. Following a federal court decision issued on January 9, 2025, schools covered by Title IX currently operate under the 2020 Title IX regulations rather than the 2024 Final Rule. What Happens if a Private School Is Not Covered by Title IX? If a private school is not covered by Title IX, that does not necessarily mean the concern will be ignored or that no process exists. Instead, the matter is often handled under the school's handbook, code of conduct, student safety policies, employment policies, or other complaint procedures. In some situations, other federal, state, or local laws may also apply, depending on the facts and the type of school involved. In New York, the state legislature has opted to separately address campus sexual assault pursuant to New York Education Law Article 129-B. NY Article 129-B, otherwise known as the "Enough is Enough" law, requires all colleges and universities in the state to adopt comprehensive rules regarding sexual assault, dating violence, domestic violence, and stalking. Families should ask who will investigate the complaint, what policy will be used, what interim or supportive measures are available, whether there is an appeal process, and when the school expects to reach a decision. When Title IX does not apply, the school's response may look more like an internal investigatory process than a formal Title IX grievance procedure. That means the procedural steps, timelines, and available remedies may be defined by school policy rather than federal regulation. In serious situations, families may also wish to consider whether reporting to law enforcement or seeking civil legal remedies is appropriate. In all cases, it’s important for families to seek legal advice as soon as they become aware of the campus issue to determine the best way to route their concerns. Reporting Concerns and Seeking Support If a student experiences sexual harassment or other sex-based discrimination, families should promptly report the concern to the appropriate school official. At a covered school, that will often be the Title IX coordinator, who can explain the school's procedures, discuss available supportive measures, and answer questions about the complaint process. If a family believes a covered school has not adequately addressed a complaint, it may file a complaint with the U.S. Department of Education's Office for Civil Rights or seek legal remedies through the court system. What to Expect During the Process Every school's procedures differ, but Title IX investigations generally involve gathering information from the parties and witnesses, reviewing relevant documents, and evaluating the parties’ credibility. Schools typically notify the parties of the complaint, explain the process, and provide information about available supportive measures. Investigation timelines vary, but many schools aim to complete investigations within approximately 60 days. Unlike many college and university procedures, K-12 schools are not required to hold live hearings. Religious Schools and Title IX Some private schools are affiliated with religious organizations. Even when a religious school receives federal financial assistance, it may qualify for a religious exemption if compliance with certain Title IX requirements would conflict with its religious tenets. Because the scope of these exemptions has been the subject of ongoing litigation and regulatory debate, families should not assume that Title IX applies identically at every religious school. Parents may wish to ask whether the school claims any Title IX religious exemptions and how those exemptions affect its policies and procedures. Practical Tips for Families Families can play an important role in protecting a student's rights by: Determining whether the school receives federal financial assistance Reporting concerns promptly and identifying the appropriate school contact Preserving all documentary and electronic evidence Keeping records of emails, meetings, notices, and other communications Requesting information about the school's process, timeline, and available supportive measures Following up on important conversations with the school in writing Asking for an explanation of how the issue affects the student's educational experience, including attendance, participation, safety, or academic performance Effective Advocacy For families at private K-12 schools, effective advocacy begins with understanding whether the school is covered by Title IX. If it is, the school should be following the mandated grievance procedure outline under the Title IX Regulations. If it is not, the case will often be handled under the school's own policies and procedures instead. In either situation, families should ask who is responsible for the response, what rules apply, what supportive measures are available, and what timeline the school expects to follow. Whether the matter proceeds through Title IX or through school-specific procedures, clear communication, careful documentation, and timely reporting can help families seek support and protect a student's access to educational opportunities.

September 29, 2026

NJDEP Enforcement Insight

NJDEP NOV vs. AONOCAPA: What’s the Difference?

A Notice of Violation (“NOV”) and an Administrative Order and Notice of Civil Administrative Penalty Assessment (“AONOCAPA”) are both commonly used NJDEP enforcement documents, but they have significantly different consequences. An NOV generally puts a company on notice of an alleged violation and provides an opportunity to achieve compliance. An AONOCAPA is a formal enforcement action that can order corrective action, impose a civil administrative penalty, and provide the recipient with a limited period to request an administrative hearing. If a hearing is not requested, the recipient generally waives objections to the alleged violation and penalty determination. Understanding which document NJDEP has issued is therefore important to determining the appropriate response. What Is an NJDEP Notice of Violation? NJDEP describes an NOV as an enforcement action that advises a regulated party that a violation has occurred. An NOV typically identifies the violation, the date it was discovered, and a compliance deadline. NOVs do not themselves carry civil administrative penalties. NJDEP also states that an NOV cannot be appealed through its administrative hearing process. In many instances, if the violation is corrected, no further enforcement action follows. That does not mean an NOV should be ignored. An NOV may become the basis for additional enforcement if NJDEP concludes that compliance was not achieved or determines that further action is appropriate. For this reason, companies should use the NOV stage to evaluate the factual and technical basis for NJDEP’s allegations and determine what corrective action may be required. What Is an AONOCAPA? An AONOCAPA is more significant. According to NJDEP, an AONOCAPA may be issued after a company fails to comply with an NOV or where NJDEP determines that a violation is not minor. Unlike an NOV, an AONOCAPA carries a civil administrative penalty and may also order specific corrective action. An AONOCAPA must be contested through the administrative hearing process within the applicable time frames.  If not, the recipient is generally deemed to have waived all objections to the alleged violation, the required corrective actions, and any penalty assessments. The deadline for requesting a hearing is not uniform across all NJDEP programs. Hearing deadlines may vary depending on the program and document, generally ranging from approximately 10 to 35 days. The specific enforcement document and applicable regulations should therefore be reviewed immediately. Contesting an AONOCAPA through a hearing request should be done in all instances and does not generally require extensive litigation but is essential to preserve objections and provide a basis for negotiating a resolution of the alleged violations. Why the Difference Matters The distinction affects both timing and strategy. With an NOV, the immediate focus may be on investigating the violation, addressing compliance, and determining whether NJDEP’s allegations are accurate. With an AONOCAPA, the company must also consider whether to preserve its right to an administrative hearing, whether the penalty is appropriate, and whether NJDEP’s factual and legal conclusions should be challenged. Companies receiving correspondence from NJDEP should therefore begin by identifying exactly what NJDEP has issued. An NOV and an AONOCAPA may arise out of similar facts, but they do not necessarily create the same obligations, deadlines, or rights.

September 29, 2026

Bankruptcy

The Art of Eliminating a $13 Million Obligation

The Chapter 11 plan of Nikola Corporation wiped out the company's obligation to pay $13 million under a prepetition settlement agreement resolving a securities fraud class action. The result illustrates the power of Bankruptcy Code section 510(b) to transform certain categories of unsecured claims into equity-type claims. The underlying securities litigation arose from one of the most publicized corporate collapses of the last decade. Nikola was founded with an ambitious vision of developing hydrogen-powered and electric commercial vehicles. For a time, it became one of the market's most celebrated emerging clean-energy companies, achieving a multibillion-dollar valuation despite having only limited commercial operations. The company's fortunes changed dramatically after a series of public allegations that many of its statements concerning vehicle capabilities, technological achievements, development milestones, and commercial prospects were materially misleading. Investors alleged that they purchased Nikola stock at artificially inflated prices based on those representations. When contrary information became public through a series of corrective disclosures, Nikola's stock price declined sharply, generating substantial losses for shareholders. A securities class action followed in the United States District Court for the District of Arizona. The class plaintiffs alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5. As is typical in securities fraud litigation, the claimed damages were tied directly to the decline in Nikola's stock price following the corrective disclosures. The theory was straightforward: investors allegedly paid more for Nikola shares than they otherwise would have paid had the market known the truth. Prior to its bankruptcy filing, Nikola and the class plaintiffs participated in mediation and reached a settlement memorialized in a January 2025 term sheet. Under the proposed settlement, Nikola agreed to pay the class $13 million in cash together with other consideration. The settlement appeared to transform a disputed securities fraud claim into a fixed contractual payment obligation. Indeed, the settlement term sheet contemplated that if Nikola later filed bankruptcy, it would seek court approval of the settlement under Bankruptcy Rule 9019. Less than a month later, however, Nikola commenced its Chapter 11 cases. The class plaintiffs filed a proof of claim asserting entitlement to at least the $13 million. At first glance, the claim appeared stronger than a typical unliquidated securities claim. The parties had already negotiated a resolution, agreed on a payment amount, and documented the settlement terms. Yet bankruptcy law focuses not merely on the form of a claim but on its origin. That distinction became outcome-determinative. Section 510(b) requires mandatory subordination of claims "for damages arising from the purchase or sale" of a debtor's securities. Congress enacted the provision to preserve the traditional risk allocation between creditors and shareholders. Creditors bargain for repayment. Equity investors bargain for potential upside while assuming the risk that the enterprise may fail. When an investor's losses stem from ownership or purchase of stock, section 510(b) generally prevents that investor from elevating those losses to parity with ordinary unsecured creditors. Nikola argued that the class claim, even after settlement, still arose from the purchase and sale of Nikola stock. The settlement had changed the amount of the claim, but not its essential character. The economic injury remained the same: losses allegedly suffered because investors purchased Nikola shares at inflated prices and later experienced a decline in value when the truth emerged. The bankruptcy court agreed, characterizing the claim as a textbook section 510(b) claim seeking damages measured by the diminution in value of the debtor's equity securities. As a result, Nikola's plan placed the securities settlement claim into a separate subordinated class reserved for claims subject to section 510(b). Because senior creditor classes were not being paid in full, the subordinated class was projected to receive no recovery. A claim that had been negotiated down to a $13 million settlement and appeared destined for payment outside bankruptcy was relegated to the bottom of the distribution waterfall and effectively eliminated. The class plaintiffs did not seriously dispute that section 510(b) applied. Instead, they focused on procedure, arguing that Nikola could not subordinate their claim through plan confirmation alone. According to the plaintiffs, the debtor was required to file a formal claim objection or commence an adversary proceeding before subordinating the claim. Both the bankruptcy court and the district court rejected that argument, concluding that section 510(b) subordination concerns priority and treatment rather than claim allowance and that Bankruptcy Rule 7001(h) expressly permits subordination to be implemented through a chapter 11 plan. The lesson from Nikola is that a settlement agreement may create a contractual right to payment. Still, it does not necessarily erase the nature of the underlying injury that gave rise to the obligation. Where the economic reality remains shareholder loss arising from the purchase or sale of the debtor's stock, section 510(b) may continue to apply. In Nikola, that principle transformed a seemingly fixed $13 million settlement obligation into a subordinated claim that ultimately recovered nothing.

September 29, 2026

Landlord Representation

D.C.’s Pets in Housing Law: October 1 is Only the Beginning

October 1, 2026 marks a major change in how D.C. rental housing providers can charge for and regulate pets. Pet Deposits are capped, Pet Rent is limited, and breed, size, and weight-based restrictions are barred for covered leases. While the rules look straightforward on their face, squaring them with D.C.’s existing laws on rent control, utility fees, and security deposits is not. Why October 1? The Pets in Housing Amendment Act of 2024 became effective in March 2025, but a fiscal provision requiring pet-friendly homeless-shelter funding held up its implementation. The fiscal year 2027 budget legislation limits the funding condition to the still-unfunded pet-friendly shelter requirement, allowing the provisions regulating rental housing providers to apply as of October 1, 2026. In other words, while the law was enacted in 2025, it couldn’t be implemented because it bundled an (unfunded) pet-friendly shelter requirement. Now, as of October 1, the landlord provisions (which did not drive the law’s identified fiscal cost) are no longer held back by the still-unfunded shelter requirement. Pet Deposits and Pet Rent A housing provider can charge a refundable Pet Deposit of up to 15% of monthly rent, in addition to the ordinary security deposit for the unit. Providers can use that Pet Deposit only for damage directly caused by the pet that exceeds ordinary wear and tear. Providers may also charge monthly Pet Rent, capped at: 1% of the first full month’s rent for each dog 1% of the first full month’s rent for all non-dog common household pets combined Other than the Pet Deposit and monthly Pet Rent, pet-related charges should be treated as presumptively prohibited. That includes pet screening, registration, administrative, DNA, inspection, and similar fees unrelated to actual damage caused by the pet (even if payments are routed through a third-party vendor). An End to Breed Restrictions Housing providers can no longer impose restrictions or special charges based on a pet’s breed, size, or weight. They can still maintain reasonable rules addressing safety, sanitation, maintenance, and the number of pets allowed in a unit. The law also does not require every property to permit pets. Landlords can continue to operate pet-free properties or require written approval before allowing a pet. Assistance Animals Are Not Pets The new D.C. law regulates common household pets, but service and assistance animals are separate. A request for a reasonable accommodation involving an animal is not a request for permission to keep a pet, and leasing and property-management staff should be trained accordingly. An animal required as a reasonable accommodation is not subject to ordinary pet-approval rules, Pet Deposits, or Pet Rent. Pet forms and fee documents should also not be presented to applicants requesting an accommodation. Federal guidance in this area continues to develop, though. The U.S. Department of Housing and Urban Development changed its enforcement position concerning emotional support animals in May 2026. That guidance does not supply a single answer for every property or request, and the inquiry remains highly individualized. Accommodation requests should remain separate from ordinary pet policies and must be evaluated under applicable law. Questions the Law Does Not Answer The Pet Deposit cap refers to “monthly rent,” while the Pet Rent cap refers to the “first full month’s rent charged” to the tenant. The law does not define either term for this purpose. That matters because D.C. law defines rent broadly enough to include more than the amount labeled “base rent” in a lease. Landlord-collected utility charges and other mandatory payments could affect the calculation. The answer could also differ when a lease begins with a prorated or discounted month, a pet is approved, removed, replaced, or added mid-lease, or the lease renews at a higher rent. The statute also calls the monthly pet charge additional rent. For rent-controlled units, that creates another issue. The 1% limit may establish the maximum Pet Rent permitted under the new law without independently authorizing an increase outside D.C.’s ordinary rent-control process. The law provides little transition guidance, either. It does not explain how owners should handle Pet Deposits already above the new cap or pet-related charges that continue under older leases. Those questions depend on the property, the lease, and the timing and nature of the charge. Unauthorized Pets and Reasonable Rules The new law does not automatically or retroactively authorize all pets. Keeping a pet in violation of a no-pets or prior-approval policy can still constitute a breach of the lease and grounds for a possession action. Landlords can continue to enforce their leases and recover documented damage caused by an animal. Landlords are also still able to respond to an individual animal’s conduct. Documented aggression, repeated nuisance behavior, sanitation problems, and property damage can support an individualized decision to limit or prohibit a particular problem pet. What owners should not do is replace a prohibited breed restriction with another rule that produces the same result. An onerous insurance requirement imposed only on particular breeds, for example, may be an indirect breed restriction rather than a neutral safety policy. Answers Lie in Your Leases and Ledgers Housing providers should review more than their leases and addenda for compliance. The law can affect fee schedules, billing systems, deposit procedures, relationships with third-party platforms, staff training, and property-level policies. October 1 resolves when the landlord provisions become operative. It does not resolve every question about how they apply. Those questions require attention across your D.C. rental portfolio.

September 28, 2026

Commercial Litigation

Dictum Meum Pactum: Your Word is Your Bond, Unless More is Required

You’ve seen it in overwrought period-movies, where some character — a knight or dashing hero — proclaims, “My word is my bond!” as he looks stoically and deeply into the camera. The audience is meant to believe him; sometimes we discover he was never worthy of our trust. Hollywood aside, what does the law have to say about promises? The law, wise as she is, can demand more of her heroes than their own steely gaze. Enter “surety bonds.”  What is a Bond?  It’s a promise. In a court context, a bond is simply a promise. It is made by someone who is, in some way, interacting with our court system. When a loved one dies, or declines in mental capacity, a probate or guardianship/conservatorship can be established to formalize your role in managing the estate or the incapacitated person’s affairs. Because the law has formally passed the baton of leadership of another man’s earthly estate to you, it will also ask forward-looking accountability from you. These types of circumstances can be lumped together as “fiduciary matters,” and that term is tied directly to the oath you take and the bond you “post.”  Whether it is a promise-bond (no surety) or a policy-insured-promise (a bond with surety) will depend on the tasks ahead of you and the circumstances of the case. Many people are surprised to learn about bonding requirements when they begin probating a loved one’s estate; many people think bondsmen are reserved for criminal cases. True, in the criminal context, courts may impose “personal recognizance bonds” which are promises that a defendant (who the judge determines is not any real threat to the community, or any real ‘flight risk’) will come back to court, at a later date, to have the case adjudicated fully; a “bond hearing” tests those two legitimate concerns. In the appeals-context (and depending on your particular state) an “appeal bond” may be nominal, or it may require the full payment of the money-judgment, and a ‘suspending bond’ (sometimes called a supersedeas bond) can work to protect the judgment amount secured in the lower court, while also insulating the appellant as he pursues his right to corrective action from the higher court. These are all, regardless of species, “promises,” so the pithy definition of a bond as a promise, holds. Your Word Alone: Bonds without Surety If you are appointed as guardian of an incapacitated person, your state may blend-in authority over assets, as well as decision-making power over the medical care of the precious person. In Virginia, the law distinguishes guardianship of the person (decisions about the ward’s corporeal care) and conservatorship of the estate (the assets/finances). In some cases, if a guardianship is only over “the person” and no assets are in play, a “promise only” bond may do the job, and no insurance policy is required to back up that promise. In those cases, you must nonetheless take an oath to faithfully perform all your duties to the ward as part of the court’s “qualification” process, however you won’t need to apply with a bonding company to purchase the insurance. Surety Bonds: Ensuring Performance by The Chosen One, for The Loved One If your role, as with executors or conservators, involves overseeing assets (e.g., things of value like bank accounts, real property, cars, stocks, jewelry, etc.) some states will require an insurance policy to vouch for your promise. This puts the “sure” in assuring you do your work properly. Surety, insurance, assurance, all echo what the state seeks here — it seeks a little more confidence from you than just your word. This rigor can be required based on 1) your relationship to the decedent, 2) your status as an out-of-state resident, or 3) the terms of the will itself, or the court’s order appointing you. Many people are confounded by the bonding requirement when they are named as executor. Understandable confusion. Why would you need a bond if you are helping close out the affairs of a loved one?  Sometimes, if the will does not explicitly direct that the testator/decedent “waives the bond,” the executor may have to apply for this special insurance policy, issued by a bonding company, to back up your promise to properly report to the court and distribute the estate to the decedent’s chosen beneficiaries (grandkids, charities, long-time friends, or great loves). You may also be called upon to secure a bond if you discover that you are tasked by a court to serve as the conservator of a loved one who has diminished to the point of complete inability to care for themselves or their finances. The bond amount is approximated to the best-guess value of the ward’s estate. Importantly, at your initial qualification in this role, that estimate may be a good-faith “guess;” but as time passes and you begin to receive information from the ward’s banks, the court, with your help and input, will reassess the estate’s value, and increase the bond, if the dollars escalate well-above the initial estimates. Don’t worry about being wrong at the outset with your ‘best guess;’ the system will right-size protection for the ward/estate as better information is discovered. As an inventory is reviewed and confirmed, revising the initial estimate is common and easy, precisely because the law knows many families are serving their deceased kinsman, with very little visibility into his assets. Very often, you will only become aware of best information after you are formally qualified by the court, and you have authority to be given sensitive financial data. We Swear, Because We Care: Oath as Accountability The need for a surety bond could seem a little penal to the “Chosen One,” stepping up to do the thankless work of overseeing an elderly ward, administering an estate, or taking over the books of an elderly family member. But no. Think of it as a “further assurance” for a person who has necessarily lost the capacity to watch out for their own life’s bounty. When you’re appointed guardian/conservator for a precious person, the Commonwealth has a stake in ensuring you faithfully serve your loved one. Similarly, when you are named as an executor, you will be asked a few questions prior to taking your oath. Have you ever been convicted of a big crime? Have you ever filed for bankruptcy? Ever been a lawyer?  This litany of questions aims to protect the ward/estate from a reckless, hapless, or witless custodian of funds belonging to another man. Qualification will require you to swear that these answers are true and that you will faithfully perform your duties. Because society asks that a promise-made, be a promise-kept. It is an honor to have been selected to serve an estate; it is an honor to be chosen by the court to protect a person in need of a proxy. Done right, taking an oath should weigh heavily on us. The task is as weighty as the honor. Honorable people can remain so, with external guardrails like surety bonds to help them perform all their duties. Your loved one thanks you. Society thanks you. Because when you raise your right hand… there’s something heroic in it.

September 25, 2026

Family Law

The Massey Prenup: In Search of the Unbreakable Agreement

There are matrimonial lawyers, and then there is Miles Massey. For those who have forgotten the Coen brothers' 2003 film “Intolerable Cruelty,” George Clooney's Massey is an enormously successful Beverly Hills divorce lawyer: impeccably dressed, insufferably confident, obsessed with his teeth, and the author of what may be the Holy Grail of matrimonial practice — the Massey Prenup. “The Massey prenup has never been penetrated.” Miles Massey, Intolerable Cruelty1 The Massey Prenup is legendary. Its purpose is simple: if the marriage ends, nobody profits from having married the other. And its claim to fame is even simpler. It has never been successfully challenged. Every matrimonial lawyer should be so lucky. After 40 years of watching people fall in love, fall out of love, and occasionally develop remarkably different memories of what happened in between, however Miles Massey may have gotten one thing wrong. The secret to the unbreakable prenup is not the prenup. It is everything that happens before anybody signs it. You Are Allowed to Make a Bad Deal Let’s start there. A prenuptial agreement does not have to be equal to be enforceable. It does not have to approximate what equitable distribution would have produced. And a matrimonial judge does not get to rewrite an agreement because, 15 years after the wedding, one spouse realizes that signing it was a spectacularly bad financial decision. New York takes agreements seriously. The Court of Appeals told us that long ago in Christian v. Christian, 42 N.Y.2d 63 (1977), and our appellate courts have repeated the principle ever since. New York recognizes a strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements, and duly executed prenuptial agreements are accorded the same presumption of legality as other contracts. See Bloomfield v. Bloomfield, 97 N.Y.2d 188 (2001); Gottlieb v. Gottlieb, 138 A.D.3d 30 (1st Dep't 2016). Of course, that does not mean anything goes. Fraud, duress, overreaching and unconscionability remain grounds upon which agreements can be attacked. But a considerable distance exists between an agreement someone considers unfair and one a court will refuse to enforce. Or, without the legalese: You are allowed to make a bad deal. That is where our search for the Massey Prenup begins. $103 Million Versus $610,817 If Miles Massey practiced in New York, Gottlieb would probably be framed on his office wall. When the parties signed their prenuptial agreement, the husband disclosed a net worth of$103,894,476. The wife's was $610,817. That is quite a disparity. The agreement narrowly defined marital property and broadly protected separate property, including business interests, income earned during the marriage, and appreciation. The wife had experienced matrimonial counsel. Negotiations occurred over months. Changes requested on her behalf were incorporated. Her lawyer advised her not to sign it. She signed it anyway. When the marriage ended, she challenged the agreement. The First Department enforced it. The most interesting part of Gottlieb is not the $103 million. It is the lawyer saying, essentially, do not sign this, and the client saying, essentially, I am signing it anyway. That is something every matrimonial lawyer understands. We advise. Clients decide. Sometimes they listen to us. Sometimes they do not. Sometimes, years later, they very much wish they had. But regret is not fraud. Regret is not duress. And regret does not transform a knowingly accepted bargain into an unconscionable one. That tells us something important about the Massey Prenup. Ironclad does not mean equal. It means defensible. Draft the Cross-Examination First Here is something I have learned from litigating matrimonial agreements: if you want to draft a good prenup, stop thinking like the lawyer drafting it. Think like the lawyer trying to destroy it. Before I worry about another representation, warranty, or defined term, I want to be in a courtroom 15 years from now. The marriage is over. Everybody is angry. The agreement is suddenly worth millions of dollars. And, miraculously, everyone's memory of what happened before the wedding has improved dramatically. One spouse takes the witness stand: When did you first see the agreement? How close was it to the wedding? Did you have your own lawyer? Who found that lawyer? Did you understand what you were giving up? Did you know what your prospective spouse owned? Were financial documents provided? Were you permitted to negotiate? Were you told there would be no wedding unless you signed? Did somebody promise you something that is not in the agreement? Were you afraid not to sign? There is your drafting checklist. Draft the future cross-examination first. Then draft the prenup. Because the real question is not simply whether the agreement is enforceable today, it is how the story of its execution will sound to a judge 15 years from now. The Agreement Does Not Begin on Page One Cioffi-Petrakis v. Petrakis, 103 A.D.3d 766 (2d Dep't 2013), is the cautionary tale. There, the problem was not simply that one spouse had negotiated a very favorable agreement. The trial court credited the wife's account of fraudulent inducement, and the Second Department affirmed the determination setting the agreement aside. That should get every drafter's attention. The document may say there were no promises. Someone may later swear there were. The document may say execution was voluntary. Someone may later describe pressure. The document may acknowledge knowledge of the other's finances. Someone may later claim concealment. Recitals are useful. Facts are better. Which is why, if I were trying to construct the real Massey Prenup, I would spend at least as much time protecting the process as protecting the assets. The agreement does not begin on page one. It begins the first time somebody says, “We need a prenup.” I Want the Other Side to Have a Good Lawyer Yes, really. When representing the monied prospective spouse, some clients seem puzzled by this. Why would I want the other side to have an excellent matrimonial lawyer? Because I want the agreement to survive. I do not want my client's future spouse represented by someone's cousin who does real estate closings, or by an attorney parachuting in three days before the wedding who has never negotiated a matrimonial agreement. I want a real matrimonial lawyer. Strong v. Dubin, 48 A.D.3d 232 (1st Dep't 2008), helps explain why. The wife had counsel. Her attorney advised her that the agreement appeared one-sided. She nevertheless chose to sign it. The agreement survived the challenge. Independent counsel protects the prospective spouse. But let us not kid ourselves. It also protects the agreement. Someone can later say: I explained it. We discussed it. I told my client what she was relinquishing. I gave my advice. And she chose to sign. The goal is not simply consent. The goal is informed consent you can prove. And please disclose the money. Every matrimonial lawyer has heard this conversation: “She knows I have money.” Fine. “He knows about the business.” Wonderful. “We've lived together for eight years. She knows everything.” Terrific. Put it in writing. New York does not impose a mechanical rule that every asset must be valued to the penny or the agreement disappears. But that is beside the point. Why voluntarily create something for the future lawyer to litigate? If your client owns a business, disclose it. If there is real estate, disclose it. If there are substantial investment accounts, disclose them. If there are significant liabilities, disclose those too. Use schedules. Use reasonable values. Preserve the documents. Fifteen years from now, I do not want to depose somebody about what was supposedly discussed over dinner in the Hamptons. Could I win that issue? Maybe. But why would I want the issue? The best Massey Prenup is not the agreement that can survive the most attacks. It is the agreement that eliminates the attacks before anyone gets the chance to make them. If You See the Florist, You Have Waited Too Long Nothing improves a duress argument quite like an impending wedding. The venue has been paid. Two hundred guests have responded. Grandma has flown in from Florida. The dress is upstairs. The flowers have arrived. And somebody produces a 62-page prenuptial agreement. Sign here. You can already hear the opening statement. Does that necessarily constitute legal duress? No. But why are we giving opposing counsel the facts? Start early. Let the lawyers negotiate. Exchange drafts. Let the parties think. Make changes. Document them. Then execute the agreement without drama. A prenup signing should be boring. Painfully boring. If you see the florist in the hallway, you have waited too long. Sometimes the Lawyer Breaks the Prenup And then came Gaudette v. Gaudette, 249 A.D.3d 1369 (3d Dep't 2026). Every lawyer who drafts matrimonial agreements should read it. The parties had been married for more than four decades. Their prenuptial agreement contained ambiguous provisions. The case had already reached the Third Department, and the matter was remitted for an evidentiary hearing to determine what the parties actually intended. The hearing did not solve the problem. The ambiguity remained. Because the provisions were intertwined and the agreement contained no severability clause, the agreement ultimately failed. Think about that. More than 40 years of marriage. A prenuptial agreement. An evidentiary hearing. Two trips through the appellate process. And the prenup failed. Not because someone hid $50 million. Not because the wedding was the next morning. Not because somebody was coerced into signing. Because the drafting failed. We lawyers sometimes confuse complexity with sophistication. They are not the same thing. A 90-page agreement is not necessarily better than a 35-page agreement. A paragraph containing seven defined terms, four exceptions, three cross-references, and a semicolon nobody understands is not necessarily protecting anyone. If a judge cannot determine what we meant, we have not drafted an ironclad agreement. We have drafted an expensive lawsuit. Do not Lose $50 Million Over a Notary There is, of course, another way to destroy a magnificent New York prenup. Botch the acknowledgment. Domestic Relations Law § 236(B)(3) requires marital agreements to be in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. This is not decorative statutory language. Matisoff v. Dobi, 90 N.Y.2d 127 (1997), Galetta v. Galetta, 21 N.Y.3d 186 (2013), and Anderson v. Anderson, 37 N.Y.3d 444 (2021), should have cured the matrimonial bar of any tendency to treat acknowledgment as an afterthought. There are interesting legal distinctions among a defective certificate, the underlying act of acknowledgment, and what may or may not subsequently be cured. Save that discussion for the motion papers. My drafting advice is shorter: get it right the first time. There are few things more painful than negotiating an exquisitely drafted agreement protecting tens of millions of dollars and later litigating what somebody did — or did not do — in front of a notary. No wriggle room should include the signature page. There Is No Secret Clause I understand why Miles Massey's fictional achievement is so appealing. Lawyers love the idea that somewhere there is a clause — a magnificent combination of defined terms, waivers, and legal prose — that will make an agreement impervious to attack. After 40 years, I have not found it. What I have found is considerably less glamorous. Start early. Get good lawyers on both sides. Disclose the finances. Negotiate honestly. Document the negotiations. Do not make side promises. Do not play games. Do not squeeze simply because you can. Draft clearly. Then put the agreement down for a day and read it again as though someone had just retained you to destroy it. And, for heaven's sake, execute it correctly. George Clooney could probably not make much of a movie out of that. So, Can We Draft the Massey Prenup? I think we can come awfully close. Not because we can prevent somebody from challenging it. We cannot. Anyone sufficiently angry, sufficiently wealthy, or sufficiently determined can litigate almost anything. And no responsible matrimonial lawyer should promise that an agreement is “unbreakable.” But we can accomplish something better. We can draft an agreement that another experienced matrimonial lawyer pulls from the file 15 years later, reads twice, examines the financial disclosure, reconstructs the negotiations, speaks to the client, considers the available causes of action, and finally says the five words your former client paid you to make inevitable: I do not see a case. That is the real Massey Prenup. Not an agreement nobody can challenge. An agreement nobody particularly wants to challenge. And after all the sophisticated drafting, negotiations, disclosure, independent counsel, and statutory formalities, the secret of the supposedly unbreakable prenuptial agreement turns out to be remarkably simple. The Massey Prenup is not a document. It is a process. Get the process right, and perhaps even Miles Massey would have to concede: no wriggle room. 1Intolerable Cruelty (2003), Producers Ethan Coen and Brian Grazer

September 25, 2026

Estates and Trusts

“I Do” and Then What? Trust and Estate Planning for Newlyweds

Wedding season is in full swing. Between venues, guest lists, and seating charts, it is easy to view marriage primarily as a celebration to plan. But marriage is also a legal and financial partnership, and the same care couples put into their wedding day is worth putting into the practical matters that follow it. Just as thoughtful wedding planning reduces stress and surprises, so does thoughtful planning for your shared finances and legal affairs. Many newly married couples assume that trust and estate planning is only relevant to older or wealthier individuals. In reality, it is one of the more important steps a couple can take early in a marriage, and it requires far less time and expense than the wedding itself did. Step One: Update Your Beneficiaries One of the first practical steps after marriage is reviewing your beneficiary designations. If these have not been updated since before your marriage, a parent or sibling may still be listed, and beneficiary designations generally supersede a last will and testament, regardless of what your estate plan says. Accounts without a named beneficiary become subject to probate. Review and update: Checking and savings accounts Life insurance policies Investment accounts (stocks, bonds, mutual funds) Retirement accounts (401(k), IRA, Roth IRA, 403(b)) Pension and military benefits Step Two: Decide How You’re Combining Finances and Property Some couples consolidate their finances immediately; others keep certain assets separate for years. There is no single correct approach, but the decision should be a deliberate one, made together rather than by default. Open a joint account for shared expenses, apply for a joint credit card to start building credit together, update health insurance, and re-title the house, car, or other joint property so ownership actually matches reality. A certified financial planner and an estate planning attorney, working together, can align your financial goals with a long-term strategy and ensure you use the right tools to protect and grow your wealth as a couple. Step Three: Establish Advance Directives A common misconception is that marriage automatically grants a spouse legal authority to act on the other’s behalf. It does not. Without the proper documents in place, a spouse may be unable to manage finances or make medical decisions in the event of illness or incapacity when that authority is needed most. A Power of Attorney allows you to appoint your spouse, or another trusted individual, as your agent to handle matters such as paying bills, managing investments, or selling property on your behalf. In New York, a valid POA must conform to the statutory format set out in General Obligations Law § 5-1501 et seq., and must be signed, notarized, and witnessed by two disinterested adults. Without a properly executed POA, disputes among family members can arise during emergencies. A Health Care Proxy serves a similar function for medical decision-making, allowing your spouse to act on your behalf and carry out your wishes, including regarding life-sustaining treatment and end-of-life care, if you are unable to communicate them yourself. Without one, disagreements among family members can arise at critical moments. Step Four: Establish a Will and Revocable Trust This step is often delayed, on the assumption that estate planning is unnecessary until later in life or until greater wealth has been accumulated. In fact, the value of a will and revocable trust lies not in the size of an estate, but in ensuring that assets are distributed according to your wishes rather than by default rules of law. Planning early allows a couple to: Avoid probate to make the administration of your estate more efficient, private, and less burdensome for your spouse and family Name guardians for minor children, so if something happens to both parents, the decision is guided by your wishes rather than left to uncertainty or court involvement Provide structure for how and when children or other beneficiaries receive assets, rather than having funds pass outright before they are ready to manage them Protect your spouse by making clear what should happen to individually owned assets, jointly acquired property, and family or inherited assets Put a basic plan in place now, while life is relatively straightforward, and update it over time as your family, finances, tax considerations, and priorities change Reduce the likelihood of conflict among family members by documenting your intentions clearly before there is an emergency or a difficult decision to make The Bottom Line The same diligence that goes into planning a wedding is worth applying to the legal and financial foundation of a marriage. A brief conversation with an estate planning attorney early on can prevent significant confusion, expense, and conflict for your family down the road.

September 25, 2026

Commercial Litigation

When the Mammoth Gets Out: Is a Genetically Engineered Animal a Product, or Is It Livestock?

It is a little before dawn when the fence gives way. The animal that steps through it is not supposed to exist. It stands nearly 11 feet at the shoulder, wrapped in a coat of coarse, rust-colored hair, its breath rising in the cold. It weighs five tons. A quarter mile off, a rancher hears a low rumble he feels in the floorboards before he hears it in the air. By the time he reaches the window, the thing is already in his neighbor’s wheat field, then his neighbor’s fence, then his neighbor’s parked truck. This is less far-fetched than it used to be. Colossal Biosciences, a company based in Dallas, has spent several years and a great deal of money on what it calls de-extinction, using gene editing to bring back species the earth has not seen in thousands of years. i The woolly mammoth is its most famous target. Whether or not a mammoth ever walks out of a lab, the company has already done something quieter that ought to interest lawyers. It has made us ask what body of law would govern the animal if one ever did. Because when that mammoth flattens the fence and crosses the wheat field, the first hard question is not biological. It is legal. Who pays for the wheat, the fence, and the truck? To answer that, a court will have to decide something no court has decided before. Is a woolly mammoth livestock, or is it a product? The Law Already Knows What to Do with Animals The law has been sorting out liability for wayward animals for a very long time, longer than it has handled almost anything else. Cattle have wandered into neighbor’s crops since there were neighbors and crops, and the common law worked out rules for the aftermath.  The modern American version lives in the Restatement (Third) of Torts, which sorts the animal kingdom into a few practical categories. An owner of livestock that strays onto a neighbor’s land and does damage is generally strictly liable for the intrusion. There is no need to prove the rancher was careless, only that the cattle got out and the corn got eaten. An owner of a wild animal, meaning a species that has not been domesticated and tends to hurt people unless restrained, is strictly liable for the harm it causes. Everyone understands that keeping a tiger is a different proposition from keeping a cow. And an owner of an ordinary domestic animal becomes strictly liable once he knows, or has reason to know, that his particular animal has dangerous tendencies abnormal for its kind. That is the rule behind the old idea that every dog gets one free bite.ii Underneath all of this runs a deeper legal principle. In 1868, the House of Lords decided Rylands v. Fletcher, a case that had nothing to do with animals. A mill owner built a reservoir on his land. It burst through some abandoned mine shafts and flooded his neighbor’s coal mine. The court held him liable even though he had not been negligent, and it announced a rule that has echoed through the common law ever since. A person who brings onto his land something likely to do mischief if it escapes keeps it there at his peril, and answers for the damage if it gets loose.iii The Rylands principle appears to fit this scenario. A wooly mammoth in a wheat field is surely something extraordinary and something likely to do mischief if it escapes.  Neither Quite Animal nor Quite Product So the law has categories, and at least one seems to fit. If the mammoth is just an exotic, dangerous beast, the wild-animal rule imposes strict liability, and the inquiry ends there. If it is closer to livestock, the trespassing-animal rule imposes strict liability for the crops and the fence. Either way the neighboring rancher recovers. Where is the difficulty?  The difficulty is that every one of these doctrines quietly assumes something that is not true of a mammoth. Each assumes the species already exists and that people have built up some working knowledge of how it behaves. Cattle stray and trample. Tigers maul. A dog that has bitten once may bite again. The categories work because generations of experience have filled them.  No one has that experience with a mammoth. No rancher has raised one. No veterinarian has treated a herd of them. No actuary has a drawer full of mammoth claims. The last person with any practical knowledge of the species died before the pyramids were built. The dangerous-propensities rule asks what is normal for the animal’s kind, and for this animal nobody alive can answer.  There is a second problem. A cow is born. A tiger is born. The mammoth was designed. Somewhere a research team chose its traits, selecting for cold tolerance, for size, for coat, editing a genome the way an engineer sets a tolerance on a drawing. The animal in the wheat field did not simply get loose. It is the output of a manufacturing process. It’s a product.  The Law Also Knows What to Do with Products Products liability exists to hold manufacturers responsible for the things they design and sell into the stream of commerce. The logic is intuitive. The company that decides how a product will be built, and profits from selling it, is the party best placed to make it safe and to pay when it is not. The doctrine asks a familiar set of questions. Was there a design defect, meaning the thing was unreasonably dangerous as intended? Was there a manufacturing defect, meaning this particular unit came out different from its design? Was there a failure to warn, meaning the maker did not tell foreseeable users and bystanders what they needed to know to stay safe?iv Now ask those same questions about the mammoth. If the animal is aggressive because a team selected for size and dominance, is that a design defect? If a genetic edit expressed differently in this individual than the company intended, and produced a beast more unpredictable than the blueprint promised, is that a manufacturing defect? If the company handed the animal to a preserve without warning that its containment needs went beyond anything in ordinary ranching, is that a failure to warn? None of these questions is absurd. Every one of them sounds like a products case.  This is the collision at the heart of the problem. Livestock law assumes an animal that is born and merely owned. Products law assumes an object that is designed and sold. A genetically engineered mammoth is both at once. It is born and built, owned and manufactured, alive and, in the coldly commercial sense, a product. It does not fit either box, because it was never meant to exist in a world that has only two boxes.  Who Pays for the Damage? Line up the possible defendants. First, there is the owner, the preserve or facility that held the animal and let it escape. This is the classic livestock posture. You owned the beast, you failed to contain it, you answer for the damage. Straightforward, and probably right as far as it goes.  However, there is also the creator, the company that designed the animal, chose its traits, “manufactured” it, and put it into the stream of commerce. If the injury flowed from a characteristic the company deliberately engineered, the rancher’s lawyer will not be content to sue only the party that owned the fence. He will follow the deeper pocket back to the drawing board and argue that a company cannot design a five-ton animal, sell it, and then walk away from the predictable results of its own design choices.  Likely, courts will end up borrowing from both traditions at once. The owner answers under animal-law principles for failing to contain the creature. The creator answers under products principles for the traits it built into it. That is not a tidy rule. But tidy rules tend to be the ones the law inherits for problems it has already seen. This is a problem the law has not seen, and the first courts to face it will be improvising with borrowed tools.  The Quiet Gatekeeper: Insurance There is one more player in this drama, and it may matter more than any court. Long before a judge rules on whether a mammoth is a product or livestock, an underwriter has to decide whether it can be insured at all, and at what price. Insurers price risk from data, and here there is none. There is no loss history and no mortality table for an animal that has been extinct for millennia. Faced with that kind of uncertainty, an insurance market does one of two things. It refuses the risk, or it prices the risk so high that the underlying activity stops making economic sense.  The mammoth may never be stopped by a statute. It may simply turn out to be uninsurable.  Living Products are Coming Either Way It would be easy to file all of this under science fiction and move on. That would be a mistake. The mammoth is the most theatrical example of a category that is already arriving in quieter forms, and it is not only about giants. Colossal’s own roster runs well past the mammoth, to the Tasmanian tiger, the dodo, the moa, the South African bluebuck, and the dire wolf, whose pups the company says it has already produced.v Add the gene-edited cattle and hogs, the engineered salmon, and the disease-resistant crops already moving toward market, and the pattern is hard to miss. A growing catalogue of organisms are, unmistakably, designed. Each raises a gentler version of the question the mammoth asks so loudly. When a living thing is engineered by a company and sold into the world, is it an animal, a product, or some third thing the law has not yet named?  For centuries tort law has kept two sets of rules on two separate shelves. Animals are born, and the law of animals governs them. Products are made, and the law of products governs them. The whole structure rests on the assumption that living things and manufactured things are different kinds of things. Synthetic biology quietly dissolves that assumption. It produces organisms that are grown rather than assembled, that reproduce rather than roll off a line, and that were still designed as deliberately as any machine.  So when the mammoth finally puts its shoulder into that fence, or, more likely, when some engineered animal with a far less exciting name does something a court has to sort out, the judge will reach for the tools on hand. She will find two bodies of law built for two kinds of things and a defendant that is somehow both. The mammoth is a good way to notice the problem. It is not, in the end, what the problem is about. The problem is that biology is becoming an engineering discipline, and the liability rules were written for a world in which it was not.  i Colossal Biosciences, The De-Extinction Company, https://colossal.com (last visited Sept. 12, 2026).  ii Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 21 (Am. L. Inst. 2010) (intrusion by livestock or other animals); id. § 22 (wild animals); id. § 23 (abnormally dangerous domestic animals with known dangerous tendencies).  iii Rylands v. Fletcher (1868) LR 3 HL 330 (appeal taken from Eng.), aff’g Fletcher v. Rylands (1866) LR 1 Ex 265 (Blackburn, J.).   iv Restatement (Third) of Torts: Prods. Liab. § 2 (Am. L. Inst. 1998) (distinguishing manufacturing defects, design defects, and defects based on inadequate warnings).   v Colossal Biosciences, Our Species, https://colossal.com/species/ (last visited Sept. 12, 2026) (listing the woolly mammoth, thylacine, dodo, moa, bluebuck, and dire wolf); see also Colossal Biosciences, Dire Wolf, https://colossal.com/direwolf/ (last visited Sept. 12, 2026) (announcing the birth of dire wolf pups). 

September 23, 2026

Business

SBA’s Proposed Size Standards Overhaul Could Reshape Government Contractor M&A

On August 20, 2026, the U.S. Small Business Administration published two related proposals that could substantially change which companies qualify as small businesses for federal contracting purposes. One proposal revises the methodology SBA uses to establish size standards. The second applies that methodology across the economy and proposes new standards for 338 industry groups and industries. Comments on both proposals are due November 20, 2026. The proposals remain subject to change and would not affect contractors unless and until SBA issues a final rule. If adopted, the proposals could allow many contractors that currently exceed their applicable size standards to qualify as small, with corresponding consequences for competition and transaction planning. What Is SBA Proposing? SBA is proposing to simplify its size-standard system while substantially raising the ceiling for many companies to remain classified as small. Fewer and broader size standards SBA currently maintains size standards covering 978 six-digit North American Industry Classification System, or NAICS, industries. The proposal would replace that system with 338 standards. A shift toward employee-based standards and an increase in many revenue-based standards Where SBA has discretion, the proposed rules favor measuring small business size by number of employees instead of annual receipts (annual receipts generally means revenue). In SBA’s new proposed framework, the number of receipt-based standards would fall from 496 to 129, while 208 of the new standards would be employee-based. This change could be significant for contractors in industries that currently use a five-year average of annual receipts. For those companies, winning a large contract can contribute to eventually exceeding the applicable size standard. With an employee-based standard, increased revenue alone would no longer cause the company to lose its small-business status. The principal changes are two-fold: Measuring size by employees rather than annual receipts in many industries Increasing the thresholds for many industries that would retain receipt-based standards. For example, NAICS 541613, Marketing Consulting Services has a current size standard of $19 million that would increase to $295 million if the proposed rule is finalized as proposed, an increase of 1453%. These are proposed, not current standards, and companies should review the applicable tables carefully because treatment varies by industry. For industries moving from receipts to an employee-based standard, revenue growth would no longer be the principal driver of size status. Transaction diligence would instead need to focus on the combined workforce of the buyer, target, and their respective affiliates. Taken together, SBA estimates that the changes would cause approximately 114,541 additional businesses to qualify as small. According to SBA, 37,002 of those businesses held federal contracts during fiscal year 2025, representing more than $71 billion across approximately 105,655 contracts. What Could the Proposals Mean for Government Contractor M&A? SBA’s proposed rules could open new transaction opportunities, but they would not eliminate the fundamental SBA affiliation and recertification issues that arise when a small-business contractor changes ownership. More flexibility for small-business acquisitions Under SBA’s affiliation rules, a contractor generally must count the receipts, employees, or other measure of size of its domestic and foreign affiliates. Affiliation may arise when one business controls or has the power to control another, or when a third-party controls both. SBA considers ownership, management, contractual relationships, prior relationships, and the totality of the circumstances. Under current standards, that combined calculation can quickly make a small-business target other than small. However, higher thresholds could provide additional room for one small- business contractor to acquire another, without immediately exceeding the applicable standard. A potentially broader buyer pool for small-business sellers Small-business set-aside contracts can be difficult to value in a sale because a change in control may cause the contractor to lose its qualifying size or socioeconomic status. Current SBA regulations generally require size and applicable program-status recertification within 30 calendar days after a merger or acquisition involving the small business that results in a change in controlling interest. The recertification applies the size standard in effect at the time of recertification corresponding to the NAICS code originally assigned to the award. If the proposed standards become effective, a buyer that would be too large under today’s threshold might qualify as small under the new threshold after taking its affiliates into account. Higher thresholds may make some targets viable for buyers that would currently cause a disqualifying size recertification. Whether that benefit exists in a particular transaction will depend on transaction specifics such as the target’s assigned NAICS codes, the timing of recertification, and any separate socioeconomic-program (e.g., service-disabled veteran-owned or women-owned small business) requirements. Changes to diligence and valuation models Buyers should not simply assume that a higher threshold preserves the full value of a target’s small-business contract portfolio. Transaction diligence should model the combined company under each relevant NAICS code, identify whether the applicable standard is based on receipts or employees, and determine when post-closing recertification will be required. An acquisition that depends on future set-aside awards should therefore be evaluated under multiple scenarios. For example, the parties should consider whether SBA’s final standards could differ from those proposed and whether the transaction could close, triggering recertification, before any new standards become effective. Increased competition may affect projections Higher size standards would not benefit only a particular buyer or target. The pool of larger and more experienced firms competing for small-business set-aside work could increase. Incumbent small contractors could face competitors with more robust past performance, sophisticated proposal teams, and greater financial resources. A transaction model that assumes historical win rates will continue unchanged may be unrealistic. Buyers should assess the target’s competitive position and whether it depends on small business status or differentiated capabilities, customer relationships, key personnel, and past performance. Deal timing could become important Because current recertification rules apply the size standard in effect at the time of recertification, the timing of a final rule, closing, and change in control could affect the outcome of a transaction. Parties negotiating transactions during the rulemaking process may want to address this uncertainty through closing conditions, purchase-price assumptions, and representations concerning size calculations. Practical takeaways Contractors considering a transaction should identify their principal NAICS codes, familiarize themselves with current and proposed standards, and calculate size on a pro forma basis after including relevant affiliates. Buyers should also consider how a larger pool of eligible competitors could affect the target’s backlog, pipeline, projected win rates, and valuation. SBA’s proposals could provide meaningful room for small-business contractors to grow organically or through acquisition. Higher thresholds do not remove affiliation, recertification, socioeconomic-status, novation, or contract-specific considerations. Those issues should remain central to transaction diligence and structuring. Comments on both proposals are due November 20, 2026, and contractors that may be affected should submit comments before the deadline.

September 23, 2026

Construction

Update: Pennsylvania Overall DBE Goal & Methodology Released for Comment

Pennsylvania Department of Transportation (PennDOT) has published a notice in the Pennsylvania Bulletin of its proposed overall DBE goal and methodology for FHWA-assisted contracts for Federal Fiscal Years 2027 to 2029. This proposed methodology is open for public comment for 30 days from the date of publication, through October 19, 2026. PennDOT’s Proposed Overall Goal PennDOT proposes an overall DBE goal of 5.883% for FHWA-assisted contracting. Applied to projected annual federally assisted spending of $3.85 billion, the goal represents approximately $226.5 million in DBE participation each year, or approximately $679.5 million over the three-year period. This is PennDOT’s first goal calculated under the revised certification standards. PennDOT measured DBE availability as of September 1, 2026, counting firms that had completed certification or reevaluation under the IFR and a small number of firms with pending applications. In determining this availability, PennDOT calculates DBE availability across four submarkets: professional services, construction prime contractors, construction subcontractors, and suppliers. For each of the four submarkets, PennDOT divided the number of ready, willing, and able (RWA) DBEs by the total number of RWA firms: Submarket RWA Firms DBE Firms (including pending) Availability Professional Services 434 79 18.203% Prime Contractors 515 6 1.165% Subcontractors 1,730 127 7.341% Suppliers 2,207 32 1.495% PennDOT then weighed each submarket ratio by its projected share of spending. Although professional services account for approximately 22% of projected spending, it contributes more than two-thirds of the overall goal (4.019%). By contrast, only 6 of 515 prequalified prime contractors are counted as DBEs, and the combined baseline for the three construction submarkets is 2.392%. No Step-Two Adjustment PennDOT determined that it would make no adjustments to the Step-One Baseline Availability based on the RWA DBEs across the four submarkets. In its determination, PennDOT calculated past participation using only firms in the current DBE population and found a five-year median of 5.792%, which is considered too close to the 5.883% baseline to warrant an adjustment. PennDOT also declined to rely on its 2024 disparity study because the study predates the IFR and measures the prior DBE population. PennDOT has reengaged BBC Research to update that analysis and will consider the results in its annual Interim Market Updates. Next Steps for Pennsylvania Firms Review and Comment: The proposed methodology is available at equalopportunity.penndot.pa.gov and at PennDOT’s principal office. Written comments are due by October 19, 2026, and should be directed to Keyla J. Evans, Bureau of Workforce and Business Opportunity, Disadvantaged Business Enterprise Program Administrator, at penndotdbegoal@pa.gov Prepare for Return of DBE Goals: Prime contractors should again expect to document good faith efforts and will again be required to complete DBE program training at the pre-bid and pre-construction phases. Confirm Certification Status: Firms that were not recertified, or that did not complete reevaluation, should evaluate whether to apply under the revised standards. Consider SBE Program: PennDOT’s Small Business Enterprise program is open to firms that meet SBA size standards, and PA UCP certified DBEs may opt in.

September 23, 2026

Real Estate

Commercial Real Estate Closings in Delaware: What Out-of-State Counsel and Title Companies Need to Know

Commercial real estate transactions frequently cross state lines. A lender may be headquartered in New York, the borrower may be a Delaware limited liability company, the property may be part of a national portfolio, and the title company may be coordinating the transaction from an office hundreds of miles away. When one of the properties is located in Delaware, however, there is an important difference that out-of-state counsel and title companies need to understand early in the transaction: closings involving Delaware real property require the involvement of a Delaware-licensed attorney. For attorneys and title professionals accustomed to closing transactions in other jurisdictions, Delaware's requirements can initially seem unusual. In many states, a national title company can coordinate virtually the entire closing process, including title, escrow, execution, recording, and disbursement. Delaware takes a different approach. Understanding that difference at the beginning of a transaction can make the Delaware portion of a commercial or multi-state real estate closing considerably easier. The Mid-Atlantic Decision and the Scope of Delaware Counsel's Role  The Delaware Supreme Court has determined that significant components of a real estate settlement constitute the practice of law. The foundation for Delaware's approach is In the Matter of Mid-Atlantic Settlement Services, Inc., 755 A.2d 389 (Del. 2000), commonly referred to as Mid-Atlantic. Delaware's rules regarding attorney involvement in real estate transactions developed further following that decision. Under the Mid-Atlantic line of authority, a Delaware-licensed attorney is required to conduct the closing of a sale of Delaware real property. Attorney involvement is likewise required for a refinancing secured by Delaware real property. But the Delaware attorney's responsibility extends beyond simply appearing at the closing table. Delaware counsel must be involved, directly or in a supervisory capacity, in all legal aspects of the transaction affecting the transfer of title or the use of Delaware real estate as security for an obligation. Delaware Counsel Must Be Meaningfully Involved in the Closing Process  The Delaware attorney's responsibilities include evaluating the legal rights and obligations of the parties, examining title and addressing and/or removing title exceptions, reviewing documents affecting Delaware real property, conducting the settlement, and supervising the disbursement of settlement funds. In transactions involving properties in multiple jurisdictions, local counsel is sometimes engaged primarily to attend a signing, witness documents, or handle a discrete local requirement. That is not the Delaware model. The Mid-Atlantic line of authority treats the components of a Delaware real estate settlement as an integrated process rather than a collection of isolated tasks that can simply be divided among attorneys and nonlawyers. A Delaware attorney cannot simply attend the signing while a title company independently handles the substantive settlement functions. Delaware counsel must have meaningful involvement in the closing process, including title examination, document review, and supervision of the disbursement of settlement funds. The Interplay Between Delaware Counsel and Title Insurance Title insurance is also closely integrated into the Delaware settlement process. Among the settlement functions considered in Mid-Atlantic were advising purchasers concerning title insurance and issuing title insurance policies. In practice, Delaware closing counsel commonly works as an authorized issuing agent or representative of the title insurer. Delaware counsel examines or supervises the examination of title, addresses title exceptions, coordinates underwriting matters with the title company or underwriter, conducts the Delaware settlement, supervises the disbursement of settlement funds, and coordinates issuance of the title insurance policy. The title examination itself is also a substantive part of the Delaware attorney's role. In a commercial transaction, the title commitment may contain matters ranging from mortgages and judgments to easements, declarations, restrictions, reciprocal easement agreements, and other recorded documents affecting the property. Delaware counsel therefore does more than simply confirm that a title commitment has been obtained. Counsel works with the title company and transaction counsel to determine which exceptions must be satisfied, which will remain as permitted exceptions, and whether additional documentation, affirmative coverage, or underwriting approval is required before closing. For an out-of-state title company, none of this means that the title company is excluded from the transaction. National title companies regularly participate in Delaware commercial real estate transactions. It does mean that the respective roles of the title company and Delaware counsel need to be coordinated properly. A national title company may already be handling title for an entire portfolio transaction. It may have coordinated underwriting, negotiated endorsements with lender's counsel, and assembled the closing requirements for properties in several states. The presence of a Delaware property does not necessarily require abandoning that structure. Instead, Delaware counsel can work with the national title company to handle the Delaware-specific portion of the transaction. Depending upon the transaction, that coordination may include: Reviewing the Delaware title search and title commitment Examining title and addressing Delaware-specific title exceptions Coordinating with the national title company and its underwriter Obtaining underwriting approval for requested affirmative coverage and endorsements Reviewing the deed, mortgage, and other instruments affecting Delaware real property Coordinating Delaware recording requirements Confirming satisfaction of liens and other matters affecting title Reviewing transfer-tax requirements and applicable exemptions Preparing and coordinating required affidavits and other Delaware closing documents Supervising execution of the Delaware closing documents Receiving and supervising disbursement of settlement funds as required by Delaware law Coordinating recording with the appropriate county Recorder of Deeds Issuing and signing the owner's and/or lender's title insurance policies and applicable endorsements as the title insurer's authorized agent or representative The objective should not be to duplicate work already being performed by national transaction counsel or the title company. The objective is to integrate Delaware counsel into the existing closing team so that the national title company's underwriting and coordination capabilities work together with the responsibilities Delaware law assigns to Delaware counsel. Delaware's Extensive Transfer Tax and Recording Documentation Requirements Another difference that often surprises out-of-state counsel and title companies is the amount of ancillary documentation required to complete and record a Delaware deed for the real estate transaction. Delaware generally requires more transfer-tax affidavits, tax forms, and ancillary closing and recording documents than many other jurisdictions. The exact documents vary depending upon the type of transaction, the parties, the county and municipality in which the property is located, and whether a transfer-tax exemption or other special treatment is being claimed. For a conveyance, the closing package may include not only the deed but also state realty transfer tax documentation, an affidavit of residence and gain, applicable nonresident seller tax documentation, county transfer-tax affidavits, municipal transfer-tax forms, exemption affidavits, and other documents required by the applicable Recorder of Deeds or taxing authority. Delaware law generally requires a deed or other instrument conveying title to be accompanied by the required affidavit of residence and gain before the Recorder will accept it for recording, unless the transaction falls within an applicable exemption. Delaware does not require the full purchase price on the deed itself, but requires the true, full, and complete value of the transaction to appear in the accompanying affidavits. Additional requirements can exist at the county and municipal level. For example, New Castle County requires a county Realty Tax Affidavit for properties located within the county. Additional exemption documentation may be required when an exemption is claimed, and properties located within a municipality may be subject to additional municipal requirements. Financing Transactions Require Their Own Delaware-Specific Review Financing transactions also have Delaware-specific documentation and recording requirements that should be identified before closing. As a result, a deed or mortgage that is substantively acceptable to lead transaction counsel may still not constitute a complete Delaware recording package. This is one reason involving Delaware counsel early is particularly important. Determining the required ancillary documents after the parties have already executed the principal transaction documents can delay recording and, in some cases, funding. Recording Real Estate Documents in Delaware Delaware real estate documents are recorded in the county in which the property is located: New Castle, Kent, or Sussex County. Recording requirements vary among Delaware’s three counties and, where applicable, its municipalities. Although recording a deed or mortgage may appear routine, documents affecting Delaware real estate should be reviewed for compliance with applicable Delaware, county, and municipal requirements before the closing date. Depending upon the transaction, the closing team may need to address matters such as: Proper execution and acknowledgment Property descriptions Placement of required information on the instrument Parcel identification information State realty transfer tax documentation County and municipal transfer-tax affidavits Transfer-tax exemption affidavits, when applicable Seller residence and gain documentation Nonresident seller tax documentation Mortgage information Recording fees Satisfaction or release of existing liens County-specific recording requirements The parcel identification requirement itself illustrates the importance of local review. Delaware law generally prohibits a Recorder of Deeds from accepting an instrument affecting real property unless the applicable county tax-assessment parcel identification number appears conspicuously on the instrument. County recording requirements may impose additional formatting or placement requirements. Resolving these matters before documents are executed helps avoid rejected recordings and post-closing problems. Delaware's Extensive Transfer Tax and Recording Documentation Requirements  Transfer tax is another issue that should be considered early rather than discovered while preparing the closing statement. Delaware imposes a state realty transfer tax on taxable transfers of real property. Local transfer taxes may also apply depending upon the county or municipality in which the property is located. In a substantial commercial transaction, transfer taxes can represent a significant closing cost. The parties should determine the applicable tax allocation between the parties and the availability of any exemption well before closing. This becomes especially important in transactions that are more complicated than a straightforward conveyance, including entity transactions, portfolio transactions, and transactions involving affiliated entities. A transaction that does not look like a traditional deed transfer should not automatically be assumed to be exempt from Delaware realty transfer tax. The transfer-tax analysis is also connected to the documentation requirements discussed above. If the parties are claiming an exemption or taking a particular position regarding the taxable value of a transaction, the appropriate affidavits and supporting documents need to be prepared consistently with that position. Commercial real estate transactions frequently involve limited liability companies, limited partnerships, and other special-purpose entities. Delaware counsel's real estate role should therefore be distinguished from, but coordinated with, any Delaware entity law or opinion work required by the transaction. For example, assume a Delaware LLC owns a commercial property in Delaware and is refinancing the property through a national lender. The transaction may require analysis of two different categories of Delaware law. First, Delaware real estate counsel must address the Delaware property, mortgage, title, settlement, and recording issues. Second, the lender may require a Delaware legal opinion concerning the borrower's existence, good standing, power, authority, and due authorization to enter into the loan transaction. Those areas overlap, but they are not identical. Early-Stage Planning Checklist for Out-of-State Counsel and Title Companies  For out-of-state counsel or title companies handling a commercial transaction involving Delaware real estate, the following questions should be addressed early: Is Delaware real property being purchased, sold, or financed? If so, determine the required role of Delaware counsel at the beginning of the transaction. Who is handling title? Identify the title insurer, national title company, local title resources, and Delaware counsel, and establish how responsibilities will be divided. Has Delaware counsel received the title commitment and underlying documents? Do not wait until immediately before closing to begin title review. Who is preparing and reviewing the Delaware real estate documents? Determine responsibility for the deed, mortgage, and other documents affecting the Delaware property. Who will issue the title insurance policies? Coordinate the relationship between the national title company, the title insurer or underwriter, and Delaware counsel, including Delaware counsel's role in issuing and signing the policies and endorsements. Have Delaware transfer taxes and recording charges been analyzed? These amounts should be incorporated into the closing economics well before funding. Which Delaware state, county, and municipal affidavits and ancillary documents are required? Identify the required transfer-tax, residence and gain, seller tax, exemption, and recording documentation before the principal documents are circulated for execution. How will settlement funds be handled? The closing structure must account for Delaware counsel's responsibilities regarding settlement funds and disbursement. Does the transaction also require a Delaware entity-law opinion? Do not assume that engaging Delaware closing counsel automatically resolves every Delaware opinion requirement contained in the loan documents or closing checklist. Who will coordinate recording and post-closing title matters? Establish responsibility for recording the Delaware documents, obtaining the recorded instruments, satisfying post-closing requirements, and coordinating issuance of the final title policies. Conclusion: Integrating Delaware Counsel for a Smooth Closing  Delaware's attorney-closing requirement is unusual, but it does not need to make a commercial real estate transaction difficult. The key is understanding the Delaware structure early. Out-of-state counsel continues to manage the overall transaction. National title companies continue to provide the underwriting and national coordination that make multi-state transactions efficient. Lenders and borrowers can continue using their established closing processes. The Delaware component simply needs to be structured so that a Delaware-licensed attorney performs the responsibilities Delaware law assigns to Delaware counsel. That includes more than attending a signing. Delaware counsel’s role encompasses the legal components of the settlement process identified by the Delaware Supreme Court, including title examination, review of documents affecting Delaware real estate, supervision of settlement and disbursement of funds, title-insurance functions, preparation and coordination of the Delaware-specific affidavits and ancillary documents necessary to complete and record the transaction.

September 22, 2026

Landlord Representation

HUD’s Fair Housing Funding Roller Coaster Ride

Over the past several months, the U.S. Department of Housing and Urban Development (“HUD”) has initiated another significant development, this time involving the funding of private fair housing enforcement organizations. In July 2026, HUD announced sweeping changes to its Fair Housing Initiatives Program (“FHIP”), which provides funding to private nonprofit organizations. These organizations investigate housing discrimination complaints, conduct testing, refer cases for enforcement, and provide education or outreach to consumers. Historically, HUD has distributed FHIP funding among more than 100 fair housing organizations throughout the country, often ranging from approximately $75,000 to $425,000. This system allowed smaller community-based organizations to operate local testing, enforcement, investigation, education, and outreach programs. These organizations collectively handle a substantial portion of housing discrimination complaints nationwide (often serving as the first point of contact for consumers who believe they have experienced housing discrimination). Under HUD's proposed restructuring, approximately 80% of the funds appropriated by Congress would have been directed to a select few grant recipients rather than distributed through the traditional model. A coalition of 171 attorneys general collectively filed suit against HUD challenging the new funding criteria. According to recent court filings, the revised funding structure would have significantly reduced the number of organizations eligible to receive grants and potentially shifted resources away from many longstanding local and regional fair housing groups. HUD’s restructuring effort was recently paused when U.S. District Judge Myong Joun issued a decision blocking HUD's implementation of the funding overhaul. The Court concluded that HUD had not adequately explained the basis for the sweeping changes and ordered the agency to revert to the prior funding structure during the litigation. Importantly, the Court's ruling did not resolve the underlying dispute, and the broader legal challenge remained. However, in early September 2026, HUD conceded. HUD will not seek to implement the new FHEO funding initiative; its previous announcement to change funding requirements is no longer in effect, and it will not seek to implement the revised funding criteria in the future. In response, the pending lawsuit was dismissed. From a housing provider's perspective, the immediate practical impact may be more limited than some headlines suggest. The Fair Housing Act itself has not changed. The protected classes remain the same. The reasonable accommodation process remains the same. HUD, DOJ, state agencies, and private litigants retain their existing right to pursue individual claims.  What is changing is the ongoing debate about how fair housing enforcement resources should be allocated and who should receive federal funding to support those efforts.

September 22, 2026

Labor and Employment

The Future of EEO-1 Reporting: EEOC Proposal Creates Compliance Questions

Every September, HR departments at employers with 100 or more employees have turned to the same task: pulling a fourth-quarter payroll snapshot, sorting the workforce into ten job categories, coding each employee by race, ethnicity, and sex, and filing the result with the Equal Employment Opportunity Commission. The EEO-1 report has been a fixture of federal workplace compliance since 1966. By regulation, it is due no later than September 30. This September, employers are in an unusual position. The regulation still says the report is due. The agency that enforces the regulation has proposed eliminating it. And as of early September, the EEOC’s data collections page still reads “The 2024 EEO-1 Component 1 Data Collection is CLOSED,” with a promise that updates on the 2025 collection will be posted “as they become available.” The portal that would allow anyone to comply with the September 30 deadline has not opened, and no filing window has been announced. Welcome to compliance in the interregnum. What the EEOC Has Proposed On July 21, 2026, the Commission voted 2-1, along party lines, to issue a proposed rule rescinding the EEO-1 report along with its counterparts for unions (EEO-3), state and local governments (EEO-4), public school systems (EEO-5), and higher education. The proposal also would eliminate the recordkeeping and record-preservation requirements that supports those reports. The Commission's stated rationale goes further than a burden argument, though the burden numbers are real: the EEOC's own 2023 estimate put annual compliance at roughly $273 million and more than five million reporting hours. The proposal also states that the Commission has preliminarily determined the reports are inconsistent with equal employment opportunity law and potentially unconstitutional, on the theory that collecting race and sex data absent a specific allegation of discrimination sits in tension with Title VII's colorblind mandate. That framing matters. An agency that has said its own form may be unconstitutional is not likely to reverse course on the strength of comment letters. The proposal was published in the Federal Register on July 23, 2026, opening a 30-day comment period that closed on August 24, 2026. A public hearing was held on August 11, 2026. The next step is a final rule, which may or may not track the proposal and may or may not arrive before September 30, 2026. What Has Not Changed This is the part employers tend to skip past, and it is the part that matters. The regulation is still on the books. A proposed rule has no legal effect. Until a final rule is published and takes effect, 29 C.F.R. § 1602.7 continues to require covered employers to file. The EEOC may resolve the tension by opening the portal, by announcing a delay, or by finalizing the rescission. It has not done so yet, and employers should not assume that silence equals relief. The data is still required for other purposes. Even if the EEO-1 disappears tomorrow, the EEOC retains authority to request workforce demographic information in the course of a charge investigation or enforcement action. An employer that stops collecting the data because it no longer has to report it will find itself unable to respond when the same agency asks for it in a narrower, higher-stakes context. State law is unaffected. California's pay data reporting regime applies to employers with 100 or more employees and at least one California employee, and its 2026 amendments tightened storage rules and penalties. Massachusetts requires large employers to submit a copy of their federal EEO-1 to the Commonwealth. Illinois has its own equal pay certification process. None of these depend on the federal report continuing to exist, and several assume  that the underlying data will be maintained. The federal contractor threshold is already gone. The separate obligation for federal contractors with 50 to 99 employees was tied to Executive Order 11246, which was revoked in 2025. Contractors of that size filed anyway last cycle out of caution. Going forward, the 100-employee threshold is the operative one for everybody, regardless of what happens to the rescission. The Quieter Risk: Losing the Data You Need There is a tendency to view the EEO-1 purely as a reporting burden. It is also, for many employers, the only structured demographic dataset the organization maintains. That dataset does work unrelated to the EEOC. Consider the reduction in force. An adverse impact analysis, the statistical check on whether selection criteria disproportionately affect a protected group, depends on knowing the demographics of the workforce before and after. Employers that conduct that analysis do so because it is the single most effective way to identify a problem before a plaintiff's expert does. Employers that stop collecting the data lose the ability to run it. The same is true of pay equity reviews, promotion analyses, and the internal audits that support a good-faith defense when a pattern-or-practice claim arrives. The EEOC's proposal does not change the substantive law. Title VII, the ADA, GINA, and the Pregnant Workers Fairness Act remain fully in force. The proposal changes only whether the government collects the data in advance. It does not change whether the data will matter when a dispute arises. The Practical Takeaway For September, the guidance is unglamorous: Prepare to file. Have the Q4 2025 snapshot data ready in filing format. If the portal opens with a short window, as it has in recent years, employers who waited for certainty will be scrambling. Do not stop collecting. Maintain self-identification processes and keep the demographic dataset current. Store it separately from personnel files, restrict access to those with a legitimate need, and make sure it does not flow to hiring or promotion decision-makers. That last point addresses the Chair's concern directly, and it is good practice regardless of what happens to the report. Inventory your state obligations. Determine which state and local reporting or certification regimes apply to your footprint and confirm that your data collection satisfies them independently of the federal form. Watch for the final rule, and for what follows it. A final rescission may draw litigation. It may also draw a Congressional Review Act resolution, though that would require a presidential signature to take effect. Employers should expect the landscape to shift again before it settles. Sixty years is a long run for any government form. The EEO-1 may be nearing its end. But the questions it was designed to answer, about who works where and whether the numbers tell a story, are not going anywhere. Employers who treat the rescission as permission to stop asking those questions are trading a reporting obligation for a litigation one.

September 21, 2026

Intellectual Property

What In-House Counsel Needs to Know About Trademarks in M&A, Without Becoming a Specialist

Trademarks rarely drive a transaction, but they frequently complicate one. Unlike a patent portfolio that may represent a company’s core technology or a key customer contract that directly impacts revenue, trademarks often sit in the background during the early stages of a deal. They are part of the company’s infrastructure — the legal foundation supporting brand recognition, customer relationships, and market reputation. But during M&A diligence, trademarks move from the background to the spotlight. They represent a company’s goodwill and often serve as one of its most visible assets. As a result, buyers, investors, and their counsel want confidence that the brands they are acquiring are properly owned, adequately protected, and capable of supporting future growth. For in-house counsel, the challenge is not becoming a trademark specialist. It is understanding which trademark issues actually matter in a transaction, which issues can be addressed easily, and which issues could affect deal timing, leverage, valuation, or post-closing integration. The good news is that most M&A trademark problems fall into a handful of predictable categories. Ownership Matters More Than Registration Count A company may have dozens, or even hundreds, of trademark registrations. That number can look impressive during a portfolio review. But registration volume is rarely the most important issue. The first question buyers ask is simpler: Does the seller actually own the trademarks it is selling? Trademark ownership issues often arise from historical events that seemed insignificant at the time: A brand was developed by a founder before the company was formed A related entity filed the trademark application instead of the operating company A trademark was transferred as part of a prior acquisition, but the assignment was never recorded A business unit used a brand without clearly documenting ownership rights A company reorganized but failed to update ownership records These issues may not affect day-to-day operations, but they become important during diligence because ownership is fundamental to the value being transferred. A buyer is not simply acquiring a name or logo. It is acquiring the legal rights associated with that brand. In-house counsel can create significant value by ensuring that ownership records are clean, assignments are documented, and trademark ownership aligns with the company’s current corporate structure before a transaction begins. A portfolio with fewer registrations but clear ownership is often more valuable than a larger portfolio with unresolved questions. Use and Enforceability Are Closely Examined Trademark rights are not created by registration alone. Registration is important, but trademarks derive value from actual use and the ability to enforce rights against others. During diligence, buyers often look beyond registration certificates and ask practical questions: Is the company actually using the marks? Are the marks being used consistently? Are third parties using similar names? Has the company allowed unauthorized use without objection? Are licenses properly documented? Are quality-control requirements being maintained? These questions matter because trademarks can weaken over time if they are not actively managed. For example, a company may have a valuable trademark registration, but if its branding has changed significantly, the registered mark may no longer reflect how customers recognize the business. Similarly, uncontrolled licensing arrangements can create concerns about whether the company has maintained sufficient control over its brand. Enforcement history can also become relevant. A company does not need to sue every potential infringer. In fact, aggressive enforcement is not always the right business decision. But ignoring known conflicts indefinitely can create questions about the strength and value of the brand. The key issue is not whether a company has pursued every possible trademark dispute. It is whether the company has a thoughtful and consistent approach to protecting its intellectual property. Trademark Coverage Should Match the Business Another common diligence issue is a disconnect between the trademark portfolio and the company’s actual operations. Trademark registrations identify specific goods and services. Businesses, however, evolve quickly. A company may have expanded into new products, entered new markets, or changed its business model without updating its trademark strategy. Examples include: A software company registered its mark for downloadable software but now offers a broader SaaS platform A consumer brand expanded internationally but never secured protection in key markets A company acquired a brand but continued operating under it without evaluating whether protection was sufficient A service business entered new categories not covered by its existing registrations These gaps do not automatically create a transaction problem. Many can be addressed through additional filings, updated agreements, or targeted risk analysis. However, they can affect negotiations. Buyers may request additional representations, indemnities, escrow protections, or closing conditions if they believe trademark protection does not match the value of the business being acquired. The earlier these issues are identified, the more options the parties have. Not Every Trademark Issue Is a Deal Breaker One of the most important skills for in-house counsel during M&A diligence is knowing how to prioritize. Not every trademark issue requires immediate remediation. Some issues are easy to fix such as updating ownership records, filing additional applications, cleaning up documentation, or formalizing existing licenses. Some issues can simply be disclosed including a pending application, a manageable third-party conflict, or a registration gap in a non-core market. A smaller number of issues may require more significant solutions such as ownership disputes, threats to core brands, unresolved infringement claims, and gaps affecting a major revenue stream. The goal is not to eliminate every imperfection before a deal begins. Few companies have a flawless trademark portfolio. The goal is to understand the business significance of each issue and respond proportionately. Overreacting to minor issues can unnecessarily slow a transaction. Ignoring meaningful issues can create greater problems later. Effective counsel helps the business distinguish between the two. Preparing Without Overengineering Strong trademark preparation before an acquisition does not require an unnecessarily complicated process. It requires awareness and consistency. Periodic trademark portfolio reviews can identify ownership gaps and protection issues before they appear in diligence. Internal procedures can ensure new brands are cleared and protected before significant investments are made. Basic documentation practices can prevent questions about who owns important assets. Most importantly, in-house counsel should avoid waiting until a transaction is underway to understand the company’s trademark position. A buyer’s diligence request should not be the first time anyone asks: What trademarks do we own? Who owns them? Where are they protected? Are they being used consistently? Are there known risks? When those questions have already been answered, diligence becomes faster and more predictable. Trademarks Support Transactions When They Are Understandable and Defensible Trademarks do not need to be perfect to support an M&A transaction. They do, however, need to be understandable, defensible, and aligned with the business. For in-house counsel, the objective is not to become a trademark expert. It is to recognize the issues that affect deal value and timing, identify risks early, and ensure that the company can clearly explain the strength and limitations of its brand portfolio. The companies that handle trademark diligence most effectively are not necessarily those with the largest number of registrations. They are the companies that understand what they own, why it matters, and how those rights support the business they are building.

September 21, 2026

Landlord Representation

Baltimore City Rental Property Notice Rules: Avoid Costly Legal Disputes

For landlords and tenants in Baltimore City, understanding notice requirements is essential to protecting legal rights and avoiding costly disputes. Both Maryland law and Baltimore City regulations establish specific timelines that must be followed before actions such as lease termination, rent increases, or eviction proceedings can move forward. Knowing and complying with these requirements can help both parties resolve issues efficiently and stay in compliance with the law. When Rent Goes Unpaid: Failure to Pay Rent Notices When a tenant fails to pay rent, landlords must generally provide a written 10-day notice before filing a Failure to Pay Rent action in court. This notice serves as an opportunity for the tenant to address the outstanding balance before legal proceedings begin. Staying Beyond the Lease: Tenant Holdover Requirements A holdover tenancy occurs when a tenant remains in possession of a rental property after the lease term has expired. In these situations, landlords are generally required to provide at least 60 days' advance written notice before initiating legal action. Providing proper notice helps ensure that both parties have adequate time to prepare for the end of the tenancy and avoid unnecessary disputes. Ending a Month-to-Month Tenancy For month-to-month rental agreements, either the landlord or the tenant must typically provide at least 60 days' written notice before the end of the rental period. This notice requirement allows both parties sufficient time to make alternative arrangements, whether that involves finding new housing or securing a new tenant. Addressing Lease Violations Before Taking Action When a tenant violates a lease provision other than nonpayment of rent, landlords are generally required to provide a written 30-day notice detailing the alleged violation. Depending on the circumstances and the terms of the lease, tenants may also be given an opportunity to correct, or "cure," the issue before further action is taken. Clear communication and timely notice can often prevent minor issues from escalating into formal legal disputes. A Tenant's Responsibility: Providing Notice Before Moving Out Tenants should also be aware of their own notice obligations when planning to vacate a rental property. Failure to provide the required notice may result in additional rent liability or other financial obligations under the lease. Reviewing lease terms well in advance of a planned move can help tenants avoid unexpected costs. Why Proper Notice Matters Notice requirements can vary depending on the type of tenancy, lease provisions, and the specific facts of a situation. For that reason, both landlords and tenants should carefully review applicable laws and consult legal counsel when questions arise. Proper notice is often the first and most important step toward resolving rental disputes legally, efficiently, and with minimal expense. Understanding these requirements can help protect everyone involved and reduce the risk of costly litigation.

September 18, 2026

Commercial Litigation

Understanding Motions to Dismiss: Why They Are Not the Easy Escape Many Defendants Hope For

No one wants to be a defendant in a lawsuit. This is especially so when you feel like the claims against you are inaccurate and/or spurious. As a result, if you've been sued, one of your first questions may be: "Can we get this case thrown out right away?" It's a natural reaction. Litigation is expensive, time-consuming, and stressful. The idea of ending a lawsuit before spending money on document exchanges, depositions, court appearances, and even a trial is appealing to anyone facing legal action. That is where a motion to dismiss comes in.  A motion to dismiss asks the court to end a lawsuit or at least dispense with individual claims at a very early stage, often before any evidence has been exchanged between the parties. While that sounds straightforward, motions to dismiss are often much harder to win than most people expect.  Understanding why can help you make a more informed decision about whether pursuing one makes sense in your case. What Is a Motion to Dismiss? Put simply, a motion to dismiss is a formal application asking the court to decide that, even if everything alleged in the lawsuit were true, the plaintiff still lacks a valid legal claim. At this early stage of a case, the court generally is not deciding who is telling the truth. Instead, the court is determining whether what the plaintiff has asserted in the complaint could, even if proven later, legally support a claim. This can be one of the most confusing aspects of litigation for defendants.  It is easy to read a complaint and immediately conclude that it contains and/or identify exaggerations, inaccuracies, or outright falsehoods. A defendant considering a motion to dismiss might understandably ask: "Why would a court ever assume any of this is true?" The answer is that, with a few limited exceptions, it legally has to in order to apply applicable law governing motions to dismiss.  In doing so, it is often creating a legal fiction solely for the purpose of deciding the motion to dismiss and is not deciding whether the allegations are actually true. It merely, temporarily, accepts them as true to decide whether the lawsuit is legally sufficient to move forward. If the answer is no—if even accepting all the allegations as true, there is still no claim—the court can dismiss a case right away, before any discovery, on the ground that there is no legally supportable claim. Those limited exceptions (that the court does not have to accept as true) are bald allegations that amount to conclusions only and are really fact-free; allegations that are conclusively refuted by documentary evidence.  For instance, if the complaint simply accuses a defendant of committing fraud but does not say how, the Court need not accept it as true. Similarly, if there is a document or record that shows, in fact, that the defendant did not commit fraud, the Court does not need to accept that allegation as true.  Therefore, in addition to the above, where the claims are refuted by documentary evidence or not supported by sufficient facts, the court can also dismiss a case right away, before any discovery, on the ground that there is no legally supportable claim. Why Motions to Dismiss Are Difficult to Win Motions to dismiss are extremely difficult to win.  This is because the court must create the legal fiction discussed above. It looks at a complaint in the light most favorable to the person who filed it, and therefore, the burden on the person seeking dismissal is significant. To win, the defendant typically must show that the plaintiff would not be entitled to relief under any reasonable interpretation of the alleged facts, or that records definitively undermine their claim. In other words, the defendant must show that the lawsuit is legally defective from the start as it is written. That is a high bar. Many defendants believe they are right on the facts and have evidence to prove it. While they may very well be correct, since a motion to dismiss comes into play before evidence is exchanged, if there are any issues that cannot be definitively decided, the case must move on to the discovery phase. As evidence usually comes into play later in the case, after discovery has occurred, unless it is available to the court on the motion to dismiss, it cannot be considered in dismissing the case. As a result, cases that ultimately fail may survive an early motion to dismiss. Some of the most spurious cases require discovery to show their lack of merit.  Many losing cases can defeat motions to dismiss if they reach the minimal bar of plausibly stating a claim. What Happens If the Motion Is Denied? One of the most important points for clients to understand is that losing a motion to dismiss does not mean losing the case. It simply means the lawsuit will continue. The movant will answer the complaint. The parties then move into discovery, where they exchange documents, take depositions, and gather evidence. The defendant still has the opportunity to challenge the plaintiff's claims later through a motion for summary judgment or at trial. A denial means only that the court believes the plaintiff has alleged enough facts for the case to proceed. It is not a determination that the plaintiff is correct. The Cost-Benefit Analysis A motion to dismiss necessarily creates additional legal fees at the beginning of a case; therefore, every client should be educated on to the risks and strategic aims of submitting this permissive filing. Preparing the motion often requires detailed legal research, drafting extensive papers, reviewing opposition papers, preparing a reply, and often appearing in court for oral argument.  If the motion is denied, the case generally returns to the same stage it would have reached if no motion had been filed. For that reason, clients should view a motion to dismiss as an investment with both potential rewards and risks. The reward is obvious: a successful motion could end the lawsuit early and save substantial litigation costs. The risk is that the client may spend money pursuing the motion only to end up proceeding to discovery anyway. Does Winning End the Case Forever? Not necessarily. In some situations, a successful dismissal allows the plaintiff to revise the complaint and try again. The court may determine that the lawsuit, as written, is inadequate and give the plaintiff an opportunity to fix the problem. In other cases, the court dismisses the claims permanently. This is often referred to as a dismissal "with prejudice." When that occurs, the plaintiff generally cannot bring the same claims again, although an appeal may still be possible. The likelihood of a permanent dismissal depends on the facts of the case, the legal issues involved, and the court handling the matter.  A client should include this in its risk-reward analysis discussed above in when deciding to make such a motion. So When Does a Motion to Dismiss Make Sense? Despite the challenges, motions to dismiss remain valuable tools in many cases. They can be appropriate when there is a strong legal defect in the complaint, when key claims are clearly barred by law, or when eliminating claims early could significantly reduce litigation costs and exposure. In some situations, even filing the motion can help clarify the issues in dispute and force the plaintiff to identify the legal basis for the case. The key is understanding that a motion to dismiss is not a guaranteed shortcut. It is a strategic decision that should be weighed carefully against the costs, risks, and potential benefits. The Bottom Line Many people enter litigation hoping there is a quick way to make the lawsuit disappear. Occasionally, a motion to dismiss provides exactly that result. More often, however, the case proceeds beyond the initial stage and into discovery. The decision to file a motion to dismiss should therefore be made with realistic expectations. The client should go in with eyes wide open. It can be a powerful tool when the circumstances are right, but it is not a magic wand. The most important thing is to understand both the opportunities and the risks before making the investment. An informed client is better positioned to make sound decisions, manage litigation costs, and develop an effective overall case strategy.

September 17, 2026

What Dolly Can Teach Us About Caring for the Caregiver

Dolly Parton died late last month at age 80 following what her family called a “brief battle” with cancer. The worldwide, heartfelt tributes that followed focused, rightly, on her legacy not only in music, but in stories of her generosity and kindness spanning over her sixty years in the public eye. There is no doubt that Dolly will be remembered as one of the most beloved figures in American culture. Tucked inside the coverage of her extraordinary life, however, was her final year, which told a much quieter story. That story deserves its own moment of attention, not because it explains her death, but because it is a pattern that so many caregivers will recognize in themselves and may have contributed to it. The Caregiver Ignoring Her Own Health After her husband, Carl Dean, died in March 2025, Dolly spoke openly about the toll caregiving had taken on her. She shared candidly that she had been dealing with health issues of her own, which she gladly set aside while Carl was ill. In fact, following his death, she described her state as "worn down and worn out," reflecting on her grief and the toll the years of caretaking that preceded it. Dolly was not a woman without resources; she had access to the best medical care money could buy, a devoted circle of family and friends, a strong faith, and a public platform to talk about what she was going through. And still, by her own account, she put her health on the back burner and chose not to share the incredible toll caregiving was taking on her while she was living it. I think that is also a part of Dolly’s legacy, and a topic worth sitting with: if someone with every advantage can lose track of her own well-being while caring for a loved one, what does that suggest about the millions of us doing the same thing with far fewer resources, far less support, and far less room to admit they are struggling? The Pattern Isn't Rare — It's the Norm Caregiver self-neglect is well-documented: it is not anecdotal. Statistics show that nearly two in five caregivers have at least two chronic diseases of their own. Family caregivers routinely delay their own doctor's appointments, skip screenings, ignore symptoms, and allow their own chronic conditions to go unmanaged all the while managing someone else's illness, medications, and activities of daily living. The costs of ignoring one’s own care do not always end dramatically. Sometimes it is a persistent cough that is only managed by copious amounts of lozenges, or blood pressure that remains high and untreated, bone-tired exhaustion that is never named as anything more serious than "tired."  In fact, Dolly’s own language, “worn down, worn out,” is exactly how so many caregivers describe themselves, usually downplaying, always in passing, and too often without seeking help for it. What This Isn't To be clear about what this piece is not saying: there's no basis for claiming that caregiving caused Dolly’s cancer or her subsequent death. Her family cited a brief illness, and drawing a straight line from caretaking to cancer is, no doubt, a distortion. What can be said, though, is that there are millions of those of us who live it, and indeed, Dolly said it herself: she set her own needs aside for a long stretch of time while caring for someone she loved. That care and devotion left her depleted in ways she was still wrangling with when she died last week. The Lesson If you are currently a caregiver for a spouse, a parent, or a child, the takeaway should not be the ways in which you fail to care for your own health. Rather, it is permission. Permission to keep your own appointments. Permission to admit the fatigue that you are experiencing is worth mentioning to a doctor, instead of just pushing through. Permission to ask for help before you are "worn down and worn out," rather than after. Dolly Parton spent her career dazzling us with her beautiful voice, her songwriting prowess, sharing other people's stories, and giving generously to causes far beyond herself — literacy, LGBTQIA advocacy, vaccine research, disaster relief - just to name a few. After Carl died, she was honest about the one place she had not been as generous: with herself. That honesty is worth more than a cautionary tale about Dolly specifically. It should be a nudge to the rest of us, quietly doing the same thing right now, and telling ourselves that it is ok to put our own well-being aside. It probably isn't. And it's worth checking.

September 16, 2026

Commercial Litigation

Before You File in Tax Court: Should Your Client Take the IRS to a Jury?

When the IRS proposes a substantial tax liability, many taxpayers and their advisers instinctively assume that the next step is the United States Tax Court. That is often the correct forum. Tax Court lets taxpayers challenge a deficiency without first paying and also offers access to judges who deal with federal tax law every day. But Tax Court is not the only option. In an appropriate case, a taxpayer may instead pay the disputed liability, file an administrative refund claim, and bring a refund suit in federal district court. Unlike Tax Court, a federal district court can provide something potentially significant: a trial before a local jury. That alternative may be especially important when the taxpayer’s dispute falls within a category that the IRS has publicly targeted and in which the Tax Court has developed a substantial body of government-favorable precedent. Captive-insurance arrangements, Puerto Rico tax-incentive cases, conservation easements, listed transactions, and transactions of interest are prominent examples. Sometimes the Forum Is as Important as the Tax Issue I often say that jury trials are, at least in part, popularity contests — and it is hard to lose a popularity contest to the IRS. A jury may be particularly receptive when a taxpayer can present credible witnesses, contemporaneous business records, and a logical explanation for the transaction under examination. When the IRS’s position depends on portraying a legitimate business, its owners, or its advisers as abusive or dishonest, a local jury may provide a valuable opportunity to test that characterization. This does not mean that a jury will disregard the law or automatically side with the taxpayer. The taxpayer must still establish the elements necessary to recover a refund, and the district judge will decide the governing legal questions. But when the outcome depends heavily on facts, credibility, and business reality, the identity of the factfinder matters. The Concern Is Greatest in Heavily Targeted Categories Every tax case should be decided on its own facts. In practice, however, prior decisions inevitably shape how later cases are evaluated. That becomes particularly significant when the Tax Court has repeatedly considered a particular type of transaction and consistently ruled in the government’s favor. Over time, the disputed category can acquire a negative identity of its own. A taxpayer may then face not only the evidence in its particular case, but also an existing body of decisions involving other taxpayers, different advisers, different documents, and different facts. Captive-Insurance Arrangements The Tax Court has decided a series of micro-captive cases in favor of the government. Those decisions have developed a body of precedent addressing risk distribution, actuarial pricing, claims administration, circular cash flows, risk pools, and whether the arrangements constitute insurance in the commonly accepted sense. Many of the arrangements addressed in those opinions had significant factual weaknesses. Nevertheless, the accumulation of adverse decisions can make it difficult for a taxpayer with materially different facts to separate its case from the broader category. Once “micro-captive” or “§ 831(b)” appear in the case, the taxpayer may find itself defending not only its own insurance program but the reputation of the industry as a whole. Puerto Rico Tax-Incentive Cases The IRS has established a compliance campaign directed at taxpayers claiming benefits under Puerto Rico Acts 20 and 22, now incorporated into Act 60. The campaign addresses whether taxpayers were bona fide residents of Puerto Rico, whether income was properly sourced to Puerto Rico, and whether particular structures improperly shifted income away from the United States. The IRS has committed examination resources, technical guidance, data analysis, and other enforcement tools to these cases. Its published materials identify perceived noncompliance involving both residency and income sourcing. As these cases move from examination into litigation, taxpayers may confront a government narrative that treats the Puerto Rico incentive structure itself with suspicion. Yet the critical questions — where the taxpayer lived, where services were performed, how the business operated, and where the income was earned — are often highly factual. A jury may evaluate those questions through testimony, business records, travel records, communications, and other contemporaneous evidence. Conservation Easements Conservation-easement litigation has likewise produced a substantial body of government-favorable decisions. Many cases involve technical deed requirements, valuation disputes, partnership structures, promotional materials, and questions concerning the taxpayer’s charitable intent. The IRS has publicly identified abusive syndicated conservation easements as an enforcement priority. That designation can influence how the transaction is perceived before the taxpayer’s particular facts are examined. A jury will not cure a defective deed or disregard an applicable statutory requirement. But where the dispute turns on valuation, intent, reasonable reliance, or the credibility of competing experts, jury review may offer a materially different forum. Listed Transactions and Transactions of Interest The same concern applies more broadly to listed transactions and transactions of interest. An IRS designation creates reporting obligations and potentially significant penalties, but it does not establish that every taxpayer participating in the transaction acted improperly. Nor does it prove that the IRS’s proposed tax treatment is correct in every case. Nevertheless, the designation itself can become a central feature of the dispute. The taxpayer may be viewed as a participant in an abusive strategy before the court considers the specific facts, legal advice, business purposes, and economic consequences of the transaction. In those circumstances, presenting the case to a jury without the same history of category-specific Tax Court decisions may be strategically important. Tax Court and District Court Offer Different Paths A taxpayer who receives a statutory notice of deficiency may petition the Tax Court without paying the proposed liability. The case is decided by a Tax Court judge, not a jury. Alternatively, the taxpayer may allow the liability to be assessed, pay the amount required to pursue a refund action, file a proper administrative claim for refund, and, after satisfying the applicable procedural requirements, bring suit in federal district court. Federal law gives district courts jurisdiction over qualifying federal tax-refund suits, and either party may request a jury trial. The taxpayer may also bring a refund suit in the United States Court of Federal Claims, but that court does not provide a jury. When jury review is part of the litigation strategy, federal district court is therefore the relevant alternative. The Principal Drawback: Payment Usually Comes First The most obvious advantage of Tax Court is that the taxpayer ordinarily does not have to pay the asserted deficiency before obtaining judicial review. A district-court refund suit generally works in the opposite order. Under the Supreme Court’s full-payment rule, the taxpayer ordinarily must pay the assessed tax before filing suit to recover it. For a large deficiency, that can create a substantial financial burden and may make the district-court route impractical. There are important exceptions for certain divisible taxes and penalties. Employment taxes, trust-fund recovery penalties, and some assessable penalties may permit refund litigation after payment of only the divisible portion required by the applicable statute. Internal Revenue Code § 6703 also provides a special procedure for challenging certain promoter penalties, including penalties under § 6700. The payment requirement must therefore be evaluated based on the particular tax or penalty. CPAs should not assume either that the entire assessment must always be paid or that a partial payment will necessarily be sufficient. Where the taxpayer has access to the necessary funds, or where a divisible assessment permits a more limited payment, the strategic value of a jury may justify the cost of pursuing the refund route. Ankner Demonstrates the Value of Escaping a Category-Based Narrative The potential value of a district-court jury was illustrated in Ankner v. United States, where I served as lead trial counsel for a captive-insurance manager and its chief executive officer in their successful challenge to approximately $4 million in promoter penalties imposed under § 6700. Although Ankner involved promoter penalties rather than a direct challenge to captive-insurance deductions, the government’s theory depended on its characterization of the underlying micro-captive arrangements. The verdict represented the first courtroom victory for a taxpayer in the § 831(b) micro-captive arena and, to date, remains the only taxpayer victory — standing apart from an otherwise uninterrupted series of government victories in Tax Court. After making the payment required to invoke the special statutory refund procedure, the taxpayers challenged the penalties in the United States District Court for the Middle District of Florida. At trial, the government could not prevail merely by characterizing the underlying arrangements as micro-captives or relying on adverse decisions involving other taxpayers. It was required to prove the specific statutory elements of § 6700 based on the evidence involving these taxpayers. The jury heard the witnesses, reviewed the documents, and considered what the taxpayers had actually said, what they knew, and whether the statements identified by the government were materially false. The jury rejected the government’s position and found that the taxpayers were not liable for the penalties. The lesson is not that juries will always rule for taxpayers. It is that a jury can require the parties to move beyond the label attached to a transaction and return the focus to the particular witnesses, documents, representations, and business facts in the case. Although the burden of proof in Ankner was governed by the provisions applicable to § 6700 penalties, the broader lesson applies to other disputes: an IRS enforcement designation or a series of adverse cases involving other taxpayers should not replace individualized consideration of the evidence. The Refund Claim Should Be Prepared With Litigation in Mind Choosing district court requires more than paying the assessment. Internal Revenue Code § 7422 generally requires the taxpayer to file an administrative refund claim before bringing suit. The claim should identify each ground on which the refund is sought and provide sufficient facts to advise the IRS of its basis. The refund claim should therefore be prepared as the foundation for potential litigation. Counsel should consider the legal theories, relevant tax periods, supporting documents, potential witnesses, and expert issues before the claim is filed. A strong refund claim may also improve the prospects for resolving the dispute administratively. It demonstrates that the taxpayer has developed the case, understands the evidentiary requirements, and is prepared to proceed if the IRS does not allow the refund. The Forum Decision Must Be Made Early The choice between Tax Court and district court should not be postponed until the eve of trial. When the IRS issues a statutory notice of deficiency, the taxpayer ordinarily has 90 days to file a Tax Court petition. Filing that petition generally forecloses a later district-court refund action involving the same tax and period. The taxpayer and its advisers should therefore evaluate the competing forums before the petition is filed. If the taxpayer selects the refund route, the administrative claim and the limitations period for filing suit must also be monitored carefully. Once the IRS mails a formal notice of disallowance, Internal Revenue Code § 6532(a) generally provides two years to file suit. Continuing to negotiate with the IRS or pursuing an administrative appeal does not, by itself, extend that deadline. When CPAs Should Raise the Issue CPAs are often in the best position to recognize cases that may benefit from district-court review. They understand the client’s business, know the quality of the records, and can evaluate whether the taxpayer and other witnesses can credibly explain the disputed transaction. The forum question deserves consideration when: The IRS appears to be applying an industrywide enforcement position rather than focusing on the taxpayer’s individual facts The dispute turns heavily on credibility, intent, valuation, reasonable reliance, or business purpose The client has strong witnesses and contemporaneous documentation The client’s business explanation can be communicated clearly to non-tax specialists Payment is financially possible, or a divisible-tax procedure may reduce the required payment The deadline for filing a Tax Court petition is approaching These factors do not mean district court is necessarily the better forum. A dispute involving a narrow statutory interpretation or an issue driven principally by specialized tax doctrine may be better suited to a Tax Court judge. But a fact-intensive case with a strong record and an unfavorable category-based narrative should prompt a deliberate forum analysis. A CPA does not need to determine the proper forum. The CPA needs to recognize when the choice deserves a conversation with litigation counsel before the available options narrow. Do Not Treat Tax Court as the Automatic Choice Tax Court remains an important and frequently appropriate forum. Its prepayment jurisdiction and specialized judges offer substantial advantages. But when a taxpayer has materially better facts than the cases that preceded it, the ability to present those facts to a local jury may offer meaningful strategic value. The question should be considered before Tax Court becomes the automatic, and potentially irrevocable, choice. As Ankner demonstrates, moving beyond the IRS’s label and focusing the factfinder on the taxpayer’s actual evidence can change the outcome.

September 15, 2026

Intellectual Property

Lost in 1957, Litigated in 2026: The Copyright Risks Hidden in Older Creative Works

Puerto Rican singer-songwriter Roy Brown spent decades setting the poems of celebrated nationalist poet Juan Antonio Corretjer to music. After Corretjer died in 1985, one of his heirs assigned the poems to Latin American Music Company (LAMCO), a music publisher that registered the works with the Copyright Office in 2000 and began claiming royalties on Brown's recordings. Brown sued, LAMCO countersued, and the parties have been in federal court in Puerto Rico for over twenty years across multiple rounds of litigation. The most recent chapter closed on August 12, when Judge María Antongiorgi-Jordán of the District of Puerto Rico issued a ruling on cross-motions for summary judgment – one which should be on the radar of anyone whose work involves older creative material. The dispute over twelve of the thirteen poems turned on the Copyright Act of 1909, which governed all creative works published before January 1, 1978. Under that statute, publishing a work without a proper copyright notice was fatal to copyright protection, as the work entered the public domain immediately, with no opportunity to fix the mistake. LAMCO and Corretjer's daughter, Consuelo, tried to avoid this result by invoking the "limited publication" doctrine, which provides that sharing copies only with a specifically select group, for a limited purpose, and without allowing further distribution does not trigger the notice requirement. Corretjer was a politically persecuted dissident under FBI surveillance, and the claimants argued he kept his manuscripts within only a trusted circle of allies. They supported that theory with an affidavit from an administrator who had no personal knowledge of any of the events at issue, but the administrator’s description of Corretjer, a political poet determined to reach as many sympathizers and spread his political ideas, undercut the claim that he was carefully restricting who could receive his work. The court granted summary judgment for Brown on all twelve poems. The thirteenth, "Boricua en la Luna" (a piece that functions as something close to a second national anthem for Puerto Rico), survived as a question for the jury. Brown claims Corretjer personally handed him the manuscript at a 1976 concert in Ponce and told him to set it to music. Under First Circuit law, this kind of exchange can establish an oral implied license. Even so, Brown is not out of the woods: issues regarding scope of permission remain, and an informal instruction to "set it to music" may not necessarily authorize decades of commercial recordings, printed lyrics, and album packaging. For clients in the music and arts space, this case illustrates two risks. Pre-1978 creative works are governed by a legal framework that offered no safety net for a missing copyright notice. If the notice was absent when the work was first published, the copyright was lost, and no subsequent registration could claw back the rights. Anyone acquiring or asserting rights in older material needs to examine the original publication history before assuming protection exists. The case also highlights the danger of relying on informal permissions. A verbal authorization granted in a concert hall fifty years ago, with no surviving witness and a principal who has since passed away, may end up before a jury rather than settling the question cleanly, and even a favorable verdict may leave the scope of those rights unresolved.

September 14, 2026

Family Law

Electronic Surveillance Abuse in Family Law Cases

Technology has made it easier than ever to communicate, share information, and stay connected. Unfortunately, it has also created new opportunities for a spouse or partner to improperly monitor the other. In family law cases, electronic surveillance can raise serious concerns involving privacy, safety, credibility, and the well-being of children. Electronic surveillance may take many forms. Allegations can involve unauthorized access to emails or social media accounts, monitoring text messages, tracking a person's location through a device or vehicle, or the use of technology to monitor communications. In some cases, a party may not realize that their activity is being monitored until evidence of the surveillance emerges during a divorce or custody proceeding. These allegations can have significant legal consequences. Depending on the circumstances and applicable law, information obtained through unauthorized surveillance may raise questions about how the evidence was obtained and whether it may be used in court. Surveillance allegations may also become relevant to broader issues in a custody case, particularly when the conduct suggests an effort to intimidate, control, or interfere with the other parent's privacy or safety. Electronic surveillance can also create discovery issues. A party may seek records concerning devices, accounts, applications, location data, or other electronically stored information. At the same time, attorneys must carefully consider the privacy implications and the legal limits concerning the collection and use of that information. The important lesson is that technology is an inherent part of family law, not a separate consideration. As electronic devices and digital accounts become increasingly integrated into everyday life, disputes over monitoring and surveillance are likely to become more common. Anyone who believes they are being electronically monitored, or who is accused of engaging in surveillance, should seek legal advice before accessing, copying, deleting, or distributing potentially relevant digital information.

September 11, 2026

Family Law

Could Your AI Searches Become Evidence in a Family Law Case? 

As artificial intelligence becomes part of everyday life, a new family law discovery issue is beginning to emerge. What happens when attorneys seek a party’s AI search history? People are increasingly using AI tools to ask questions they might previously have entered into an internet search engine or discussed privately with a friend. In a contentious custody case, however, a search such as “how can I keep my children from my spouse?” could potentially take on a very different significance when viewed in the context of litigation. Family law attorneys may begin seeking AI prompts, conversation histories, and other records during discovery or through subpoenas, particularly when those records could shed light on a party’s intentions, state of mind, or conduct. A series of searches concerning hiding assets, restricting parenting time, monitoring a spouse, or keeping children away from the other parent could become relevant evidence depending on the facts of the case and applicable discovery rules. Although traditional rules of discovery and evidence still apply, the use of AI presents a new and evolving area of uncertainty. Courts and practitioners may have to grapple with questions about the relevance, discoverability, authenticity, privacy, and admissibility of AI-generated conversations and search histories. Adding to the uncertainty, whether an AI provider retains the requested information, and whether it can or will disclose that information in response to a subpoena or other legal process, may vary significantly depending on the platform, its policies, and the circumstances of the request. Nevertheless, the practical lesson for family law litigants is important: AI searches should not necessarily be treated as consequence-free conversations. Just as texts, emails, social-media activity, and internet searches can become relevant in litigation, AI interactions may increasingly become another source of electronically stored information. For attorneys, this creates a new area of discovery to consider. For clients, it creates a new reason to think carefully about what is entered into an AI platform, particularly when a divorce, custody dispute, or other family law proceeding is anticipated. As AI becomes more integrated into daily life, family law discovery will likely have to evolve with it.

September 11, 2026

Labor and Employment

New York Joins Growing List of States Requiring Employee Access to Personnel Records

After Governor Kathy Hochul signed S.3460 into law on September 9, 2026, New York is now one of 18 states that  require employers to provide employees access to their personnel records. The statute will apply in both public and private sectors employees and former employees, effective November 8, 2026. Expanded Definition of “Personnel Record,” Record Retention Requirement The new law defines "personnel record" as records that are used, have been used, or may be used in connection with decisions concerning an employee's qualifications for employment, promotion, transfer, compensation, or discipline. The definition also extends to records maintained by third-party vendors acting on behalf of an employer. As a result, employers may need to evaluate not only the contents of formal personnel files, but also records maintained through payroll providers, HR platforms, and other personnel administration services. Employers will also have to determine whether manager working notes, internal communications regarding employee performance, draft evaluations, or portions of investigative files are subject to disclosure. Although the law excludes certain information that would constitute an “unwarranted invasion” of another individual's privacy, it provides limited guidance on how that exclusion should operate in practice when employers are balancing employee access rights against confidentiality concerns. Employers must retain complete personnel records during an employee's employment and for three years following separation. When Access and Notice Requirements are Triggered The statute has a straightforward requirement for scenarios where an employee requests access to their file. Upon receiving a written request, employers will be required to furnish personnel records within five business days at no cost to the employee. Employees are entitled to review their personnel records twice in a calendar year. But the statute creates an unclear requirement for scenarios where an employer adds items into the personnel file that could “negatively affect” the employee. Specifically, if there is any item added to the personnel file that could “negatively affect the employee's qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action,” it must notify employees within 10 days. In its current form, the law does not define what constitutes “negative” information, which will likely create substantial compliance questions. For example, it is unclear whether routine coaching memoranda, attendance records, customer complaints, investigatory materials, manager notes, performance improvement plans, or preliminary performance concerns trigger the notice obligation. Similarly, employers may struggle to determine whether information becomes "negative" only after a disciplinary decision has been made or whether notice is required whenever a document could potentially influence a future employment decision. Right to Respond to Information in File The new law allows employees to submit written statements contesting information contained in their personnel records. If the employer and employee cannot agree on whether the challenged information should be removed from the personnel file, the employer will be required to include the employee’s contention in their personnel file. The statute also provides employees with an avenue to expunge contested information through the “judicial process” with relatively little guidance regarding how disputes involving subjective performance evaluations or disputed factual conclusions should be resolved. Government Entity in Charge of Enforcing Statute The New York State Attorney General’s Office is responsible for enforcing this new law. Violations of the statute may result in civil penalties ranging from $500 to $2,500. The law also prohibits retaliation against employees who exercise their rights under the statute. As a result of the ambiguities surrounding what information constitutes a “personnel record,” when information added to a personnel file “negatively affects” an employee, and the particular process an employee needs to follow in order to successfully “expunge” an item in their personnel record, the New York State Attorney General’s Office may weigh in to provide guidance on how it plans to enforce this law. In the meantime, employers will be required to make judgment calls regarding the scope of the notice requirement until courts or regulators provide guidance. Conclusion With the November 8, 2026, effective date rapidly approaching, employers should begin reviewing personnel record practices, assessing the records maintained by third-party vendors, updating retention protocols, and developing procedures for responding to employee requests within the statute's five-business-day deadline. Employers should also consider training human resources personnel and managers regarding the law's notice requirements, particularly given the uncertainty surrounding what information may be considered "negative." While the law clearly reflects New York's intent to expand employee access to personnel information, many of its most consequential provisions remain open to interpretation. As employers prepare for implementation, the greatest compliance challenge may not be producing personnel records, but determining when the statute requires notice of information that could be viewed as having a negative impact on an employee's career. Until additional guidance emerges, employers should take a cautious approach and closely monitor developments surrounding this significant change to New York employment law.

September 11, 2026