On August 11, 2026, the Eighth Circuit issued a published opinion in Maniktala v. Commissioner, reversing the Tax Court and holding that the 90-day deadline under Internal Revenue Code section 6213(a) is not jurisdictional and may be subject to equitable tolling.

I had the privilege of briefing and arguing this appeal on behalf of the taxpayers, making this decision both professionally meaningful and practically important for taxpayers in the Eighth Circuit.

The Eighth’s decision may sound procedural. It is. But procedure is often where taxpayer rights either survive or disappear.

Why This Matters

A notice of deficiency is the IRS’s formal determination that a taxpayer owes additional tax. For most taxpayers, once that notice is mailed, section 6213(a) gives them 90 days to file a petition in the United States Tax Court.

Tax Court matters because it allows taxpayers to challenge the IRS before paying the disputed tax. That prepayment forum is often the difference between a taxpayer being able to challenge the IRS at all and being priced out of the fight. Without Tax Court access, a taxpayer may be forced to pay the disputed liability first, pursue an administrative refund claim, and then sue for a refund in federal court if the IRS denies the claim. For many taxpayers, that is not a realistic alternative. The amount at issue may be too large. The process may be too expensive. The taxpayer may never get a meaningful chance to be heard. So, when the Tax Court treats the 90-day deadline as jurisdictional, the consequence is severe. If the petition is late, even by circumstances outside the taxpayer’s control, the court says it has no power to do anything about it.

No equitable tolling. No consideration of fairness. No hearing whether the taxpayer acted diligently. Just dismissal.

Maniktala changes that rule in the Eighth Circuit.

What the Eighth Circuit Held

The Eighth Circuit held that section 6213(a)’s 90-day filing deadline is a claims processing rule, not a jurisdictional bar. And this is the important distinction. A jurisdictional rule limits the court’s power. If a deadline is jurisdictional, courts generally cannot forgive a late filing, even for compelling reasons.

A claims-processing rule, by contrast, still matters. Deadlines still matter. Taxpayers still need to file on time whenever possible. But a claims-processing deadline may be subject to equitable tolling in appropriate circumstances.

In plain English, the court agreed with our position: a late petition does not automatically mean the courthouse doors are locked forever. The Eighth Circuit also held that the deadline is subject to equitable tolling. That does not mean every late petitioner wins. It means taxpayers may have the opportunity to show that they pursued their rights diligently and that extraordinary circumstances prevented timely filing. It is not a free pass to miss the deadline, and it shouldn’t be. But it is a chance to be heard. And in tax procedure, that chance can make all the difference.

The Facts Make the Point

The Maniktalas filed joint returns claiming research and development credits based on activities of an S corporation. The IRS later issued a notice of deficiency to the shareholders. The notice was mailed on December 20, 2023, and listed March 19, 2024, as the last day to file a Tax Court petition. Our clients, however, did not receive the notice until July 9, 2024. A Tax Court petition was filed on July 19, 2024, after the 90-day period expired. The Tax Court dismissed the case for lack of jurisdiction.

On appeal, the Eighth Circuit reversed and remanded so the Tax Court could determine whether equitable tolling is warranted. The Eighth Circuit did not hold that the taxpayers automatically receive tolling. It held that the Tax Court has authority to consider whether they do. That is the point. The Tax Court is no longer required to stop at “late.” It may now ask “why.”

The Growing Circuit Split

Maniktala is part of a much larger, unsettled national issue. The Eighth Circuit joined the Second, Third, and Sixth Circuits in holding that section 6213(a)’s deficiency petition deadline is not jurisdictional and is subject to equitable tolling. Other circuits have gone the other way or have not yet adopted that view. The Tax Court itself has continued to treat the deadline as jurisdictional in cases not appealable to circuits that have rejected that approach.

That means taxpayer rights currently depend, in part, on geography. A taxpayer in one circuit may receive a chance to seek equitable tolling. A similarly situated taxpayer in another circuit may not. That is a hard result to justify when the issue is access to court.

As of now, this issue remains active nationally, with circuit law continuing to develop. Unless and until Congress or the Supreme Court resolves the issue nationwide, taxpayers may continue to face different procedural rules depending on where their case is appealable.

That is not how access to Tax Court should work.

Congress Is Watching Too

This is not just happening in the courts. Legislation currently before Congress reflects the same position taxpayers advanced in Maniktala: The Tax Court should have authority to apply equitable tolling in deficiency cases when the facts and circumstances warrant it.

The Tax Court Improvement Act would expressly provide that the Tax Court has jurisdiction to toll the section 6213(a) filing period when equity warrants tolling. It would also address the harsh consequences that may follow when a late Tax Court petition is dismissed.

That legislative development reflects a broader recognition that procedural deadlines should not become automatic traps that prevent taxpayers from ever challenging the IRS on the merits, particularly when the taxpayer acted diligently, and circumstances beyond the taxpayer’s control caused the late filing.

Deadlines matter. But they should not become traps that eliminate judicial review when equity warrants a hearing.

What Taxpayers Should Take Away

The first takeaway is simple: do not miss the 90-day deadline if at all possible.

If you receive a notice of deficiency, act immediately. The deadline is short. Interest may continue to run. Collection consequences may follow. And even in circuits that allow equitable tolling, tolling is not automatic.

The second takeaway is just as important: if the deadline has already been missed, the analysis may not be over. Taxpayers should not assume that a late petition automatically ends the fight. Depending on where the case is appealable, and depending on the facts, equitable tolling may be available.

The third takeaway is that notices matter. Mail issues matter. Timing matters. Documentation matters. If a taxpayer receives a notice late, never receives it, relies on incorrect information, faces serious circumstances preventing timely filing, or otherwise misses the deadline despite diligence, those facts should be preserved immediately.

Equitable tolling is fact intensive. Taxpayers should keep records of everything they do when dealing with the IRS, including notices received, envelopes, mailing dates, calls, correspondence, representative communications, and efforts to act once they learn of a problem. The IRS makes mistakes. Mail gets delayed. Notices are missed. But the burden remains on the taxpayer to show that an extraordinary circumstance, and not simple inattention, caused the missed procedural deadline.

The Bottom Line

Maniktala gives taxpayers in the Eighth Circuit something they did not clearly have before: the opportunity to ask the Tax Court to consider equitable tolling in deficiency cases.

That is not a technicality. It is access to court. And when the IRS says a taxpayer owes more money, access to court is often the difference between having rights on paper and having a real chance to use them.

These employees are protected by rights under the Americans with Disabilities Act (ADA), but their employer has an obligation to prevent them and co-workers from being exposed to known risks of serious physical harm. This balance is not easy to navigate. For HR professionals and in-house counsel, understanding where the ADA draws its lines, and where employers most often cross them, is essential to managing safety-related situations without inviting a discrimination claim.

The Direct Threat Standard: The Only Real Safety Exception 

The ADA doesn't allow employers to exclude an employee from a position, or take adverse action, simply because the employee has a disability that could create risk. The statute carves out a narrow exception: an employer may act if the employee poses a direct threat, which is defined as a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced through reasonable accommodation.

That standard has teeth, and each word matters:

• Significant risk, not a slightly elevated or speculative one
• Substantial harm, not minor or theoretical injury
• Assessed through an individualized evaluation, not generalized assumptions about a diagnosis or condition
• Based on the most current medical knowledge and/or objective evidence, not outdated stereotypes or a manager's gut instinct
• Considered only after evaluating whether reasonable accommodation would neutralize the risk

The EEOC has been consistent for decades: an employer cannot rely on generalizations about a disability, an employee's diagnosis in isolation, or a “better safe than sorry” instinct. The threat has to be real, current, and specific to the individual in the specific job.

The Four-Factor Direct Threat Analysis 

When evaluating whether a genuine direct threat exists, courts and the EEOC look at:

• Duration of the risk. Is this a temporary condition or an ongoing one?
• Nature and severity of the potential harm. How serious could the injury be?
• Likelihood the harm will occur. Is this a real probability or a remote possibility?
• Imminence of the harm. How soon could the harm materialize?

Employers frequently stumble by skipping bullet point one and going straight to bullet point two, imagining worst-case harm, without seriously grappling with likelihood and imminence. A theoretical catastrophic outcome with a low probability of occurring generally will not satisfy the standard.

Essential Functions Come First

Before any safety analysis, the more fundamental question is whether the employee can perform the essential functions of the position, with or without reasonable accommodation. Safety concerns are frequently really essential function concerns in disguise — an employer worried about a “safety issue” is often actually worried about whether the person can physically or mentally execute a core job duty.

This distinction matters procedurally. Essential function analysis and direct threat analysis are related but separate inquiries, and conflating them tends to produce sloppy, defensible-sounding decisions that don't hold up. A written, thorough, and updated job description identifying essential functions, developed before a dispute arises, is one of the most valuable tools an employer can have in either analysis.

Objective Evidence, Not Instinct

A recurring theme across ADA safety litigation is the demand for objective evidence over subjective judgment. Employers who prevail tend to point to:

• Documented, specific incidents (falls, near-misses, errors with safety implications)
• Credible medical opinions tied to the actual essential functions of the job
• Observable, recent performance or behavioral indicators, not stale history or rumor

Employers who lose tend to rely on assumptions: the belief that a particular diagnosis inherently makes someone unsafe, or that a visible mobility aid, medication, or past medical leave signals risk. The ADA's core anti-stereotyping purpose is aimed precisely at that kind of reasoning.

Reasonable Accommodation Still Comes First

Even where a legitimate safety concern exists, the ADA requires employers to consider whether reasonable accommodation would eliminate or sufficiently reduce the risk before taking adverse action. This might include modified duties, additional safety equipment, adjusted schedules, or reassignment. Only if no accommodation reduces the risk to an acceptable level, and the employer can show that the accommodation would pose undue hardship, does exclusion become legally supportable.

Skipping this step, even with good intentions, is one of the most common and costly mistakes employers make.

Fitness-for-Duty Exams: A Common Flashpoint

Safety concerns often lead employers toward fitness-for-duty (FFD) exams, which are permissible under the ADA only when job-related and consistent with business necessity — generally requiring objective evidence that a medical condition may impair job performance or create a safety risk. A single ambiguous incident, a known diagnosis standing alone, or generalized concern typically won't clear that bar. The request also has to be narrowly scoped to what's needed to assess ability to safely perform the job, not a broad inquiry into unrelated medical history.

The Bottom Line

The ADA doesn't ask employers to ignore safety. It requires them to prove it, with facts, with process, and with an honest accounting of whether accommodations could have solved the problem. Employers who build that discipline into their practices protect their workforce and substantially reduce their legal exposure at the same time.

The opinion request comes in late. Organizational documents are incomplete. The opinion form does not match the transaction. The authorization documents were prepared without reference to the governing agreement. Or the transaction changes, but Delaware opinion counsel does not receive the revised documents.

Most of these problems are preventable. After handling Delaware opinions in transactions of varying size and complexity, an efficient opinion workstream generally follows the same basic sequence.

Here is a practical roadmap.

Step 1: Identify the Delaware Entities and the Opinion Requirement 

Start with the basics: identify which Delaware entities are involved and define each entity's role in the transaction. Determine whether each entity is acting as a borrower, guarantor, pledgor, general partner, managing member, or another transaction party, and then identify exactly what opinion is required.

A credit agreement or closing checklist may simply require an “opinion of Delaware counsel,” but that description does not necessarily tell you what Delaware counsel is expected to cover. Obtain the proposed opinion form — or at least the requested opinion provisions — as early as possible. For transaction counsel, the practical question is not whether Delaware counsel can deliver the opinion, but whether the right materials reach the right people early enough.

Step 2: Build the Organizational Document Package 

For each Delaware entity, assemble the complete organizational record.

Depending on the type of entity, the package will typically include:

• the certificate of formation or incorporation and any amendments
• the current LLC agreement, partnership agreement, bylaws, or other governing agreement
• relevant amendments, joinders, assignments, or other modifications
• certificates of good standing or similar certificates
• existing resolutions, consents, or other authorization documents relevant to the transaction

Do not assume that the certificate filed with the Delaware Secretary of State tells the entire story. For Delaware alternative entities in particular, the governing agreement matters. Delaware law provides significant contractual flexibility. An LLC agreement, for example, may establish approval requirements, manager authority, voting thresholds, restrictions, or other conditions that affect whether the entity can properly authorize a transaction.

This organizational package becomes the foundation for the later authorization analysis, so the governing documents should be reviewed before the authorization documents are finalized, not after.

Step 3: Provide the Transaction Documents

Next, identify the documents the Delaware entity will actually execute.

Depending on the transaction, these might include a credit agreement, guaranty, pledge agreement, security agreement, mortgage, purchase agreement, merger agreement, or other operative documents. These documents do not necessarily need to be in final execution form when opinion review begins. They should, however, be sufficiently developed to allow counsel to understand the transaction and determine what the Delaware entity is being asked to do.

This distinction matters: waiting for absolute final documents can unnecessarily delay the opinion process, while starting from documents that are changing materially every day can create a different problem.

The practical goal is to begin with documents that are substantially settled and then keep opinion counsel informed of material changes as the transaction moves toward closing.

Step 4: Determine Who Is Covering What

This is one of the most important steps.

Not every legal issue involving a Delaware entity is necessarily a Delaware opinion issue.

A transaction may involve Delaware entity law, New York contract law, the law of the jurisdiction where real property is located, Article 9 of the Uniform Commercial Code, federal law, or the laws of several other jurisdictions. Different counsel may therefore be responsible for different portions of the overall opinion package.

The parties should determine early which opinions are expected from Delaware counsel and which are being provided by primary transaction counsel, local counsel, UCC counsel, or other specialized counsel. Doing this early prevents a particularly frustrating closing-day discovery: everyone assumed someone else was covering the opinion.

Step 5: Review the Requested Opinions Before the Closing Crunch

Once the organizational documents and substantial final transaction documents are available, the requested opinion language can be analyzed. This is where assumptions, qualifications, limitations, and proposed revisions should be addressed.

An opinion request should not be treated as boilerplate simply because it came from a form used in another transaction.

The entity may be different, the governing documents may be different, the transaction structure may be different, and the governing law may be different. Most importantly, the opinion being requested may be different.

A power opinion is not an authorization opinion; an authorization opinion is not an enforceability opinion; and an enforceability opinion is not a perfection or priority opinion.

Precision matters. Resolving those distinctions before the closing date is considerably easier than negotiating them while everyone is waiting for funding.

Step 6: Match the Authorization to the Governing Documents

Once the transaction structure is sufficiently settled, the authorization documents should be checked against the entity's governing documents.

Who has authority to approve the transaction: members, managers, the board, or another person or entity with consent rights?

Does the governing agreement impose a particular voting threshold, and if the entity acts through another entity, has the authority chain been followed all the way through?

The goal is simple: the transaction documents, governing documents, authorization documents, and signature blocks should tell the same story. When they do not, that is when seemingly small issues can become closing problems.

Step 7: Keep Delaware Counsel Informed of Material Changes

Transactions change, and that is normal. Not every revised draft needs to restart the opinion analysis, but changes affecting the Delaware entity, its obligations, the parties, the transaction structure, or the documents being executed should be communicated promptly.

A seemingly small change to the deal terms may affect an opinion conclusion. The safest approach is not to guess whether a change matters, but to identify the change and allow counsel responsible for the opinion to determine whether it affects the analysis.

Step 8: Finish the Opinion Before Everyone Is Waiting for It

By the time the transaction reaches closing, the substantive opinion work should ideally be complete. The remaining items should primarily involve confirming final documents, completing appropriate bring-down diligence, such as confirming good standing and checking for final changes to governing or transaction documents, confirming execution and authorization, and issuing the opinion.

That is the objective: the closing table is not the place to discover an unusual provision in an LLC agreement, negotiate the scope of an opinion, or determine who had authority to approve the transaction.

Those issues should already have been resolved.

The Practical Takeaway

The Delaware opinion process does not need to be complicated. In most transactions, the formula is straightforward:

• Identify the entities
• Obtain the opinion form
• Assemble the organizational documents
• Provide the transaction documents
• Allocate opinion coverage
• Confirm authorization
• Resolve comments
• Communicate material changes
• Close

None of those steps are particularly remarkable; what matters is the order in which they happen.

A Delaware legal opinion is a relatively small closing deliverable, but it sits at the intersection of the entity's governing documents, Delaware law, the transaction documents, and the closing requirements. That is what makes preparation important.

The best opinion process is the one nobody remembers after closing, because the issues were identified early, the documents matched, and the opinion was ready when needed.

]]> https://www.offitkurman.com/offit-kurman-blogs/ai-cybersecurity-risks-legal-duty-reasonable-care/ Mon, 17 Aug 2026 00:00:00 +0000 https://www.offitkurman.com/?post_type=blog-post&p=14027 OpenAI recently disclosed that, during testing of one of its frontier artificial intelligence models, AI agents working to solve assigned tasks found ways to access the internet and ultimately infiltrate the systems of another AI company, Hugging Face. They did so through pathways OpenAI's developers never intended them to reach. The incident quickly dominated technology and cybersecurity headlines. It also prompted OpenAI to send two of its security engineers to Black Hat USA 2026, one of the cybersecurity industry's premier conferences, to discuss what occurred.¹ 

Although the Black Hat presentation included highly technical explanations of the exploits, there were two noteworthy statements that stood out from a legal perspective.

First, one OpenAI engineer explained that agents who became stuck on their assigned tasks "thought to try to get internet access in ways we didn't intend." Second, the presenters repeatedly emphasized that the incident was not the result of malicious human actors. It was an unintended consequence of testing frontier AI systems whose behavior ultimately extended beyond what their developers anticipated.²

Some observers view the incident as another example of the broader concerns surrounding AI autonomy and alignment. Others see it as evidence that cutting-edge AI systems require greater oversight, testing safeguards, and deployment controls.

Regardless of where one falls in that debate, the incident highlights a challenge general counsel cannot afford to ignore. Organizations increasingly face risks not only from malicious actors, but also from highly capable systems pursuing legitimate objectives through unexpected means.

The legal implications of that reality, however, may be far less revolutionary than many assume.

The Technology Has Changed. The Legal Question Has Not.  

In Krupa v. TIC International Corp., a federal court recently summarized the relationship between businesses and customer data in simple terms: "Consumers entrust their data to firms with the expectation that those firms take reasonable care against data breaches."³

Long before courts dealt with ransomware, credential theft, or AI-enabled cyberattacks, they addressed a more basic question. What duty does someone owe when entrusted with another person's property?

The law answered that question through the doctrine of bailment. A custodian was not an insurer against every loss. But the custodian was expected to exercise reasonable care over property entrusted to it.

More than a century ago, in Claflin v. Meyer, a New York court explained that a warehouse owner was not automatically liable simply because thieves successfully stole property entrusted to his care. Liability turned on whether the warehouse failed to exercise the degree of care that a prudent person would use to protect his own property under similar circumstances.⁴

That same principle continues to echo through modern data-breach litigation. Courts may label the theory differently depending on the jurisdiction. One court may analyze negligence. Another may discuss bailment. A third may focus on some other duty. Yet the practical question remains remarkably consistent throughout.

Did the company take reasonable steps to protect information entrusted to its care?

Today's businesses may not store their customers’ data in warehouses, but they are the keepers of a vast array of valuable digital data. Banks maintain clients’ financial information. Law firms possess confidential communications. Healthcare providers store patient records. Virtually every organization now serves as a custodian of information entrusted to it by someone else.

In the nineteenth century, courts looked at locks, guards, and warehouse security. Today they examine the overall cybersecurity posture of an organization. The specific safeguards may be different, but the inquiry is very similar.

The tools have changed. The standard has not.

Why the OpenAI Incident Matters  

The significance of the OpenAI-Hugging Face incident is not that it suddenly created a new legal duty. It may, however, influence what decision-makers come to expect from organizations entrusted with sensitive information.

During the Black Hat presentation, OpenAI's engineers acknowledged a concern increasingly shared across the cybersecurity industry. Offensive AI capabilities may be advancing faster than defensive ones.

For general counsel, that does not mean every company must immediately deploy cutting-edge AI security tools or spend unlimited resources on cybersecurity. Courts have never required perfection, and they are unlikely to start now.

But reasonable care is not a static concept. As threats evolve, expectations evolve. A security posture that appeared reasonable five years ago may not appear reasonable five years from now.

What General Counsel Should Be Asking  

The lesson from the OpenAI incident is not that every company needs to keep up with all the goings-on of every cutting-edge AI company. The lesson is that cybersecurity can no longer be treated as an issue that belongs exclusively to IT.

General counsel do not need to know how to configure firewalls or administer cloud environments. They should, however, be able to explain why the organization chose the safeguards it did and why those safeguards were reasonable under the circumstances.

In advising a client after reviewing the OpenAI incident, it would be important to determine whether management could confidently answer a handful of basic questions:

• What sensitive information does the company hold?
• Where is that information stored, and who has access to it?
• What cybersecurity standards or frameworks guide the company's program?
• How often does the company assess new risks or known vulnerabilities?
• Which vendors store or process sensitive information for the company?
• How does the company monitor emerging AI-related cybersecurity threats?
• When did the company last conduct a tabletop exercise or incident-response drill?
• If a breach occurred tomorrow, what evidence would show that the company acted reasonably?

The goal is not merely to have answers. The goal is to document the process.

If a breach ultimately occurs, a company is far better positioned when it can point to documented, pre-breach evaluations of its cybersecurity risks and safeguards. That evidence tells a compelling story. It shows that management recognized the risks, discussed potential safeguards, consulted the appropriate professionals, and made informed decisions before anything went wrong.

A judge or jury is generally more likely to view that conduct as reasonable than a company attempting to reconstruct and justify its decisions only after a breach has occurred.

The Legal Standard Has Not Changed

The emergence of increasingly capable AI systems has generated plenty of headlines and speculation. Some of that concern may prove justified. Some may prove overstated.

From a legal perspective, however, the underlying principle remains remarkably familiar.

No company is expected to create an impenetrable system. No company is expected to anticipate every threat. What courts have historically required is reasonable care.

AI may have altered the speed, scale, and sophistication of cyberattacks. Yet the fundamental question that follows a breach remains much the same as it was when courts evaluated warehouse burglaries more than a century ago.

Did the company act reasonably to protect what was entrusted to its care?

The warehouses have changed. They are now digital. The duty of reasonable care, however, remains the same.

¹ Michael Dalton & Eric Wallace, The "Breaking" News: The OpenAI-Hugging Face Incident: A Technical Reconstruction and Its Implications for AI, Black Hat USA 2026, YouTube (Aug. 2026), https://www.youtube.com/watch?v=87DyyMV0kCY.

² Id.

³ Krupa v. TIC Int'l Corp., No. 1:22-cv-01951-JRS-MG, 2023 WL 143140, at *2 (S.D. Ind. Jan. 10, 2023).

4 Claflin v. Meyer, 75 N.Y. 260, 264-65 (1878). See also In re Target Corp. Customer Data Sec. Breach Litig., 66 F. Supp. 3d 1154, 1175-77 (D. Minn. 2014) (allowing data-breach claims to proceed past the pleading stage).

The Employee's Choice: Mid-Day Commuting Stays Unpaid

The first letter deals with a familiar hybrid-work scenario. Employees want to work part of the day from home and part from the office, timing their drive to dodge rush hour rather than sitting in traffic during the worst of it. The employer worried that under the FLSA's continuous workday doctrine, once an employee clocks in for the day, any travel before clocking out again becomes compensable, even if it is really just a commute that happens to fall in the middle of the day rather than at the beginning or end.

WHD said no. When the employee decides when to travel and that decision is driven by personal preference rather than any work demand, the trip remains what it has always been: an ordinary commute. It does not matter that it happens mid-shift. The agency went further and effectively created a third bucket of non-compensable time that exists alongside off-duty periods and bona fide meal breaks: voluntary, employee-driven travel that falls inside the continuous workday but outside the definition of "hours worked."

This is a meaningful win for employers trying to offer real flexibility. It confirms that letting people avoid gridlock, or duck out mid-afternoon to handle something at home before logging back in later, does not by itself create new wage exposure.

The Employer's Control: Travel Bookended by Required Work Gets Paid

The second letter tells a different story, and the contrast is the point. Here, a field service engineer with no fixed office spends up to an hour most mornings on the phone, fielding pages, and scheduling appointments with clients and colleagues, before ever leaving the house in a company vehicle to reach the first job. WHD found that the scheduling calls themselves are compensable because they are integral to the engineer's actual job of installing and servicing equipment. More importantly for scheduling purposes, the drive that follows is compensable too, because the employer requires substantial work immediately before and immediately after the travel, and because the employer, not the employee, controls when and how that travel occurs.

Notably, WHD drew a line even within this letter. Simply receiving pages during the drive was treated as incidental to using an employer-provided vehicle and did not, by itself, trigger compensability. The dividing line the agency keeps returning to is not the mere presence of a phone or a laptop during the commute; it is whether the employer is dictating the timing of the trip and sandwiching it between required work.

Reading the Two Letters Side by Side

Both opinion letters apply the same "primary beneficiary" framework that has guided FLSA travel-time analysis for decades, and both reach different results because of who is actually calling the shots. Where the employee sets the schedule, and the travel serves the employee's own convenience, the trip stays an ordinary, unpaid commute even if it happens smack in the middle of a workday. Where the employer sets the schedule and requires real work on both ends of the drive, the travel loses its status as an ordinary commute and becomes paid time.

What This Means for Employers Right Now

For employers running hybrid schedules, offering flexible start and end times, or managing a field-based workforce, these letters offer something rarer than most agency guidance: a clear, factor-based test that can actually be built into policy. The safest ground is genuine employee choice over the timing of travel, paired with no requirement to perform work immediately before or after the drive. The moment an employer starts dictating when someone has to leave, or requiring calls, paperwork, or scheduling tasks right up against the commute, the analysis shifts and the travel time risk goes up.

It is worth remembering that opinion letters are not binding law, but they do carry real practical weight. An employer who structures a policy consistent with an opinion letter and later faces a Fair Labor Standards Act claim on the same facts has a strong argument against a finding of willfulness, which can matter enormously for liquidated damages and the statute of limitations. It is also worth remembering that these letters interpret federal law only. A number of states impose stricter rules on what counts as compensable travel time, so any policy built around this guidance still needs to be checked against state law before it is rolled out.

Employers revisiting hybrid work policies, flexible scheduling, or field employee protocols in light of this guidance should take a close look at who actually controls the timing of the commute and what, if anything, employees are required to do immediately before or after they get in the car.

The landowner and business tenant plaintiffs alleged that construction of Amazon's Louisa County data center created excessive noise, bright lights, dust, flooding, water-quality issues, vibrations, structural cracking to the plaintiffs’ property, and disruptions to the plaintiffs’ business. The court found the plaintiffs’ allegations sufficient to withstand a motion to dismiss. The case will now proceed, and discovery can begin.

Why This Matters

The decision is significant because it reinforces a growing trend of opposition and resistance to data center developments. Even if a project is properly permitted, it can still face nuisance claims from neighboring property owners or occupants. Virginia courts have long recognized that lawful development activities can become actionable if they unreasonably interfere with a neighbor's use and enjoyment of property. Bowers v. Westvaco Corp., 244 Va. 139, 147, 419 S.E.2d 661, 667 (1992).

Just as importantly, the court refused to analyze each complaint in isolation. Instead, it looked at the alleged impacts collectively, considering the combined effects of noise, dust, lights, vibrations, flooding, and other conditions on the neighboring property.

For data center developers, that approach creates risk. A complaint that might appear manageable when viewed issue-by-issue can look much different when all alleged impacts are bundled together into a single nuisance claim.

A Growing Challenge for Large-Scale Projects

The ruling comes as data center development continues to expand beyond Northern Virginia into communities such as Louisa County and elsewhere across the country. These projects often involve years of construction activity, extensive grading, heavy truck traffic, large-scale utility work, and around-the-clock operations. As a result, developers should expect increased scrutiny from nearby residents and businesses, particularly when projects are located near existing homes or commercial properties.

Key Takeaways for Developers

Developers should view this decision as a reminder to focus not only on regulatory and permitting compliance but also on neighboring-property impacts.

Some practical lessons include:

• Document noise, dust-control, and stormwater-management efforts
• Investigate complaints from neighboring property owners and occupants promptly
• Engage with neighboring property owners early in the development process
• Recognize that tenants and occupants, not just property owners, may have standing to bring nuisance claims in certain circumstances

Bottom Line

Newsom is only an initial procedural ruling, not a determination that Amazon is liable. But it sends a clear signal that Virginia courts are willing to entertain nuisance claims arising from large-scale data center construction when neighbors plausibly allege substantial interference with their property rights.

For developers, owners, and contractors, the case is a reminder that successful projects require more than permits and approvals. Managing the impact on neighboring properties may be just as important as managing the project itself.

Just as paper cannot refuse ink, the order itself cannot stop physical violence. The order can ban violent acts and punish violations, but it cannot physically stop someone determined to cause harm.

This is not meant as a criticism of courts or judges. It simply shows that orders of protection should be the first step in keeping victims safe, not the last. Unfortunately, that is often the case. The order is issued, but the abuse continues – because it cannot be stopped without putting the offender in jail. And on many occasions, the offender does more than just continue the abuse.

Most domestic violence homicides come with warning signs. These can include increasing control, stalking, threats to kill, strangulation, access to guns, prior assaults, and violations of court orders. The period immediately after separation or a court action is especially dangerous, as abusers may feel they are losing control.

The main question, therefore, is not whether New York should continue issuing orders of protection — they are clearly needed. The real issue is whether a Temporary Order of Protection in high-risk cases should automatically trigger additional protective measures.

This issue is not theoretical.

In April of this year, Tomeka Kamwani, a 41-year-old New Jersey nurse and mother of four, reportedly obtained a temporary restraining order after her former fiancé followed her to a friend’s residence. According to her family, he repeatedly violated the order. Court records reported by NJ.com indicate that he was subsequently charged with burglary, terroristic threats, criminal mischief, and simple assault after allegedly breaking into her home and assaulting her. A request to detain him pending trial was denied. Weeks later, according to her family, he entered her home, shot her three times, and then killed himself while two of her children were present. See Matt Gray, N.J. Nurse Killed by Ex-Fiancé in Murder-Suicide Weeks After Getting Restraining Order, Family Says, NJ.com (Apr. 2, 2026), republished by Yahoo News; Shawnette Wilson, Vigil Held for Swedesboro Nurse and Mother of Four Killed in Suspected Domestic Violence, FOX 29 Philadelphia (Apr. 3, 2026).

In another case in April of this year, Victoria Alexander, also a New Jersey nurse, was killed at her workplace in Egg Harbor Township. Prosecutors report that her estranged husband blocked her car, left suicide notes, pursued her into her workplace, shot her multiple times, and then took his own life. The Atlantic County Prosecutor described the incident as “a tragic and deliberate act of domestic violence.” See Stephen Sorace, New Jersey Nurse Gunned Down at Work by Estranged Husband in Murder-Suicide: Police, Fox News (Apr. 14, 2026); EHT Nurse Killed in “Tragic and Deliberate Act of Domestic Violence,”, BreakingAC (Apr. 14, 2026).

Despite differences in location and procedure, both cases reveal a common failure: warning signs were evident before the fatal incidents.

New York’s Strong but Reactive Framework

In the United States, matrimonial property is primarily governed by state law, rather than a single federal regime. States generally follow either a community property or equitable distribution system.

Therefore, the first step is to identify the court hearing the dispute and examine that state's choice-of-law rules. Those rules determine whether the court will apply its own law or the law of another state or country.

Factors that may be relevant include the spouses' domicile, matrimonial residence, the place where property is acquired, the location of the property, and the parties' intentions.

After identifying the potentially applicable law, the assets must be classified. Property may be treated as separate property or marital/community property depending on the governing law.

Important questions include:

• Was the asset acquired before or during the marriage
• Where were the spouses domiciled when it was acquired
• Where is the asset located
• Was it inherited or received as a gift
• Was separate property mixed with marital funds
• Is there a prenuptial or postnuptial agreement

Real estate can require particular attention because the law of the property's location may have a significant role.

In a community-property state, qualifying property acquired during marriage is generally treated as belonging to the marital community, subject to state-specific exceptions.

In an equitable-distribution state, marital property is divided according to principles of fairness rather than necessarily divided equally.

Some community-property states also recognize concepts such as quasi-community property, which can affect property acquired while the spouses were living elsewhere.

A valid prenuptial or postnuptial agreement can significantly affect the analysis. Such an agreement may specify how property will be characterized and may contain a choice-of-law provision.

However, the agreement must satisfy applicable requirements for validity and enforceability. In an international marriage, it is therefore important to consider not only where the agreement was signed, but also which jurisdiction's laws may govern it.

Determining the matrimonial property regime in an international marriage is essentially a choice-of-law and property-classification exercise. The place of marriage is only one consideration. Domicile, the matrimonial home, the location and timing of asset acquisition, applicable state conflict-of-laws rules, and marital agreements may all influence the result.

Because U.S. matrimonial-property law varies significantly from state to state, an international couple should identify the potentially applicable jurisdictions and obtain advice before assuming that one country's or state's property regime governs the entire marital estate.

 The case never reached the merits. The Copyright Act requires that infringement claims be filed within three years of when the copyright owner discovers, or reasonably should have discovered, the infringement. The Second Circuit affirmed dismissal on statute of limitations grounds, rejecting Hayden's argument that constructive discovery requires a plaintiff to have actual knowledge of specific triggering facts before the clock starts running. The court clarified that constructive discovery turns on a fact-intensive, objective inquiry into whether a reasonably diligent copyright holder, given all the surrounding circumstances, should have uncovered the infringement. Applying that standard, the panel found the answer here was obvious: Hayden lived in Italy for nearly three decades, was fluent in Italian, consumed Italian news daily, had a direct professional relationship with Staller, and was present in Italy during the very Biennale that made Koons internationally famous, with Staller prominently featured. The court was careful to note that its ruling does not create a "celebrity privilege" that automatically starts the limitations clock whenever a famous artist is involved. Fame is one factor among many, not a categorical rule.

The practical lesson for copyright owners is sobering. A rights holder who ignores widespread, international coverage of allegedly infringing work does so at significant legal peril, regardless of whether they actually saw that coverage. Hayden's claim failed not because he sat on a known injury, but because the court concluded a reasonably diligent person in his position could not plausibly have missed it.

While no one enters a marriage expecting divorce, addressing these issues in a prenuptial agreement can provide clarity, reduce conflict, and protect both parties from emotionally and financially costly disputes.

Unlike bank accounts or real estate, frozen embryos occupy a unique legal and ethical space. They represent both reproductive potential and significant emotional investment. When a relationship ends, former spouses may disagree about whether embryos should be used to attempt a pregnancy, donated to another individual or couple, donated for scientific research, or destroyed.

These disagreements can become some of the most difficult issues courts face in divorce proceedings because they involve competing interests in reproductive autonomy.

A carefully drafted prenuptial agreement may include provisions that outline the parties' intentions regarding embryos created before or during the marriage.

For example, the agreement may specify:

• Who will have decision-making authority if the marriage ends
• Whether embryos may be used only with the consent of both parties
• Whether one spouse waives any future claim to use the embryos
• Whether the embryos will be donated or discarded if the parties cannot agree
• How expenses related to storage will be handled

Although the enforceability of these provisions depends on state law and the specific facts of the case, documenting the parties' intentions before a dispute arises can be valuable.

Divorce often involves heightened emotions. Without prior agreement, decisions about frozen embryos may become lengthy and expensive legal battles.

Discussing these issues before marriage offers several benefits:

• It encourages open communication about future family planning
• It helps both parties understand each other's expectations
• It reduces uncertainty if circumstances change
• It may minimize litigation and legal costs

Having these conversations while both parties are working together is often far easier than attempting to resolve them during a divorce.

Laws governing embryo disputes vary significantly from state to state. Some courts place substantial weight on prior agreements between the parties, while others balance competing constitutional and public policy interests. In addition, fertility clinic consent forms may also play an important role in determining what happens to stored embryos.

Because the legal landscape continues to evolve, couples should work with an experienced family law attorney and, when appropriate, coordinate with their fertility clinic to ensure their agreements are consistent and as effective as possible under applicable law.

A prenuptial agreement is more than a tool for protecting financial assets. For couples pursuing or anticipating assisted reproductive technology, it can also provide a thoughtful framework for addressing one of the most personal decisions they may ever face.

Planning for the future does not reflect a lack of commitment to the marriage. Instead, it reflects careful communication, informed decision-making, and respect for each person's reproductive rights. By addressing the disposition of embryos before conflict arises, couples can reduce uncertainty and focus on building their future together with greater confidence.