Offit Kurman Blogs

Estates and Trusts

DIY Estate Planning: A Cautionary Tale

Ann Aldrich was a frugal lady. When it came time to write her will, the Florida resident decided to use “E-Z Legal Forms” and leave everything to her sister, Mary. By preparing the will herself, Ann thought she would save the cost of using a lawyer and achieve the same result. What could possibly go wrong? As it turns out, plenty. The resulting will was ambiguous, leading to confusion, a family squabble, and ultimately, a trip to the state Supreme Court. The fatal flaw lay in the form Ann had purchased. It included no “residuary clause”—a standard will provision that disposes of property not otherwise addressed in the document, including property acquired after the will is signed. In an effort to be thorough, Ann listed the specific items she wished to bequeath to her sister—her Florida home and its contents, a rollover IRA, a life insurance policy, a car, and various bank accounts. The E-Z Legal Form should have taken it from there. But the fill-in-the-blank document failed to say what should happen to everything else Ann owned. As it happened, Mary, the sister Ann intended to be her primary beneficiary, died first, leaving her estate to Ann. These additional assets, which were now part of Ann’s estate, included cash and real estate—assets Ann couldn’t have mentioned in her will because she didn’t own them at the time. Ann had named her brother, James, to receive the listed assets if Mary died first. When Ann died a few years later, James thought he should inherit Ann’s entire estate. But Ann’s two nieces disagreed. They argued that because the will was silent as to the cash and real estate Mary had left Ann, those assets should pass to the nieces through the rules of intestacy. In other words, they reasoned that any assets the will specifically failed to mention should go to Ann’s natural heirs—as though she had died with no will at all. Legal wrangling ensued, and attorney fees quickly mounted. The Florida Supreme Court eventually heard the case and agreed with the nieces. The will conveyed only certain assets, the court said, and the rest of Ann’s estate would pass to the nieces through intestacy. Ann’s well-intentioned frugality backfired and it cost her family both money and heartache. In her concurring opinion, Florida Supreme Court Justice Barbara Pariente cited the dangers of relying on an off-the-shelf form for estate planning: “I therefore take this opportunity to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance,” the judge said. “As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees—the precise results the testator sought to avoid in the first place,” she said. The simple fact is that an estate plan is more than a will, and a ready-made form is no substitute for legal advice. A proper estate plan takes every aspect of your finances into account. This includes the extent of your assets, how property is titled, transfer-on-death provisions, beneficiary designations, and likely tax consequences. The completed plan will be tailored to your unique circumstances and leave you prepared for whatever lies ahead. The good news is that having an attorney prepare your estate plan is easy. For many people, only two meetings are necessary—one to discuss your planning goals and another to execute the documents. This vital task can prevent your estate from becoming its own cautionary tale.

October 27, 2026

NJDEP Enforcement Insight

Does Correcting an NJDEP Violation Eliminate the Penalty?

Correcting an NJDEP violation may prevent a penalty where the violation qualifies as a “minor violation” subject to a grace period. In other cases, correcting the violation may stop additional penalties from accruing, but it does not eliminate liability for the violation that already occurred. The result depends on the applicable NJDEP program, the nature of the violation, and when the company returns to compliance. Minor Violations May Be Corrected Without Penalty New Jersey’s Grace Period Law requires NJDEP to provide a period of time to correct certain violations classified as “minor.” If the violation qualifies for a grace period and the company corrects it within the required time, NJDEP will not impose a penalty for that violation. The deadline matters. If the company fails to correct the violation within the grace period, it loses that protection, and NJDEP may pursue formal enforcement and penalties even if the violation is subsequently corrected. Not every violation qualifies as minor. For example, NJDEP’s site remediation program explains that a violation generally will not qualify for a grace period if it results from purposeful, knowing, reckless, or criminally negligent conduct, has existed for an extended period, or involves certain repeat violations. Companies receiving an NOV should therefore determine promptly not only what must be corrected, but also whether the violation qualifies for a grace period and when that period expires. Correcting Non-Minor Violations May Not Eliminate the Penalty The result is different for violations that do not qualify for grace-period protection. For example, under NJDEP’s NJPDES enforcement rules, permit violations may be subject to civil administrative penalties, and each day that a continuing violation persists can create additional penalty exposure. Consider a facility that exceeds a permit limit on Monday, discovers the problem, and corrects it on Tuesday. Correcting the problem may prevent additional days of violation, but it does not necessarily eliminate NJDEP’s ability to assess a penalty for Monday’s violation. The practical takeaway is that correcting an NJDEP violation is almost always important, but the effect of that correction depends on the type of violation. For a qualifying minor violation, correcting the violation within the grace period may prevent a penalty entirely. If the grace period is missed — or if the violation is non-minor — correction may stop additional exposure, but it does not necessarily eliminate the penalty for the violation that already occurred. Visit our NJDEP Enforcement Insights page for additional guidance, updates, and resources.

October 27, 2026

Intellectual Property

“Where Dreams Go to Die”: What a Satirical Baseball Video Teaches About Fair Use

In Cooperstown Properties, LLC v. Duffield, No. 6:25-cv-1079 (N.D.N.Y. Sept. 30, 2026), a New York federal judge dismissed the federal copyright, trademark, and unfair competition claims that a youth baseball facility brought against a YouTuber who ridiculed it. The 110-second video, titled “Cooperstown, Where 12 Year Olds Dreams Go to Die,” was produced and published by defendant Duffield, who operates the popular YouTube channel “Baseball Doesn’t Exist” and who had no apparent prior association with the plaintiff. The video opened with the registered logo of the plaintiff Dream Parks, a baseball recreational facility, and snippets of its promotional footage. This logo is federally protected with both the United States Patent and Trademark Office as well as the Copyright Office. Then, the video pivoted to sarcastic commentary on the cost, crowded bunkhouses, and poor odds that await career athlete aspirations for talented kids. Dreams Park sued over the use of the logo, two photographs of future major leaguers, and three short video excerpts. The video drew well over two million views on the X platform (formerly known as Twitter) alone. On copyright, the court found fair use at the motion to dismiss stage. This is unusual, as fair use is an affirmative defense that defendants must prove deeper into a suite's lifespan, and courts typically resolve the issue on a fuller, more mature record. Here the video and the originals were before the court, so the defense appeared on the face of the complaint. The court held that the video used the plaintiffs’ works as raw material for criticism and parody, even though the logo and clips were reproduced largely unaltered, and that the defendants’ ad revenue carried little weight. The creative nature of the works tilted slightly against fair use, but the court gave that factor little weight. Copying the entire logo and photos was neutral because a parody must evoke its target. The market factor favored the defendants strongly, since a mocking video does not substitute for a youth baseball tournament, and no licensing market exists for criticism of oneself. The trademark claims fell under Jack Daniel’s v. VIP Products, which limits the Rogers test (a well-established First Amendment protection case for expressive works) to cases where the defendant does not use the mark as a source identifier for its own goods. The court found the video used the marks only to identify the object of its critique, so Rogers applied. The marks were artistically relevant, and the plaintiffs’ confusion allegations were too conclusory to show the use was “explicitly misleading” under the Polaroid factors. Dreams Park’s state-law claims remain pending, but only until it files an affidavit identifying the citizenship of each LLC member so the court can confirm diversity jurisdiction. This case provides some clear takeaways: registrations are strong tools against those who use your marks and materials to sell their own goods, but they offer little protection against a critic, for whom Fair Use remains a powerful shield. Consider reserving enforcement for the first group and answer the second with communications strategy – even if that strategy amounts to no response whatsoever. Sometimes, it’s best not to add oxygen to a fire.

October 26, 2026

Intellectual Property

How to Budget for Trademarks When You’re Not a Trademark Lawyer

Trademark budgeting can be uncomfortable for in-house legal teams. Work arrives irregularly, costs fluctuate, and the business expects predictability. A product launch may require a clearance search, an acquisition may uncover unexpected brand risks, and a routine filing may lead to additional legal work. The challenge is not necessarily a lack of information. It is a lack of a framework for organizing that information into a practical, defensible budget. The good news is that you do not need to become a trademark lawyer to budget effectively. You need to understand what drives the work, distinguish predictable expenses from contingent ones, and establish a process for making informed decisions as circumstances change. Start With Business Priorities, Not Legal Line Items A common budgeting mistake is starting with a list of legal services: searches, applications, renewals, enforcement and international filings. Those categories are useful, but they do not tell you where the business actually needs protection. Start with business priorities. Which brands generate the most revenue? Which products are central to the company's growth strategy? Are there upcoming launches, acquisitions, rebranding initiatives or geographic expansions? A major product launch may justify substantial clearance work and a broader protection strategy. An experimental product with an uncertain future may warrant a more limited initial investment. The difference is not necessarily the legal service. It is the business context. When trademark spending aligns with commercial priorities, it becomes easier to explain and defend the budget. The goal is not to protect every brand equally. It is to allocate resources bases on business value, risk and strategic importance. Separate Baseline Spending from Contingent Spending One of the simplest ways to improve trademark budgeting is to divide anticipated expenses into two categories. Baseline spending includes recurring expenses that can generally be forecast in advance: Trademark renewals and maintenance filings Routine portfolio reviews and monitoring Ongoing prosecution of existing applications Regular portfolio administration Contingent spending depends on business decisions, third-party conduct or unexpected developments: Clearance searches for new brands Filings associated with international expansion Unexpected Office Actions Enforcement investigations and disputes Trademark diligence for acquisitions Some contingent expenses are foreseeable even if their exact costs are uncertain. For example, a planned acquisition creates an anticipated need for trademark diligence. Others, such as a cease-and-desist letter from a competitor, may be genuinely unexpected. Separating these categories helps prevent every variance from the original forecast from being treated as a budgeting failure. Baseline spending can remain relatively stable while contingent expenses fluctuate with business activity and market conditions. Use Ranges Rather Than False Precision Finance teams need numbers for planning, but trademark work does not always lend itself to precise forecasting. A clearance search may uncover no meaningful concerns, allowing a straightforward filing. The same search may reveal conflicting marks that require further investigation or a change in branding strategy. An application may proceed smoothly or require a substantive response to an examiner's refusal. Rather than predicting an exact cost for every possible outcome, use reasonable ranges tied to identifiable assumptions and business triggers. A practical forecast might distinguish among: Expected spend: Routine maintenance and known prosecution work. Planned variable spend: Searches and filings associated with anticipated launches or expansion. Contingent spend: Potential enforcement matters, unexpected prosecution issues and transaction-related diligence. Where useful, assign low, expected, and high estimates to each category. Base those estimates on the company's portfolio, geographic footprint, outside counsel arrangements and historical experience. Connect the ranges to specific events, such as launching a new product, entering another country, or completing an acquisition. That creates a more useful forecast than simply assuming the coming year will resemble the last. Build in Decision Points, Not Assumptions Trademark matters often involve decisions that cannot be made responsibly until additional information becomes available. An Office Action may require a response, but the company might also consider a different filing strategy or reconsider the mark. A potentially conflicting trademark may warrant further investigation without necessarily justifying enforcement. A budget should anticipate these possibilities without assuming that every step will be taken. Consider establishing approval thresholds for significant contingent expenses. Outside counsel might be authorized to conduct an initial assessment within an agreed budget, with additional work requiring approval once the findings and options are presented. This approach allows the company to investigate potential problems promptly without committing prematurely to a costly course of action. It also helps ensure spending decisions reflect the brand's business importance, the available alternatives, and the likely cost of proceeding—not simply the fact that money has already been spent. Communicate the Why, Not Just the What A well-constructed budget is easier to defend when business leaders understand why trademark spending fluctuates. Instead of reporting only that clearance work exceeded expectations, explain what the search uncovered, why it matters, and what decision the business now faces. Instead of describing enforcement as an unplanned legal expense, explain the potential commercial consequences of the third party's conduct and the options for addressing it. This communication works in both directions. When business leaders understand the relationship between timing and trademark costs, they are more likely to involve legal early—before investing heavily in product development, packaging and marketing. In-house counsel are particularly well positioned to make these connections because they understand both the legal considerations and the company's commercial priorities. A useful budget discussion does more than explain past spending. It helps the business anticipate which upcoming decisions may affect future costs. Trademark Budgeting Is Risk Management Trademark budgeting is not about predicting every expense or controlling every dollar. It is about giving the business enough visibility and flexibility to make informed decisions before time pressure limits its options. Start with business priorities. Separate recurring expenses from contingent work. Use ranges where precision is unrealistic. Establish decision points before significant additional spending occurs. Communicate how trademark work supports the company's commercial objectives. You do not need to forecast every trademark issue accurately. You need a process that helps the business anticipate important risks, understand its options, and allocate resources accordingly. The best trademark budget is not the one with the fewest surprises. It is the one that allows the company to respond to surprises without being forced into decisions it would rather have made earlier.

October 23, 2026

Real Estate

LLCs vs. LLPs: Understanding the Differences, Liability Protection, and Importance of Proper Planning

One of the most important decisions facing real estate investors, developers, and business owners is how to structure ownership of their assets and operations. The choice of business entity can have significant consequences for personal liability, taxation, management, asset protection, and the ability to transfer ownership interests. Two commonly used business structures are the limited liability company (LLC) and the limited liability partnership (LLP). Although both provide important liability protections and considerable flexibility, they were developed for different purposes and have distinct legal characteristics. This edition of This Month in Real Estate examines the history of LLCs and LLPs, their similarities and differences, the protections they provide, and the importance of properly drafted operating and partnership agreements. The Evolution of the Limited Liability Partnership Historically, individuals conducting business through a general partnership faced substantial personal liability. Generally, partners could be held personally responsible for partnership obligations, including liabilities arising from the actions of other partners. The LLP emerged as a means of addressing this exposure. Texas enacted the first LLP statute in 1991, primarily to protect partners in professional firms, particularly law and accounting firms, from personal liability arising from the negligence of other partners. Other jurisdictions quickly followed. Delaware adopted LLP legislation in 1993, expanding the protections available to partners. During the following years, states increasingly adopted broader liability shields covering both tort and contractual obligations. Today, LLP statutes generally protect partners from personal liability for partnership obligations solely because of their status as partners. However, those protections do not necessarily insulate partners from liability arising from their own misconduct or obligations they personally assume. The Development of the Limited Liability Company The LLC developed along a different path. Wyoming enacted the first LLC statute in 1977, followed by Florida in 1982. The objective was to combine two characteristics that historically had been difficult to obtain within a single business structure: the limited liability associated with corporations and the federal income tax treatment generally available to partnerships. Initially, uncertainty concerning federal tax classification discouraged widespread use of LLCs. That uncertainty was substantially reduced in 1988, when the Internal Revenue Service issued Revenue Ruling 88-76, recognizing that an appropriately structured LLC could qualify for partnership taxation notwithstanding the limited liability afforded to its members. By 1996, all 50 states and the District of Columbia had enacted LLC statutes. Another significant development occurred in 1997, when the federal check-the-box regulations became effective. These regulations simplified federal tax classification and generally permitted multi-member LLCs to be treated as partnerships and single-member LLCs to be treated as disregarded entities, unless an available alternative classification was elected. These developments helped establish the LLC as one of the most widely used business structures in the United States. LLCs and LLPs: Understanding the Differences Although LLCs and LLPs share several characteristics, there are important distinctions. Ownership An LLC may have one member or multiple members. An LLP generally requires at least two partners. For real estate investors, this is particularly important. This allows an individual or entity to hold property through a separate legal entity without requiring an additional owner. Legal Status Both structures are recognized under applicable law and may own real estate, enter contracts, incur obligations, and conduct business in their own names. Management An LLP is generally managed by its partners, subject to its partnership agreement. An LLC may be managed by its members or by designated managers, providing greater flexibility in separating ownership from day-to-day management. Formation An LLC is formed through the filing of a certificate of formation or comparable organizational document. An LLP generally obtains its limited liability status by filing a statement of qualification or registration under applicable state law. Taxation LLPs generally are taxed as partnerships for federal income tax purposes. Multi-member LLCs also are taxed as partnerships by default, while single-member LLCs generally are disregarded as separate entities from their owners for federal income tax purposes. Unlike LLPs, LLCs may have a single owner and may elect to be taxed as corporations, including S corporations if applicable eligibility requirements are satisfied. Business Activities LLCs generally may engage in any lawful business activity, subject to applicable restrictions. Some jurisdictions restrict the types of businesses that may operate as LLPs. The Liability Shield: What Does It Actually Protect? Perhaps the most important feature of both LLCs and LLPs is the statutory liability shield. Under Section 18-303(a) of the Delaware Limited Liability Company Act, the debts, obligations, and liabilities of an LLC, whether arising in contract, tort, or otherwise, are generally obligations of the company itself. A member or manager is not personally liable for those obligations solely because of being a member or acting as a manager. Similarly, Section 15-306(c) of the Delaware Revised Uniform Partnership Act generally provides that obligations arising while a partnership has LLP status are obligations of the partnership, and partners are not personally liable solely because of their status as partners. These protections are particularly important in real estate transactions. For example, an investor who acquires commercial property through an LLC may be able to separate liabilities associated with that property from the investor's personal assets. However, limited liability does not mean the complete elimination of personal exposure. Members, managers, and partners may remain personally liable for their own wrongful conduct, personal guarantees, or other obligations they expressly undertake. Under appropriate circumstances, courts may also impose liability under applicable veil-piercing or related legal doctrines. Delaware law expressly recognizes that an LLC member or manager may agree to personal liability under Section 18-303(b). Section 15-306(e) provides a corresponding rule for LLP partners. Importantly, the liability shield protects the owners from certain obligations of the entity. It does not protect the entity's own assets from claims against the entity. Accordingly, appropriate liability insurance remains an essential component of an effective asset-protection strategy. Asset Protection Beyond the Liability Shield LLCs and LLPs may provide additional protections beyond shielding owners from entity liabilities. Three concepts are particularly important: liability shields, pick-your-partner protections, and charging orders. Liability Shields - Liability shield provisions generally protect members and partners from personal responsibility for obligations incurred by their LLC or LLP solely because of their ownership status. As discussed above, these protections do not eliminate liability arising independently from personal misconduct, guarantees, or other legally recognized grounds. Pick-Your-Partner Protections - Pick-your-partner provisions generally protect the ability of members and partners to control who participates in management of the business. For example, if a member of a multi-member LLC incurs a personal judgment, the judgment creditor does not automatically become a member with the right to participate in management or make business decisions. This protection can be especially important in real estate ventures involving multiple investors who have agreed to conduct business together. Charging Order Protections - Charging-order provisions address the rights of a judgment creditor seeking to satisfy a personal judgment against an LLC member or partnership partner. Delaware provides particularly significant statutory protection in this area. Under 6 Del. C. § 18-703, a charging order is the exclusive remedy by which a judgment creditor may satisfy a judgment from a debtor's Delaware LLC interest. The statute expressly applies to both single-member and multi-member LLCs. Similarly, 6 Del. C. § 15-504 provides that a charging order is the exclusive remedy by which a judgment creditor may satisfy a judgment from a partner's economic interest in a Delaware partnership. Generally, the creditor is limited to distributions that otherwise would have been payable to the judgment debtor. The charging order does not, by itself, confer management rights or ownership of the entity's underlying property. These protections can be particularly important where several investors own real estate through a common entity and one investor experiences personal financial difficulties unrelated to the property. However, charging-order protections should not be confused with immunity from creditors. Their application depends on the nature of the claim, the entity, and the governing law. Delaware's Emphasis on Freedom of Contract One of the defining characteristics of Delaware's LLC statute is its emphasis on freedom of contract. Section 18-1101(b) of the Delaware Limited Liability Company Act expressly establishes a policy of giving maximum effect to freedom of contract and the enforceability of LLC agreements. This allows members considerable flexibility to establish their respective economic rights, management responsibilities, voting arrangements, and obligations through the operating agreement. Delaware law also permits substantial modification of fiduciary duties. Under Section 18-1101(c), an LLC agreement may expand, restrict, or eliminate fiduciary duties that otherwise would apply to members, managers, or other covered persons. However, an LLC agreement may not eliminate the implied contractual covenant of good faith and fair dealing. Section 18-1101(e) also permits substantial contractual limitation or elimination of liability for breaches of contract and duties, subject to the statutory exception concerning bad-faith violations of the implied contractual covenant. These provisions underscore the importance of carefully drafting the operating agreement. The parties' contractual arrangements may substantially determine their rights, duties, and remedies. Although LLPs also provide considerable contractual flexibility, the governing partnership statute and applicable limitations must be considered separately. The Importance of Operating and Partnership Agreements Forming an LLC or registering an LLP is only the beginning. The operating agreement or partnership agreement establishes the framework through which the entity will conduct business and governs the relationships among its owners. For real estate entities, particularly those with multiple investors, a properly drafted agreement should address at least ten important issues. Identification of Members or Partners - The agreement should identify the owners, their respective interests, and whether they hold those interests individually or through other entities or trusts. Purpose and Nature of the Business - The agreement should describe the nature of the business, including any contemplated real estate acquisitions, development, leasing, management, or investment activities. Capital Contributions and Economic Rights - The agreement should address initial and additional capital contributions, allocations of profits and losses, distributions, and the consequences of failing to make required contributions. Transfers of Ownership Interests - The agreement should establish restrictions on transfers, the admission of new members or partners, and the treatment of transfers resulting from death, bankruptcy, or other circumstances. Withdrawal and Dissociation - The agreement should specify the circumstances under which an owner may withdraw or cease participating in the entity and the economic and management consequences of that event. Management and Decision–Making - The agreement should establish who has authority to manage the entity, execute contracts, borrow money, acquire or sell real estate, and make other significant business decisions. Fiduciary Duties - The agreement should address the duties owed among owners and to the entity, including any modifications permitted by applicable law. Dissolution and Winding Up - The agreement should establish the events triggering dissolution and the procedures for liquidating assets, paying liabilities, and distributing remaining proceeds. Amendments and Other Contractual Provisions - The agreement should contain appropriate provisions concerning amendments, interpretation, notices, and the integration of the parties' agreement. Dispute Resolution - The agreement should establish procedures for resolving disputes, including the appropriate forum and any agreed mediation, arbitration, or judicial remedies. These issues are not merely theoretical. Consider an LLC formed by three investors to acquire and develop commercial property. What happens if the project requires additional capital and one investor refuses to contribute? Can two members approve a sale over the objection of the third? What happens if a member dies, becomes disabled, or files for bankruptcy? Without a carefully drafted operating agreement, the answers may depend on statutory default provisions that do not reflect the parties' intentions. Choosing the Appropriate Entity There is no single entity structure appropriate for every real estate transaction. An individual purchasing a rental property may have different needs from a group of investors developing a commercial project. A family-owned real estate holding company may require different management and succession provisions from a professional services partnership. The analysis should consider liability protection, ownership structure, management flexibility, federal and state taxation, financing requirements, transfer restrictions, succession planning, and administrative costs. Equally important is the distinction between forming an entity and properly operating it. An LLC or LLP should be maintained in accordance with applicable law, its governing agreement, and the legitimate separation between the entity and its owners. Final Thoughts LLCs and LLPs have fundamentally changed the way individuals and businesses structure ownership and manage liability. Both offer important advantages, but neither should be viewed as a complete solution to every potential legal or financial risk. For real estate investors, developers, and business owners, the objective is not simply to form an entity. It is to establish a legal structure that protects legitimate interests, clearly defines the rights and responsibilities of the owners, and provides a workable framework for operating, financing, transferring, and ultimately disposing of real estate. The effectiveness of an LLC or LLP depends not only on the statutory protections available, but also on the care taken in structuring, documenting, and operating the entity.

October 23, 2026

Estates and Trusts

The Trust Trap: The Risks of Naming One Child Trustee

It appears to be the responsible choice. Encouraged by their adult children to plan ahead, parents agree to establish a revocable trust and name one child to serve as trustee after they are gone, perhaps: the child who lives closest, the one who works in finance, or, in many families, simply the eldest. Estate planning lawyers have heard the reasoning many times from across a conference table: "With one person in charge, there won't be probate or conflict." Unfortunately, the reality is much more complicated and new research suggests that naming only one child as trustee is one of the most reliable ways to land a family in court. For those of us in the sandwich generation, this is not an abstract concern. You may already be the child who manages your parents' bills and accompanies them to medical appointments, which may make you the one they are considering putting in charge. Alternatively, you may be the sibling on the sidelines, watching a brother or sister handle everything while declining every offer of help. In either case, it is worth understanding what the data shows before your family learns it the hard way, in the midst of grief. Three law professors, David Horton of UC Davis, Reid Kress Weisbord of Rutgers, and Christopher (CJ) Ryan of Indiana University's Maurer School of Law, have produced what they describe as the first empirical study of trust litigation. Their article, "Trust Litigation," was recently published in the Washington University Law Review.1 Until then, there has been little data on trusts and even less on trust disputes. Last wills and testaments (“wills”) pass through probate court, which makes will contests part of the public record and relatively easy to study. Trusts are different; they're designed to bypass probate, so the documents remain private. When a trust does end up in litigation, more than one court may have jurisdiction, which means most of the conflict happens out of public view. To address that, the authors combed through thousands of civil filings in San Francisco Superior Court and identified every contested trust proceeding filed between 2014 and 2020: 640 cases in all, and what the authors found was striking. The conflicts were rarely about the trusts themselves. Instead, each of the conflicts had one thing in common: the person in charge, the trustee.  When most envision a fight over an inheritance, we picture a disputed will, a deathbed change in a hospital room, a much younger new partner named as the main beneficiary, or a question of whether an elderly parent was of sound mind at the time of signing. That's not what the researchers found. Roughly three-quarters of the lawsuits grew out of how the trust was administered after the parent died. The irony is that this is the very feature that makes living trusts attractive. A successor trustee can manage the family's assets for years after death, without probate. But years of only one person having the power to make unilateral decisions about shared money and legacy can also create years of opportunity for resentment, suspicion, and conflict. The finding that has drawn the most attention is that nearly a quarter of the disputes involved one child or grandchild suing another who served as both a beneficiary and the trustee. Most of those petitioners were siblings, whether by blood or by marriage. Consider what that arrangement creates: two siblings are meant to be equals under the trust, yet one of them, trustee, controls the finances. That trustee may determine when distributions are made, whether and when the family home is sold, and who may rent it. In one case reported by CNBC,2 siblings went to court over whether the trustee brother had the authority to take on a tenant. Ryan observed that granting one child this degree of discretion can exacerbate a long-standing perception that a parent favored one child over another. Neither the trust instrument nor the appointment of one trustee creates the rivalry. Instead, it provided the rivalry a legal framework and built-in an imbalance of power. Anyone in the sandwich generation who has shared caregiving responsibilities with a sibling will recognize this dynamic. The sibling who provided the most hands-on care may feel entitled to make decisions, while the sibling who lived farther away may feel excluded. These tensions do not end at death. More often, this is where the tension grows, without the guardrail or the conscience of the parent standing watch and putting a stop to it. None of this suggests that one child should never be named sole trustee. It does suggest that the decision deserves more careful consideration than it typically receives, and that certain questions are worth raising with your parents and their estate planning attorney while everyone is still able to discuss them. The first is whether one child truly needs to serve alone. Families can instead appoint co-trustees, a neutral professional or corporate trustee, or a family member working alongside a professional. Each option involves trade-offs: co-trustees may reach an impasse, and professional trustees charge fees. A related question is how much discretion the trustee actually requires. When the trust sets out clear terms governing when and how assets are distributed, there is less opportunity for one sibling's judgment to be perceived as favoritism. Transparency matters: regular, detailed accountings provided to all beneficiaries address suspicion before it develops into litigation. The same is true for communication from the parents, who should share their thought process in creating the trust. A candid family conversation, or a letter explaining why a particular child was chosen, can soften a decision that might otherwise be perceived as a slight. Finally, families should consider how disagreements will be resolved. Some trusts require mediation before any beneficiary may file suit. No-contest clauses, which penalize beneficiaries who challenge the trust, are another option (although the effectiveness of these clauses vary from state to state). If you happen to be the child named as sole trustee, two things are most important. First, you should maintain meticulous records of all transactions made in your capacity as trustee, and second, communicate with your siblings and the trust beneficiaries early and often. A lack of communication and transparency only leads to mistrust and confusion. This study demonstrates that establishing a trust alone cannot eliminate the risk of disputes and litigation. The allocation and exercise of authority by a trustee are as significant as the terms of the governing document. 1 David Horton, Reid K. Weisbord & Christopher Ryan, "Trust Litigation", 104 Wash. U. L. Rev. 2 CNBC, "New study reveals the estate-planning choices that are likely to pit heirs against each other", Sept. 25, 2026

October 22, 2026

Estates and Trusts

When Family, Assets, and Inheritance Laws Cross Borders

Estate planning rarely fails because a family lacks a story. It fails because the documents do not account for how complicated that story has become. Families immigrate. Children live across states and countries. Real estate is held through entities. Family businesses grow. Cultural expectations endure, even when the governing law has changed. At death, those threads do not untangle themselves. They meet in probate court, trust litigation, or the uncomfortable space in between. Cross-jurisdictional planning is no longer an exotic concern. A client may live in California, own property elsewhere, hold interests in a family company, have relatives abroad, and still assume one domestic trust will quietly solve every problem. Sometimes it will. Sometimes it will not. The difference is whether the plan was drafted with the family’s full legal geography in mind. The Maryland dispute in Ahmad v. Ahmad, No. 634, September Term 2020, 2021 WL 6133796 (Md. Ct. Spec. App. Dec. 27, 2021) (unreported), illustrates the risk. Mehdi Ahmad emigrated from Iran to the United States, built family businesses in Maryland, and later funded a revocable trust with his business interests. The trust “specifically excluded” his eldest child, M. Abraham Ahmad, from serving as trustee or beneficiary. After Mehdi’s death, Abraham sued to have the trust declared invalid and the estate administered under the fixed inheritance provisions of the Iranian Civil Code. The Court of Special Appeals affirmed summary judgment against him. The case is not just about Iran, Maryland, or one family. It is about the collision between private expectations and public legal systems. A parent’s sense of fairness may be shaped by culture or family history. A child’s sense of entitlement may be shaped by the same forces. But a U.S. court starts elsewhere: with the documents, statutes, governing law, deadlines, and public policy of the forum. Abraham argued that Iranian law gave him an “indefeasible fixed portion” of Mehdi’s estate that “automatically vested at his birth.” The appellate court rejected the challenge on limitations grounds and made clear that foreign law has limits when it would impair the forum’s strong public policy. The court put it plainly: “To disregard Mehdi’s choice as expressed in his will in favor of applying Iranian primogeniture law to Mehdi’s estate would be contrary to Maryland public policy.” That sentence carries the planning lesson. Foreign-law expectations may influence family dynamics, but they do not automatically override a valid U.S. estate plan. If a client’s life crosses borders, the plan should say so. It should identify the governing law, coordinate the disposition of assets, address business ownership and control, and anticipate the legal or cultural framework a disappointed beneficiary may later invoke. Silence is rarely neutral. In estate planning, silence often becomes an invitation. This matters most where families own businesses, investment real estate, or assets in multiple jurisdictions. A trust may say who receives an ownership interest. But entity documents, title, management rights, buy-sell provisions, tax rules, and local probate procedures may determine whether that transfer is smooth or explosive. These problems are not limited to ultra-high-net-worth families. A blended family with property in two states, first-generation parents with relatives abroad, a business owner whose children disagree about succession, or an oral promise made around a kitchen table can all create the same problem. The question is not whether the family is international enough. The question is whether the plan reflects the jurisdictions, relationships, and expectations that actually exist. Clear drafting is the first defense. Wills, trusts, beneficiary designations, powers of attorney, and entity documents should speak to one another. They should identify the intended governing law, define beneficiaries and exclusions with care, and avoid language that leaves room for competing inheritance theories to take root. Communication matters, too. Not every family meeting prevents a lawsuit. But where expectations are likely to collide, a thoughtful letter of intent, a documented planning file, or a deliberate fiduciary choice may keep surprise from becoming litigation. Deadlines also matter. Cross-border disputes may sound grand and philosophical, but probate and trust litigation often turns on something far less dramatic: whether a claim was filed on time. A better approach is to build the plan around the actual family, not a simplified version of it. Where are the assets? Where do beneficiaries live? What law may apply? Who can realistically serve as fiduciary? How will business control pass? Do foreign documents exist? Are there inheritance expectations that may later be asserted? These are not side questions. They are the architecture of the plan. The Ahmad dispute is a reminder that planning across borders should not be left to assumptions. A favorable ruling after litigation is not the same as a well-designed plan before conflict. The goal is not merely to win the fight. It is to avoid making the fight necessary. When family, assets, and inheritance laws cross borders, an estate plan should do more than distribute property. It should translate intent across legal systems, narrow the gap between what the client meant and what a court may later be asked to decide, and make clear which law governs the legacy being left behind. If your family, assets, or business interests cross state or national borders, an estates and trust attorney can help evaluate whether your estate plan is prepared for the jurisdictions, relationships, and expectations it may one day need to withstand.

October 21, 2026

Estates and Trusts

Click & Claim: How Executors Navigate Unclaimed Property Refunds in Virginia

The Faithful Fiduciary In America, when a person dies, a life’s entire business gets taken over by what the law calls “a fiduciary.”  The legal term itself, roots from the Latin, “fides”,1 meaning trustworthiness, loyalty, reliability, faithfulness. It is a tremendous honor to be selected as an executor by another person. Think of it— the testatrix has adjudged you worthy of her trust, to properly administer her wishes and her estate. There are different types of fiduciaries when a person passes, depending on how organized they were in their pre-death planning. If your loved one executed a Will, the fiduciary is called “executor.”  If they had a trust, you may be “trustee” for private-inheritance administration (and executor only as a back-up role, if some assets are discovered that never quite made it into the trust.) In the event your loved one did no estate planning at all, then you may serve as “administrator” of the intestate estate, or the more generalized term, “personal representative.”  Regardless of what species of fiduciary you are, someone will have to be given court authority to manage the funds/lands. A Life’s Bounty But what all these trusted people, however denominated, have in common is that they are NOT the decedent. And stepping into another person’s shoes, in order to organize the decedent’s affairs (marshaling assets, paying off creditors, distributing gifts) can seem overwhelming to the average person. This is natural. It’s like inheriting an entire household of new duties, bills, and assets; none of which you had any visibility-on prior to the passing. Certain fiduciaries, as with executors in Virginia, have to prepare and file an Inventory and Accounting for all that they discover in their due diligence inspection period.2  Yes, the executor has a lot of work to do. In the Commonwealth of Virginia, a probate, while mostly administrative, is overseen by the thirty-one Circuit Courts, through their appointed Commissioners of Accounts. Commissioners receive the Estate Inventories and Accountings, as required by law, and can convene hearings regarding the estate. Commissioners not only receive the executor’s filings, but also audit the estate management duties you will perform as a fiduciary. It is the compliance-work of a watchful society. If you are assuming such a fiduciary role, which requires from you a formalized curiosity (your ‘due diligence’), you will have to investigate and uncover the decedent’s assets, and determine their value, as of the date of death. Later, as the process winds on, you will also have to capture any “change” in that value, since your executor-work may include selling a home, cashing out stocks, or selling jewelry — all subject to market fluctuations. For example, the price of precious metals, like gold, can change day-to-day, and certain stocks can rise or dip with the overall economy. The discovery of a loved one’s assets may be hard at first, given your understandable grief, and it may be nerve-wracking, as more assets come to light and more information trickles in. The good news is that, in Virginia, you have four full months, from the date of your Court Qualification, to get a list — or inventory — of the decedent’s assets filed. And if more assets come to your attention thereafter? No problem; you can update the Commissioner by filing an amended inventory. Coins in the Couch: The Due Diligence Paradox Some Circuits, when you are qualified by the Court and with the help of the Commissioner of Accounts, may instruct you to check “unclaimed property” as part of your initial due diligence/asset discovery work. This is a searchable database, where the executor (once qualified by the court) can input the decedent’s name, and discover if they were owed any refunded money. Generally, Unclaimed Property may include items such as small refunds from banks, utility companies, or taxing authorities owed to the decedent, which were never cashed by the decedent. Naturally, this can happen due to frequent moves, a long hospitalization or deterioration in physical capacity prior to death, or they may simply be ‘lost in the mail’ checks that never found their way to the loved one, during their lifetime. The Virginia Department of Treasury oversees this unclaimed property program for executors and its database is jauntily called “vaMoneySearch.gov” and rightly aims to reunite the estate “with lost or misplaced bank accounts, wages, stocks, dividends, utility deposits, insurance benefits, safe deposit box contents and more.”3 Just last year, House Bill 1606, which was passed into law effective spring of 2025, creates a streamlined process allowing, Virginia Treasury to automatically mail checks (totaling up to $5,000) to citizens who are owed refunds.4 This is a terrific benefit for most people, but unfortunately, and understandably, the formalized, and methodical ‘opt-in’ claims process is still required for estates.  This makes perfect sense. To prevent fraud or scams, it is entirely reasonable for the state to require strict proof that you’ve got legal authority by court qualification, to access the funds which are due and owing to your deceased loved one. In a probate context, the rightful owner of the unclaimed property is the estate through its executor/administrator. When you search, you may ask yourself, is it worth the time to lay claim to a potentially small amount of money owed to the estate?  That is a fair question. The cost/benefit analysis may come out wanting, but if you’ve been instructed to perform the search as part of your duties, and if the heirs/beneficiaries are entitled to these assets, you may rightly consider it your fiduciary duty to make the claim. The website is user-friendly and fast, so a quick search shouldn’t take too much time. Furthermore, if there are several refunds in the system, they can accumulate to more than you might expect. Click and Claim: Escheatment & The Unclaimed Property Process Escheatment is a legal term describing the turning over of abandoned accounts or real estate to the Commonwealth, after a diligent search by the Escheator for the rightful owner proves inconclusive or unavailing. Bank account funds are determined “abandoned” by the owner of the account if there is no action at all on it; and in Virginia, banks observe a five-year dormancy rule.5 Interestingly, contents of a safety deposit box are deemed abandoned as measured from the end of the box lease-term, plus those five years.6 So a decedent’s safe deposit box may outlive escheatment, depending on her particular bank’s terms of service. This can happen more than you would think, given frequent moves, deployments, hospital stays, residential-care changes, or even just chronic illness, over time. Naturally, your appointment as a fiduciary will preempt any such abandonment procedures, which is why it is important to timely register your loved one’s Will with the Probate Office. If the bank cannot find the rightful owner, they are authorized to submit the funds to the Virginia Treasury as unclaimed property, so the Commonwealth can update its “Click and Claim” database for a wider audience. The submitter bank or taxing authority reports all that they know about the previous customer, such as their name, previous address, and Social Security number. An executor should expect to see the decedent’s name listed in various ways (i.e., with or without the middle initial or middle name, sometimes by nicknames, maiden-names, or other variations) all dependent on how the account was initially established. So try various versions of your loved one’s name. Once the fiduciary has checked  Unclaimed Property and discovered funds being held by The Commonwealth, you must supply proof of your court qualification and the decedent’s death certificate, to prove you have legal authority to make the claim, and receive the funds in the name of the estate. Given your duties to inventory and account, you’ll want to keep copies of your claim request form, so that you can itemize the small amounts on your accounting to the Commissioner of Accounts, later, since The Treasury Department will issue one, aggregated check to the estate, reflecting the total amount claimed. Conclusion While it could seem like a trifling matter, and not worth the effort when you are battling the grief of loss, unclaimed property due diligence is still a part of your work as a faithful fiduciary. As time passes from the funeral, and you begin your fiduciary duties in earnest, consider it necessary work to do right by your loved one and her heirs. Particularly when your Circuit Court or Commissioner instructs you to search this database, and where the escheated funds may aggregate to a healthy refund, executors should take the Commonwealth at her invitation to “click and claim.”  Part of your task in the process of probate is to ensure the heirs/ beneficiaries receive the full bounty of the decedent’s estate.   And coins in the couch are still legal tender. 1 The United State Marine Corps routinely barks their motto “Semper Fi” meaning “always faithful” deriving from this same base-word fides. 2 While Trust-Administration is less public than a Court-overseen, or Commissioner-managed Probate Process, a Trustee still has duties to the Beneficiaries, and it may include duties to inventory and account for all Trust Assets. 3 Unclaimed Property Homepage 4 See: The Virginia Code §55.1-2532(A) 5 See: The Virginia Code §55.1-2503 6 See: The Virginia Code §55.1-2506

October 21, 2026

NJDEP Enforcement Insight

NJDEP Issued Your Company a Penalty. Can You Negotiate It?

NJDEP civil administrative penalties are often negotiable, but not in the sense that most businesses expect. Most NJDEP regulatory programs have their own rules governing civil administrative penalties. Those rules may establish penalty amounts, ranges, matrices, multipliers, or adjustment factors based on the nature of the violation and the circumstances surrounding it. For a company seeking to reduce an NJDEP penalty, the starting point should therefore be the applicable penalty framework — not simply an across-the-board request for a lower number. Understand How NJDEP Calculated the Penalty The first step is to identify the regulations governing the penalty assessment. Depending on the NJDEP program, the penalty may be based on a specified amount for the particular violation or may be calculated using factors such as the seriousness of the violation, the conduct of the violator, prior violations, duration, or other circumstances. Some programs also expressly allow NJDEP to adjust penalties based on mitigating or aggravating factors. For example, NJDEP’s solid waste utility regulations permit penalty adjustments based on compliance history, mitigation, measures taken to prevent recurrence, environmental or public impacts, and other circumstances. The specific program therefore matters. Before negotiating, a company should understand the factors NJDEP relied upon, whether those factors were applied correctly, and whether the available facts support NJDEP’s conclusions. Negotiate Within the Penalty Framework Penalty negotiations are generally more productive when they address NJDEP’s calculation directly. If NJDEP treated a violation as particularly serious, the company should evaluate the factual basis for that conclusion. If prior compliance history increased the penalty, the company should confirm that the cited history is accurate and applicable. If NJDEP’s calculation assumes a continuing violation, the company should determine whether the duration is correct. Mitigating circumstances may also matter. Prompt corrective action, measures taken to reduce environmental impacts, steps designed to prevent recurrence, and other circumstances may provide a basis for seeking a reduction where the applicable regulatory framework allows NJDEP to consider those factors. The objective is not simply to argue that the penalty is too high. It is to identify why the penalty should be different under the rules NJDEP itself uses to calculate it. Preserve Your Rights While Negotiating Companies should not assume that engaging in settlement discussions extends the deadline for contesting a penalty. Where NJDEP has issued an AONOCAPA or other appealable penalty assessment, the company should review the applicable hearing deadline and preserve its administrative hearing rights while settlement discussions proceed. NJDEP’s hearing process expressly contemplates settlement discussions and alternative dispute resolution, but those discussions do not eliminate the need to comply with applicable procedural requirements. Failure to preserve those rights can result in waiver of objections to the penalty assessment and, depending on the enforcement document, the underlying violations or corrective requirements. Visit our NJDEP Enforcement Insights page for additional guidance, updates, and resources.

October 20, 2026

Estates and Trusts

The Estate Planning Graveyard: Four Estate Planning Monsters Lurking This Halloween and How to Defeat Them

There is howling in the distance. The light of a full moon cuts through the fog. Suddenly, a blood-curdling scream cuts through the night! Estate plans are designed with the best of intentions. Over time, however, even a well-drafted trust can transform into something unexpected, something…monstrous! This Halloween, four of the most terrifying estate planning creatures lurk in the shadows, waiting to ensnare an unsuspecting client. The Frankenstein's Monster Trust Like Frankenstein's monster, this trust is assembled piece by piece from unrelated parts. The trust is amended repeatedly, adding and removing clauses, changing fiduciaries, and beneficiaries. What may have been beautiful at first has been patched together into something truly horrifying.  A marital trust is established under article five, but article three makes a distribution outright to the spouse. The trust protector referenced in article nine does not appear anywhere else in the document.  One provision assumes a corporate trustee while another contemplates an individual trustee. If we ever face this monster, we can stop it dead in its tracks. Rather than continuing to tack on amendment after amendment, we can restate the trust in its entirety so that all the provisions work together toward achieving the client’s goals. The Ghost Trust The Ghost Trust sits eerily quiet in a safe. The client sleeps soundly at night, comforted with the peace of mind that their loved ones are provided for and their assets are protected. Then, one night, a spine-tingling chill creeps up their spine; was the trust ever actually funded? The client is in a state of shock. The bank accounts remain in their individual name. The deed to their home remains unchanged from when they first purchased the property. Business interests were never assigned to the trust. The trust technically exists, but only barely. Proper funding can bring this trust back from the dead and end this nightmare. Assets should have been transferred into the trust when it was first established, but it is never too late to fund a trust. As new assets are acquired, they too may need to be transferred to the trust to ensure the client’s estate plan will function as intended. The Zombie Trust The Zombie Trust is not necessarily bad. In fact, many Zombie Trusts were thoughtfully designed when they were created. But as years pass, what was once beneficial can atrophy and warp. The trust was drafted years ago when the grantor's children were minors. Today, those children have their own families. Perhaps the trust was drafted when the federal estate tax exemption amount was a fraction of its current value. Perhaps the client established an irrevocable dynastic trust. This may have been sensible when their business was worth millions of dollars. Now, several of those business ventures have failed, and the client would find themselves in a dramatically better position if they could only access those trust assets. Circumstances change. Assets change. Tax laws change. Unfortunately, an outdated estate plan can create more problems than it was meant to solve. We can defeat this monster through regular maintenance and review. Estate plans should be reviewed every few years, as well as whenever there is a significant change in family circumstances, assets, or the tax law, and, if necessary, revised to ensure that the client’s estate plan remains aligned. Oftentimes, even an irrevocable trust can be undone with the assistance of an attorney. The Mummy Trust Wrapped tightly in layer upon layer of legal jargon, the Mummy Trust is perhaps the most intimidating creature in the estate planning graveyard. The client wants every possible contingency addressed. The drafter wants maximum flexibility. Each provision adds another layer of protective wrapping. The trust may contain multiple classes of beneficiaries, numerous distribution standards, trust protectors, advisory committees, removal provisions, appointment powers, decanting provisions, tax formulas, and administrative procedures. By the time the document is complete, it has become nearly impossible to navigate, even by an experienced fiduciary. The trust will be burdensome and complex to administer. Meanwhile, the trust's assets may only consist of a residence, several bank accounts, and a modest investment portfolio. Complexity has its place. Large estates, blended families, special needs planning, asset protection objectives, and sophisticated tax planning may justify highly technical provisions. The Mummy Trust becomes a monster when the document's complexity exceeds the client’s needs and actual circumstances. The Mummy Trust is defeated through simplification. An estate plan should only be as complex as necessary and should avoid provisions that are not required to accomplish the client's goals. A Final Halloween Warning The most frightening estate planning problems rarely arise because someone failed to create an estate plan. More often, they arise because a trust was never funded, never updated, unnecessarily complicated, or patched together over time until its original purpose becomes difficult to recognize. This Halloween, dust off your estate planning documents and take a closer look. You may discover a trust stitched together from mismatched provisions, a trust that owns no assets, a trust that has not been reviewed in decades, or a trust buried in unnecessary complexity. With a thoughtful review and proper maintenance, even the most terrifying Monster Trust can be laid to rest before it comes back to haunt you.

October 20, 2026

Labor and Employment

Could Employers Soon Have More Flexibility in Severance Agreements?

In 2023, the National Labor Relations Board issued its landmark decision in McLaren Macomb, fundamentally changing how employers draft severance agreements. The Board held that employers violate the National Labor Relations Act (NLRA) when they offer severance agreements containing overly broad confidentiality and non-disparagement provisions that could interfere with employees' rights under Section 7 of the Act. The Board further concluded that merely offering such an agreement may constitute an unfair labor practice, even if the employee never signs it. What Did McLaren Macomb Hold? The severance agreements at issue prohibited employees from disclosing the agreement's terms and from making statements that could disparage the employer. The Board found these provisions unlawful because employees could reasonably interpret them as restricting their ability to discuss workplace conditions, communicate with coworkers, cooperate with unions, or participate in NLRB proceedings. Why Nonunion Employers Should Care Although the case arose in a unionized workplace, the NLRA protects most private-sector employees, regardless of union status. As a result, McLaren Macomb affected employers with both unionized and nonunion workforces. Employers across industries revisited severance agreements and added carve-outs, preserving employees' rights to engage in protected concerted activity and communicate with government agencies. The Decision's Reach Extended Beyond Confidentiality and Non-Disparagement Clauses Shortly after the decision, then-General Counsel Jennifer Abruzzo issued guidance explaining that lawful severance agreements remain permissible but warning that McLaren Macomb may also impact other common provisions. The memorandum identified noncompete clauses, no-solicitation provisions, no-poach agreements, overly broad releases of claims, broad covenants not to sue, and certain cooperation requirements as provisions that could potentially interfere with employees' Section 7 rights. The memorandum also emphasized that simple disclaimer language or "savings clauses" would not automatically cure otherwise overbroad restrictions. A Potential Shift on the Horizon The future of McLaren Macomb may be uncertain. In a recent memorandum outlining agency priorities, NLRB General Counsel Crystal Carey identified McLaren Macomb as a decision her office is seeking to have reconsidered and overruled. While that memorandum does not change existing law, it signals a significant policy shift within the agency and raises the possibility that a future Board could restore greater flexibility for employers when drafting severance agreements. The Bottom Line For now, McLaren Macomb remains binding law. Employers should continue to ensure that severance agreements do not contain provisions that could be interpreted as restricting employees' NLRA rights. However, with the current General Counsel actively seeking reversal of the decision, employers should closely monitor developments that could once again reshape the rules governing severance agreements.

October 16, 2026

Commercial Litigation

When the Middleman Disappears: Synapse and the Litigation Risk Hiding in Banking-as-a-Service

In May 2024, a Maryland teacher told a federal bankruptcy court in California that he could not reach his own savings. “I have nearly $38,000 tied up,” he wrote. “This money took years to save up.” His money sat with a crypto app called Juno. Juno ran on technology from Synapse Financial Technologies, a middleware company most customers had never heard of, which had filed for bankruptcy weeks earlier.1  He was not alone. His problem was the predictable failure mode of Banking-as-a-Service, or BaaS. In a typical BaaS program, the customer opens an account in an app that may carry a bank’s name and logo. A fintech company designs the app and runs much of it. The bank holds the deposits and provides the regulated services. A middleware company like Synapse sits between them, connecting systems, processing transactions, and keeping the ledger that says who owns what. For a community or regional bank without the budget to build its own digital platform, the model is attractive. It is also a structure in which no single company sees the whole picture. When the middle layer fails, the bank must ask the question it should have asked from the start. If the provider disappeared tomorrow, could it still determine what it owes each customer?  Synapse’s Collapse Synapse occupied that middle layer. Its technology connected nonbank fintech platforms to partner banks, including Evolve Bank & Trust, and supported account infrastructure, payments, and ledger management. By one industry estimate, as many as 100 fintechs and 10 million end users relied on Synapse.1  The decline was quick. Synapse laid off staff in 2023 and filed for Chapter 11 in April 2024, planning to sell its assets to another fintech. The buyer walked away within weeks.2  Then customers lost access to their money. Synapse’s records could not be reconciled with those of its partner banks. The Consumer Financial Protection Bureau (CFPB) later alleged that Synapse failed to keep adequate records of where consumer funds were and failed to make sure its records matched the banks’. By the CFPB’s account, the banks found that they held between $60 million and $90 million less than the balances in Synapse’s records. Synapse, through its bankruptcy trustee, resolved the CFPB matter by stipulated judgment, without any adjudication of fact or law.3 The Lawsuits That Followed For banks, the more instructive story is the litigation. In November 2024, customers of Yotta, a savings app that offered high-yield accounts through Synapse’s banking partners, and Juno filed a putative class action in Colorado against the four partner banks (Evolve, AMG National Trust Bank, Lineage Bank, and American Bank). They alleged that the banks failed to safeguard customer funds and keep accurate records, and that the banks relied on Synapse to open accounts, process transactions, and manage ledgers. A second putative class action, filed in Tennessee against Evolve and Lineage, accused the banks of negligent monitoring and mismanagement of consumer deposits. That case was transferred to Colorado and consolidated with the first. The banks dispute the allegations.4 Yotta itself sued Evolve in federal court in California, accusing the bank of fraud. The court dismissed Yotta’s complaint because Synapse was a required party, and because Synapse was in bankruptcy, it could not be joined. The court did not decide whether Evolve was liable, and it held that Yotta could refile in state court. Yotta has appealed. The obstacle was federal joinder, not the merits. But the ruling shows how central Synapse was to the dispute — so central that a federal court could not resolve the bank’s liability without it.5 What Banks Will Have to Answer Synapse is an extreme case. The legal questions it raises are not. They arise whenever a bank-branded product depends on companies the bank does not control.  Start with duty. A program agreement can divide responsibilities among the bank, the fintech, and the middleware company. It cannot bind customers who never signed it, and it does not stop regulators or plaintiffs from going straight at the bank. That argument gets stronger when the app the customer used carried the bank’s own name and logo.  These cases will be won or lost based on records. If a bank relied on Synapse’s ledger and that ledger cannot be reconciled with its own, the customer sees one balance in the app, and the bank sees another. Plaintiffs will say the gap proves the bank failed to keep accurate records, failed to oversee its vendor, or failed to account for customer funds. And the bank must defend those claims without the one document it needs most: a reliable record of what each customer was owed.  Contracting out a function does not contract out the regulatory obligation. The 2023 interagency guidance from the Federal Reserve, FDIC, and OCC states that a bank’s use of third parties does not diminish or remove its responsibility to operate safely and soundly and to comply with applicable law. That guidance covers the relationship from planning and due diligence through contract negotiation, ongoing monitoring, and termination. In September 2026, those agencies and the NCUA proposed to rescind it and replace it with a shorter, principles-based document. The proposal states that it establishes no enforceable standards, and that the agencies do not expect banks to eliminate third-party risk. It is not final, and the 2023 guidance remains the operative standard until it is. Nor does the proposal change the underlying statutes, including the Bank Service Company Act, under which services a third party performs for a bank are examined as if the bank performed them itself.6 Expect plaintiffs’ counsel to build discovery requests from the FFIEC’s Bank Secrecy Act/Anti-Money Laundering Examination Manual and the agencies’ third-party risk management guidance. They will ask what the bank knew about its vendor, what controls it required, whether anyone independently tested the account records, and whether the bank had a workable plan for the day the vendor failed. The Synapse plaintiffs are already doing a version of this. Their Colorado complaint points to a June 2024 Federal Reserve enforcement action against Evolve, based on 2023 examinations that found Evolve lacked an effective risk-management framework for its fintech partnerships, to argue that Evolve knew of its problems well before the bankruptcy. The Fed said its action was independent of the Synapse bankruptcy. Regulatory findings do not establish civil liability, but they will shape the claims, defenses, and discovery.7 Reducing the Litigation Risk No contract eliminates BaaS risk. A bank can, however, decide now what kind of record it will have when the dispute arrives.  Diligence should scale with what the bank is handing over. A bank that lets a vendor keep its core records or process its transactions needs to know how those records are created, where they live, and how the bank can check them independently.  Draft the contract for the worst day of the relationship. It should address, in plain terms, recordkeeping and reconciliation; data access and audit rights; indemnification and insurance; and transition assistance. Most important, it should give the bank usable access to the records before a crisis, not merely a right to demand them after one. A right to data means little against a vendor that has stopped operating.  Then test whether the bank could function without the vendor. That means backups, independent reconciliation, data-export procedures that have actually been run, and an exit plan built for abrupt failure rather than an orderly wind-down. The right controls depend on what is outsourced, but the test is always the same. If the provider disappeared tomorrow, could the bank still determine what it owes each customer?  The bank does not need to write the software. It does need to know which system is authoritative, how balances are calculated, where transaction records reside, and whether those records can be preserved and produced in litigation. If only the vendor can answer those questions, the dependency is itself the risk.  What Comes Next Synapse did not end Banking-as-a-Service. It exposed the questions every bank in a fintech partnership should already be able to answer. Who performs each function? Who controls the records? What is left when one company disappears?  Those questions get harder as fintechs build artificial intelligence into account monitoring, fraud detection, and customer service, exposing banks to errors by autonomous AI agents and AI-enabled fraud.  Much of the Synapse litigation remains unresolved, and the law governing these relationships is still forming. Banks should not wait for it. They should structure every fintech partnership on the assumption that, when something goes wrong, the bank will have to explain not only what its vendor did, but why it trusted the vendor to do it.  1 Hugh Son, Fintech Nightmare: “I Have Nearly $38,000 Tied Up” After Synapse Bankruptcy, CNBC (May 22, 2024), https://www.cnbc.com/2024/05/22/synapse-bankruptcy-customer-funds.html; Mary Ann Azevedo, Synapse, Backed by a16z, Has Collapsed, and 10M Consumers Could Be Hurt, TechCrunch (May 25, 2024), https://techcrunch.com/2024/05/25/with-a16z-backed-synapses-collapse-baas-fintech-is-a-mess-and-10-million-consumers-could-be-hurt/. 2 Mary Ann Azevedo, Synapse’s Collapse Has Frozen Nearly $160M from Fintech Users—Here’s How It Happened, TechCrunch (Aug. 22, 2024), https://techcrunch.com/2024/08/22/synapses-collapse-has-frozen-nearly-160m-from-fintech-users-heres-how-it-happened/; In re Synapse Financial Technologies, Inc., No. 1:24-bk-10646-MB (Bankr. C.D. Cal. filed Apr. 22, 2024). 3 Consumer Financial Protection Bureau, Synapse Financial Technologies, Inc. (Aug. 21, 2025), https://www.consumerfinance.gov/enforcement/actions/synapse-financial-technologies-inc/; Stipulated Final Judgment and Order, Consumer Financial Protection Bureau v. Synapse Financial Technologies, Inc., Adv. No. 1:25-ap-01052-MB (Bankr. C.D. Cal. Sept. 12, 2025). 4 Class Action Complaint, Margul v. Evolve Bank & Trust, No. 1:24-cv-03259 (D. Colo. Nov. 22, 2024); Consolidated Class Action Complaint, Justus v. Evolve Bank & Trust, No. 2:25-cv-02385 (W.D. Tenn. Apr. 4, 2025), transferred and consolidated with Margul, No. 1:24-cv-03259 (D. Colo. Sept. 17, 2025). Dispositive motions remained pending in the consolidated action as of early 2026. 5 Order Granting Motion to Dismiss First Amended Complaint, Yotta Technologies Inc. v. Evolve Bank & Trust, No. 3:24-cv-06456-TLT (N.D. Cal. Feb. 18, 2026) (holding that the action could not proceed in federal court without Synapse as a required party and could be refiled in state court), appeal docketed, No. 26-1535 (9th Cir. Mar. 13, 2026). The court previously dismissed Yotta’s original complaint in May 2025. 6 Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation & Office of the Comptroller of the Currency, Interagency Guidance on Third-Party Relationships: Risk Management, 88 Fed. Reg. 37,920 (June 9, 2023); see also FDIC, FIL-29-2023 (June 6, 2023), https://www.fdic.gov/news/financial-institution-letters/2023/fil23029.html; Office of the Comptroller of the Currency, Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation & National Credit Union Administration, Proposed Third-Party Risk Management Guidance, 91 Fed. Reg. 58,536 (Sept. 15, 2026); 12 U.S.C. § 1867(c); see also Crowell & Moring LLP, From Process to Principles: Federal Regulators Propose a New Third-Party Risk Management Framework (Sept. 30, 2026), https://www.crowell.com/en/insights/client-alerts/from-process-to-principles-federal-regulators-propose-a-new-third-party-risk-management-framework. 7 Board of Governors of the Federal Reserve System, Federal Reserve Board Issues an Enforcement Action Against Evolve Bank & Trust for Deficiencies in the Bank’s Anti-Money Laundering, Risk Management, and Consumer Compliance Programs (June 14, 2024), https://www.federalreserve.gov/newsevents/pressreleases/enforcement20240614a.htm. The Federal Reserve stated that the enforcement action was independent of the Synapse bankruptcy. See also Synapse Partner Banks Hit with Lawsuit over Fund Mismanagement, Banking Dive (Nov. 2024), https://www.bankingdive.com/news/synapse-partner-banks-evolve-amg-lineage-american-bank-hit-with-lawsuit-over-fund-mismanagement/734219 (reporting that the Margul complaint relied on the Federal Reserve order to allege Evolve knew of its compliance issues before the Synapse bankruptcy).

October 14, 2026

Family Law

The Risks of Using AI to Draft a Marital Settlement Agreement

As artificial intelligence becomes more accessible, individuals navigating divorce may be tempted to use AI tools to draft their own marital settlement agreements to save time and legal fees. However, what appears to be a convenient solution can create significant legal, financial, and personal risks. A marital settlement agreement is a legally consequential document that may determine property division, spousal support, debt allocation, and parenting arrangements. AI-generated agreements may contain inaccurate legal provisions, overlook important financial considerations, or fail to comply with jurisdiction-specific requirements. Professional-sounding language does not guarantee that an agreement is complete, enforceable, or in a client's best interests. The risks can be particularly significant when a divorce involves business interests, retirement accounts, complex assets, tax implications, or children. Generic provisions may fail to address future contingencies, leaving parties vulnerable to costly disputes. Additionally, entering sensitive financial or personal information into AI platforms may raise privacy and confidentiality concerns. AI can be a useful organizational tool, but it should not replace individualized legal advice. An experienced family law attorney can identify overlooked issues, explain the consequences of proposed terms, negotiate appropriate protections, and ensure the agreement complies with applicable law. Ultimately, the cost of correcting an inadequate marital settlement agreement may far exceed the expense of obtaining legal guidance before signing. In divorce proceedings, convenience should never come at the expense of protecting one's rights and long-term interests.

October 14, 2026

Family Law

Behind the Headlines: What Family Lawyers Need to Know About Representing High-Profile Clients

Representing high-profile clients in family law matters requires more than a strong understanding of divorce, custody, and financial settlements. For celebrities, business executives, politicians, professional athletes, and other prominent individuals, family disputes can carry significant legal, financial, professional, and reputational consequences. Family lawyers must therefore combine legal expertise with discretion, strategic judgment, and a thorough understanding of the unique challenges their clients face. Confidentiality and reputation management are often central to these cases. Attorneys must help clients understand what information may become public, identify appropriate privacy protections, and develop strategies for responding to media attention or unauthorized disclosures. While confidentiality cannot always be guaranteed, careful case management and thoughtful communication can help minimize unnecessary exposure. Complex financial matters may also require specialized expertise. High-profile clients may have substantial business interests, investment portfolios, trusts, real estate holdings, intellectual property, and variable compensation. Family lawyers frequently collaborate with forensic accountants, financial advisers, valuation experts, and tax professionals to identify assets, assess financial obligations, and pursue equitable outcomes. When children are involved, protecting their privacy and best interests remains paramount. Attorneys must consider custody arrangements, demanding professional schedules, travel, security concerns, and the potential impact of public scrutiny on the family. A measured, child-focused approach can help reduce conflict and preserve stability during an already difficult transition. Equally important is selecting the appropriate dispute-resolution strategy. Negotiation, mediation, and other available forms of alternative dispute resolution may offer greater privacy and control than public litigation, although court proceedings may be necessary to protect a client's rights. Effective counsel evaluates each option in light of the client's circumstances, objectives, and long-term interests. Ultimately, representing high-profile clients requires balancing assertive advocacy with sound judgment and discretion. The most effective family lawyers understand that success is not measured solely by the outcome of a settlement or trial, but also by their ability to protect their clients' interests, manage risk, and guide families through complex personal transitions with professionalism and care.

October 14, 2026

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. Visit our NJDEP Enforcement Insights page for additional guidance, updates, and resources.

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. Visit our NJDEP Enforcement Insights page for additional guidance, updates, and resources.

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

The Pause Before the Pitch: Why Listening Changes Business Development

Business development can make us feel like we always need to have an answer ready. When a prospect raises a concern, there can be an instinct to explain, solve the problem, or move the conversation toward the next step. We want to demonstrate that we understand their situation and have something valuable to offer. Sometimes, though, the most useful thing we can do is pause and make sure we understand what the other person is actually saying. When someone shares a concern, what they say may only be part of the story. A comment about budget might really be about timing, priorities, or uncertainty about making a change. Hesitation about moving forward could have more to do with internal circumstances than the proposal itself. Taking the time to understand what is behind the concern can change the conversation because it gives you information you would not have had if you immediately moved into solution mode. That can be difficult when you are already thinking about what you want to say next. In a business development conversation, it is natural to focus on how to respond, how to demonstrate your expertise, or how to keep the conversation moving. We can hear someone's words while already preparing our answer. A pause creates some room to listen differently. Instead of immediately defending an approach or offering a solution, you can acknowledge the concern and give the other person room to explain more. That additional conversation can reveal what is really standing in the way. Imagine a prospect says, “We’re just not ready to make a decision right now.” The natural response might be to explain why your service could still be valuable or suggest another meeting. But asking what would need to happen before they feel ready could uncover something you would not have known otherwise. Maybe the timing is wrong. Maybe there is another decision that needs to happen first. Maybe the concern has nothing to do with your proposal at all. Listening also changes how people experience the conversation. When someone feels heard, they are more likely to see that you are interested in understanding their situation rather than simply trying to win their business. That matters because trust is built through interactions, and the way you respond when a conversation becomes uncertain or difficult can tell someone a great deal about what working with you might be like. This does not mean every concern needs to become a lengthy conversation. Sometimes it simply means slowing down long enough to make sure you understand what you have heard before deciding where the conversation should go. Giving someone that space can lead to a better conversation, even when it does not lead immediately to a business opportunity. The strongest business development conversations are not always the ones where you have the perfect answer ready. They are often the ones where you took the time to understand the person sitting across from you. Knowing when to pause can be just as important as knowing what to say.

October 1, 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. Visit our NJDEP Enforcement Insights page for additional guidance, updates, and resources.

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