Family Law
When “I Do” Turns Into “You Owe”
Marriage is a partnership — but under the Internal Revenue Code, it is also a financial alliance with serious consequences. Only spouses can file a joint tax return under I.R.C. § 6013(a). And when they do, they are jointly and severally liable for the full tax bill. Not half; not a proportional share; but the whole thing. If taxes aren’t paid, the IRS can track down or sue either spouse for 100% of the debt. For many couples, filing jointly offers lower taxes. But when a return has errors, omissions, or unpaid balances, a joint filing can suddenly become a source of unintentional, and profoundly unfair, exposure. Innocent Spouse Relief enables a “requesting spouse” to obtain relief from tax obligations that rightfully belong to the other spouse. I.R.C. has three pathways for relief. § 6015: (i) Traditional Relief; (ii) Separation-of-Liability Relief; and (iii) Equitable Relief. With each of these paths, however, there is a threshold rule: there must be a joint return. Traditional Relief Traditional relief is appropriate when a joint return includes an understated tax liability resulting from errors made by the other spouse’s unreported income received or improper deductions or credits claimed. In the real world, scenarios can be shockingly audacious: the deduction of business expenses never paid; nondeductible state fines disguised as business write-offs; and personal pet costs described as “home office security.” To be eligible, the requesting spouse must demonstrate that they didn’t know and had no reason to know about the understatement when they signed the return and that it would be inequitable to hold them responsible for 50% of the liability. Traditional relief is an issue for the spouse who legally signed the return in good faith and did not know the numbers were erroneous. The alleged innocent spouse running around using the other spouse’s corporate credit card to pay for household groceries, children’s clothing, and private school tuition can claim to be “innocent.” The request for Traditional relief typically must be made within two years of the IRS beginning collection activity. Separation-of-Liability Relief Separation-of-Liability Relief can be used by spouses whose marriage is ending or has ended. For this relief, a spouse wishing to claim is required to be divorced, legally separated, or widowed; have lived apart from the other spouse for at least 12 months before filing the request. The timing for relief under Separation-of-Liability Relief matters, too. The election must be made within two years of the start of collection activity by the IRS. The IRS can use Separation-of-Liability Relief to appropriately and equitably allocate the deficiency between the spouses based on who was responsible for its occurrence. Equitable Relief Sometimes, a spouse doesn’t qualify neatly under the technical rules of Traditional or Separation-of-Liability Relief. Equitable relief is available for hard, more human situations where the rules lack the flexibility to capture unfairness. To be eligible, the requesting spouse needs to have filed a joint return, be ineligible under the other two provisions, file a timely claim (generally within the 10-year collection period), not been involved in fraud, and not engaged in fraudulent asset transfers. Equitable relief exists even if a piece of liability is technically attributable to the requesting spouse, especially in situations involving abuse, financial control, or coercion. The IRS assesses all facts and circumstances, no single factor prevails. Marital status Economic hardship Knowledge or reason to know the tax would not be paid Legal obligations in a divorce decree Whether the requesting spouse significantly benefited Subsequent tax compliance Mental or physical health In cases of abuse, especially when a spouse controlled finances or instilled fear of retaliation, the scales can tilt heavily in favor of relief. Conclusion A joint tax return is not a piece of paper. It’s a legal imperative with actual repercussions. It's a wise financial move to consider. For some, it becomes an unpredictable liability tied to acts they didn't take in the first place and sometimes didn't even know were possible. Innocent Spouse Relief is there to correct that. It understands that fairness is important. And under good circumstances, it offers a powerful remedy for those who signed in trust but were stuck with the bill. Marriage can be shared, but injustice does not have to be.
April 21, 2026
Landlord Representation
Avoiding FLSA Pitfalls When Offering Onsite Housing and Rent Discounts
Onsite housing and rent discounts are common benefits in the property management industry, but federal wage-and-hour litigation makes clear that these arrangements can create significant Fair Labor Standards Act (FLSA) exposure if they are not carefully structured. The central question courts ask is not how the benefit is labeled, but whether onsite living primarily benefits the employer and whether it results in unpaid or underpaid work. When housing benefits blur into compensation or operational control, employers face heightened risk of overtime liability, off‑the‑clock claims, and retaliation allegations. Keep Housing Truly Voluntary Housing benefits pose the least FLSA risk when employees are free to live onsite by choice rather than necessity. Requiring onsite residence as a condition of hire or continued employment strongly suggests that the arrangement exists for the employer’s benefit. Employers should ensure that employment offers, policy documents, and actual practices make clear that living onsite is optional and that declining housing has no effect on wages, scheduling, or job security. Separate Housing Benefits from Compensation Rent discounts must remain clearly distinct from wages. When discounts vary by job title, seniority, or responsibility, courts are more likely to view the housing as compensation rather than a fringe benefit. Uniform discounts—or discounts that are demonstrably unrelated to performance or availability—are easier to defend. Employers should avoid structuring housing benefits in ways that resemble pay incentives or substitutes for overtime compensation. Avoid Creating Implicit On‑Call Obligations Employees who live onsite are often perceived—by management or by tenants—as naturally available after hours. Even absent a formal on-call policy, this expectation can give rise to compensable work time. Employers should clearly define work hours, limit after-hours requests, and avoid relying on employees’ proximity as a substitute for staffing. Where on-call work is required, it must be clearly documented and compensated in accordance with the FLSA. Use Arms-Length Leasing Practices Treating employee residents the same as non-employee tenants reinforces the non-compensatory nature of housing benefits. Requiring standard rental applications, background checks, and lease agreements supports an arms-length relationship and reduces the argument that housing is a condition or incident of employment. Special treatment, guaranteed units, or waived leasing requirements undermine that distinction. Pay for All Time Worked—Including After Hours After-hours responses to maintenance calls, tenant complaints, or emergencies frequently constitute compensable work time. Employers should implement reliable timekeeping procedures that allow employees to record this work and should train supervisors to avoid discouraging accurate reporting. Failure to capture and pay for after-hours work remains one of the most frequent sources of FLSA liability in the property management context. Evaluate Whether Rent Discounts Affect the Regular Rate When onsite living primarily benefits the employer—by ensuring immediate coverage, enhanced security, or continuous availability—the value of a rent discount may be required to be included in the regular rate of pay for overtime calculations. Employers should evaluate housing arrangements holistically and seek legal guidance before excluding rent discounts from overtime calculations, particularly where onsite residence is expected or strongly encouraged. Bottom Line Onsite housing can be a lawful and effective benefit, but only when it functions as a voluntary perk rather than an operational necessity. When housing is mandatory, compensation-linked, or tied to unpaid availability, FLSA risks increase substantially. Careful program design, clear policies, and consistent compensation practices are essential to minimizing wage-and-hour exposure.
April 20, 2026
Understanding Pleading Technicalities Under the DC Rental Act
In Episode 3 of The DC Rental Act in Three Minutes, Offit Kurman attorneys Robert Donahue and Brian Dorwin break down one of the most consequential—and least understood—changes in the new law: how courts handle pleading technicalities. They explain that, under the prior legal framework, any defect in a filing—no matter how small—required the court to dismiss the case. A missing attachment, an outdated form, or a minor clerical error could derail a case at any stage, including on the morning of a jury trial after months of preparation. This rigid “shall dismiss” standard created costly delays and forced landlords to restart cases from scratch for issues that often had no impact on the merits. The Rental Act fundamentally reshapes this process. Judges now have discretion to determine whether a defect actually causes prejudice to either party. Instead of automatic dismissal, courts may allow amendments or permit the case to proceed when the issue is minor—such as a decade‑old RAD form with a technical flaw. For landlords, this means fewer restarts, fewer duplicative filings, and more efficient resolution of disputes. Robert and Brian emphasize that this shift—from shall dismiss to may dismiss—is one of the most practical improvements in the statute. It empowers judges to apply common sense, reduces unnecessary litigation costs, and allows attorneys to advocate more effectively when technical issues arise.
April 17, 2026
Labor and Employment
Responsible AI in HR Starts with Transparency and Trust
Artificial intelligence (AI) is increasingly positioned as a tool to help businesses better understand workforce trends, predict retention risk, and improve performance. Yet from the employee perspective, these same tools can feel intrusive. AI systems often pull sensitive data directly from HRIS platforms including, personal information, performance metrics, engagement signals, communications, and behavioral indicators. Without clear communication, employees may be left wondering what data is being collected, how it is being interpreted, and whether it could be used against them. In this context, transparency is essential: employees should understand not only what data is gathered, but why it is necessary and how it benefits both the business and the workforce. Employers, meanwhile, face their own set of risks. Many AI-driven workforce tools rely on third-party vendors, raising important questions about data ownership, retention, and security. Is employee data being stored indefinitely? Is it being used to train models beyond the scope of the employer’s relationship with the vendor? These concerns make careful contract review critical, particularly around data usage rights, confidentiality, and security safeguards. A practical guiding principle is data minimization: if data is not essential to achieving a clear business purpose, it should not be collected. Excessive data collection can increase legal and regulatory exposure without delivering proportional value. Ultimately, the issue of AI-driven employee monitoring extends beyond compliance to governance, risk management, and organizational trust. When employees believe they are being surveilled without sufficient guardrails and transparency, morale can erode and retention risks can grow. Businesses that use AI responsibly limit data collection and communicate openly with employees are better positioned to maintain employee confidence and foster a culture where technology supports, rather than undermines the workforce.
April 16, 2026
Labor and Employment
Jury Awards Employee $22.5 Million For Employer’s Improper Denial of Pregnancy Accommodation Request
When dealing with injured, sick, or pregnant employees, employers must exercise extreme diligence when denying an accommodation request; it is not as clear-cut as it might appear. The courts (and juries) tend to favor employees. Employers are simply playing with Fire with a capital “F” if an accommodation is denied without first consulting with experienced labor counsel. Take the Ohio state court case discussed below. On March 18, 2026, an Ohio jury awarded an employee $22.5 million dollars for her wrongful death claim against her employer for the loss of her child arising from the denial of her request for a pregnancy-related work accommodation. The jury found that the employer’s initial denial, of only two days, from her work-from-home request, was a substantial factor resulting in her baby’s death. The employee, a fairly new claims associate for a logistics company, was prescribed bed rest by her doctor after she suffered a serious complication related to her pregnancy; this was not in dispute. When she requested a temporary work-from-home accommodation, as was allowed to others, and provided supporting medical documentation, the company denied the request. Instead, it placed her on unpaid leave of absence. Because she and her family depended upon her paycheck and continued medical benefits, she was unwilling to forgo any paychecks and the employee quickly returned to in-office work. At the end of her second day, after the work-from home-denial, the employer reconsidered and said she could work from home. However, unfortunately, that night, after the second day of in-office work, she suffered severe medical complications resulting in her child being born too early; six hours after being born, her baby girl died. The employer’s counsel, we believe, of course, with hindsight, chose a disingenuous defense strategy that obviously offended and inflamed the jury, resulting in the huge verdict. Employer’s counsel conflated the employee having her mother drive her to work so she could ask her supervisor if she could work from home (which the supervisor said she could) and to pick up her computer so she could work at home, by saying she came to work and worked that day of her own volition. Then, when the human resources department overruled the supervisor and denied the employee’s request to work-from-home, it placed her on unpaid leave. When the employee, needing her pay and medical benefits, felt she had to come into work, the employer’s counsel faulted the employee for coming into the office rather than staying on unpaid leave. It became clear that the employer made an error and wrongfully considered the employee’s request as one for unpaid leave of absence. The baby’s estate filed a wrongful death lawsuit in February of 2023: Larkin v. Total Quality Logistics, LLC, (Hamilton County, Ohio). There is no reported decision, and the above alleged facts have been assembled from copies of the complaint and motions filed in the case; it will likely be appealed. We highlight this extreme case because it shows the real danger and consequences of the improper handling of an employee’s good-faith request for a reasonable work accommodation. If the employee suffers physical harm as a result of the denial, or even the unreasonable delay in approval, the employer may be on the hook not only for lost wages, but also the damages that flow from the denial/delay, including wrongful death, medical bills and costs, and pain and suffering. As this employee was relatively new and did not appear to even qualify for FMLA leave, which is unpaid leave, the employer was offering a leave of absence instead of allowing the employee to work from home. However, she had other causes of action under federal and state law. Under the Americans with Disability Act (ADA), 42 U.S.C. §12101 et seq., the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq. and the Pregnant Workers Fairness Act (PWFA), 42 U.S.C. 2000gg et seq., covered employers are required to assess, through an interactive process with a covered employee, whether a suggested accommodation may allow an employee to fulfill their required job duties in a manner least burdensome on the business. To legally justify denying a reasonable accommodation request, an employer must demonstrate the accommodation would impose an undue hardship, meaning a substantial cost or difficulty, as determined by factors such as the nature and cost of the accommodation, the employer’s financial resources, and the impact on business operations. An employer does not have to create a new position for the employee, but where the disabled/pregnant employee could perform the essential functions of the job by working from home, an employer (especially a large employer, as this was) will have a difficult time justifying a denial. This case serves as a reminder that the stakes of these employment decisions are very high, and mistakes can lead to drastic consequences for both employee and employer. Employers should review employee job descriptions for accuracy and train supervisors on the accommodation process and what is required under the ADA, FMLA, and PWFA. As always, documentation is key. Experienced labor and employment counsel can help successfully navigate this process and should be contacted as soon as there is any discussion about the denial of an accommodation. A short phone call or two (or emails) with labor counsel before a denial could greatly increase the chances of avoiding liability, six figures of attorney’s fees, and serve to avoid harming an employee and his/her family.
April 16, 2026
Mergers and Acquisitions
M&A Nuggets: Take It Personally - It's Goodwill
A common quandary facing sellers taxed as C corporations is the double tax that will result from a sale structured as an asset purchase — one level of tax to the corporation on the sale of its assets and a second level of tax to the stockholders on distribution of the net proceeds from the sale. This double tax can equal close to 50% of the total purchase price. The best way to avoid the double tax is to convince the purchaser to engage in a stock sale. That, however, is not always possible. In that case, serious consideration should be given to whether a portion of the purchase price can be allocated to the personal goodwill of the seller’s owners, as opposed to company goodwill. Any part of the purchase price allocated to personal goodwill will be subject to one level of tax. An additional benefit to the seller is that amounts allocated to personal goodwill are subject to capital gains tax rates. From the purchaser’s viewpoint, it can deduct amounts attributed to personal goodwill over 15 years, which is the same result as with amounts allocated to company goodwill. Personal goodwill is the goodwill of the individual owner of the seller that results from the person’s unique expertise, reputation or relationship with vendors and/or customers. Personal goodwill does not exist in every business. Before agreeing to an allocation to personal goodwill, an analysis should be made to determine the likelihood that the allocation will withstand any challenge by the Internal Revenue Service. The most quoted personal goodwill legal case involved a distributor of ice cream products who sold part of his business to Häagen-Dazs. In that case, the court recognized that the most valuable asset of the business was the owner’s business relationships with the business’s customers; the success of the business depended entirely on the owner. Another important factor was that the owner did not have a non-compete agreement. The court held that the owner, not the company, sold his assets to Häagen-Dazs. If the factors identified by the court in the Häagen-Dazs case apply and personal goodwill exists, a seller can obtain a significant tax benefit. That would be a very nice dessert on top of the main event of the business sale.
April 16, 2026
Immigration Law
Understanding the EB 5 Program’s Critical Deadlines: What Investors Need to Know
The EB‑5 Immigrant Investor Program continues to be one of the most reliable pathways for families seeking permanent residency in the United States through investment. But with the passage of the EB‑5 Reform and Integrity Act (RIA), timing has become more important than ever. Two key dates—September 30, 2026, and September 30, 2027—now shape the strategic landscape for investors. Understanding the difference between these deadlines can help you protect your immigration process, secure your place in line, and avoid unnecessary risk. History of the EB‑5 Immigrant Investor Program The EB‑5 Immigrant Investor Program was created by Congress in 1990 to stimulate the U.S. economy through foreign investment and job creation, offering eligible investors and their families a path to permanent residency in exchange for investing in a new commercial enterprise that creates at least 10 full‑time U.S. jobs. In 1992, Congress introduced the Regional Center Program, allowing investors to participate in pooled, federally designated projects and count indirect job creation, which dramatically expanded the program’s reach and popularity. Over the decades, EB‑5 has undergone significant reforms, most notably the 2022 EB‑5 Reform and Integrity Act, which modernized oversight, increased investment thresholds, and introduced strong integrity measures. September 30, 2026, Grandfathering Deadline Under the RIA, any EB‑5 Regional Center petition filed on or before September 30, 2026, receives powerful “grandfathering” protection. This means: USCIS must continue processing your petition even if the EB‑5 Regional Center Program expires in the future Your case remains valid under the rules in place at the time of filing You are shielded from political uncertainty, program lapses, or regulatory changes that could otherwise disrupt your immigration process For many families, this date represents the safest window to file. Submitting an I‑526E petition before the 2026 deadline locks in today’s requirements and ensures your case cannot be altered by future program interruptions. September 30, 2027, Program Authorization Deadline The EB‑5 Regional Center Program is currently authorized through September 30, 2027. Investors may still file after the 2026 grandfathering deadline and before the 2027 program expiration. However, filings made between October 1, 2026, and September 30, 2027, do not receive the same guaranteed protection. If Congress fails to reauthorize the program after 2027: Petitions filed after September 30, 2026, may be paused or left unprocessed Investors could face delays, uncertainty, or the need to refile under new rules Investment thresholds or program requirements could change In short, you can file until 2027, but only filings made by 2026 are guaranteed protection. Why Investors Should Act Before 2026 Filing before the September 30, 2026, grandfathering deadline offers several advantages: Guaranteed case processing, regardless of future political developments Earlier priority dates, which matter for investors from backlogged countries Protection from future rule changes, including potential increases in investment amounts Reduced risk of delays caused by last‑minute filing surges Given the long‑term nature of the EB‑5 process, securing stability early is often the most prudent choice. Investment total increases and potential fee increase in 2027 January 1, 2027, is another critical date for potential EB-5 investors, as at that point, the USCIS can increase the investment totals under RIA. In addition, new fees and changes to the program are also possible. What This Means for You If you are considering the EB‑5 program, the next 18–24 months represent a uniquely important window. Filing before the 2026 deadline provides the strongest legal protections available under current law. Filing after that date remains possible but carries more uncertainty. Whether you are just beginning your EB‑5 journey or evaluating project options, now is the time to understand your timeline and prepare your strategy.
April 16, 2026
Commercial Litigation
Developments in IEEPA Refund Litigation
Through multiple court filings, the U.S. Customs and Border Protection (CBP) and the U.S. Court of International Trade (CIT) have identified significant updates affecting importers seeking refunds of additional ad valorem duties imposed under the International Emergency Economic Powers Act (IEEPA). These developments signal meaningful progress toward a structured refund process, while also highlighting critical compliance steps importers must take now to preserve potential recovery. CBP Update: CAPE Refund Functionality Progress CBP continues to develop a new refund-processing capability within the Automated Commercial Environment (ACE) collections framework, officially named the Consolidated Administration and Processing of Entries (CAPE). This system is designed to automate and streamline the administration of IEEPA-related duty refunds. As of March 19, 2026, CBP reported the following progress: Claim portal: 73% complete Mass processing: 45% completeOngoing development includes ACE validations and event history tracking Review and liquidation/reliquidation: 80% complete Refund processing: 63% complete Once implemented, CAPE is expected to significantly improve efficiency, with CBP estimating a reduction of over 4 million labor hours compared to manual processing. The system is intended to facilitate more timely and accurate refunds for importers. CIT Update: Continued Stay and Guidance on Entry Status On March 20, 2026, the CIT issued an order continuing its prior stay (initially imposed March 4, 2026) and provided further clarification regarding treatment of entries. CBP is directed to reliquidate: Unliquidated entries; and Entries liquidated but not yet final (i.e., within 90 days of liquidation) For entries approaching or within the 180-day protest window:The CIT emphasized that importers "should be aware" of available protest remedies (under 19 U.S.C. § 1514(a)) Scope Expansion:The court amended its prior orders to encompass all IEEPA duties imposed, including those on imports from Brazil and India Notably, the CIT did not resolve whether refunds will be available for entries that are already liquidated and beyond the 180-day protest deadline, where a protest was not filed. It is important to note that the implication before this order indicated that liquidation dates were no longer relevant, however the court’s specific reference to 19 U.S.C. § 1514(a) seems to signal that failure to file a protest COULD result in forfeiting your claim. Therefore, get documents early, and file the protest if you are within the 180-day window to avoid uncertainty. Ultimately, it is a “belt and suspenders” remedy that is worth the extra time. Key Takeaways for Importers Categorize Entries Immediately The availability of refunds may depend on the liquidation status of entries. Importers should promptly identify and classify entries into the following categories: Unliquidated entries Entries liquidated within the 180-day protest period Entries liquidated beyond 180 days:With a filed protest Without a properly filed protest Current law generally provides: CBP may reliquidate within 90 days of liquidation Importers may file protests within 180 days After 180 days, liquidation is typically considered “final and conclusive” Accordingly, entries beyond the protest period may face significant barriers to recovery. Prepare for CAPE by Confirming Electronic Refund Capabilities on the ACE Portal CBP’s Interim Final Rule on Electronic Refunds (effective February 6, 2026) requires that all refunds be issued electronically. Despite approximately 330,000+ importers having paid IEEPA duties or deposits, only about 21,400 entities had completed electronic refund setup as of early March. CBP has already been unable to process 7,700 refunds for nearly 2,900 importers due to incomplete or improper setup. Important to Note Refund claims will be rejected if the importer has not enabled electronic refund capability in ACE. Importers should immediately confirm: ACE portal access Banking and payment configurations Coordination with customs brokers, where applicable Access the Electronic Refund Enrollment in CBP's ACE Portal here. Looking Ahead CBP’s CAPE system represents a major step toward modernizing the refund process for IEEPA duties, but key legal and procedural uncertainties remain, particularly regarding entries that may already be final under U.S. customs law. In the near term, importers should prioritize entry review and classification, preservation of protest rights where applicable, and completion of ACE electronic refund setup.
April 15, 2026
Commercial Litigation
When Small Disputes Become Big Lawsuits — and How to Avoid Them
Lawsuits don’t just appear out of thin air. They begin as ordinary disagreements that, with the right handling, can, and should, often be resolved quickly. But once litigation is filed, particularly against someone who did not choose the fight, even a “simple” dispute can escalate far beyond its original scope. A recent matter illustrates this issue. What began as a delay in closing on the sale of an investment property, typically a straightforward transaction, quickly spiraled when the other side refused to negotiate and instead filed suit. Once litigation began, control shifted immediately. A third party was involved, attorney’s fees became an issue, and what should have remained a limited dispute turned into multiparty litigation with rising costs and complexity. At that point, the defendant had no ability to simply walk away. How Could This Have Been Prevented? One of the most misunderstood aspects of litigation is once a lawsuit is filed, defendants generally cannot unilaterally end it. Even weak or disproportionate claims require a formal response, legal expense, and tolerance for uncertainty. Delay for its own sake becomes leverage, particularly when one side can impose costs without bearing them equally. As communication breaks down, distrust grows, and positions tend to harden rather than soften. Several steps could have prevented this dispute from escalating, with early engagement being critical. Transparency about contributing factors and consistent documentation of communications would have reduced uncertainty and suspicion. Even though the underlying issue could not be immediately resolved, a solutions‑oriented dialogue focused on timing, contingencies, or limited accommodations might have preserved trust. Instead, silence and rigid positioning filled the gap, creating space for assumptions that ultimately drove the decision to litigate. There are common warning signs that a manageable disagreement is becoming something more dangerous: Communication may slow and then stop altogether Deadlines are ignored or used strategically Tone shifts from cooperative to adversarial Demands become rigid rather than exploratory Positions are framed in absolutes rather than options Recognizing these red flags early creates an opportunity to intervene before litigation becomes the default, not because it is the best solution, but because it feels like the only one left. In this case, progress came only after the focus shifted away from fault and toward risk, cost, and practicality. Once all parties understood what continued litigation meant, namely the expense, time commitment, and uncertainty of trial, the dialogue reopened. That reframing made it possible to resolve the dispute without going to court, an outcome none of the parties truly desired and one that would not have materially benefited anyone. The outcome did not turn on who was right. It turned on what made sense. The Takeaway Small disputes rarely explode overnight. They escalate through silence, an insistence on being “right,” and missed opportunities for early, practical resolution. For defendants who cannot simply dismiss a case at will, early engagement and a clear‑eyed assessment of real‑world consequences are often the most effective tools to prevent a manageable dispute from becoming something far larger than it ever needed to be.
April 15, 2026
Estates and Trusts
LGBTQ+ Estate Planning —A Tale of Two Couples
Chris and Jason would never leave anything to chance. They ordered their movie tickets online in case the show sold out before they got to the theater. They always bought travel insurance, on the off chance their vacation plans didn’t pan out. They flossed daily, replaced smoke-detector batteries annually, and changed their furnace filters every six months. Their friends Bill and Trevor often teased them about being so conscientious. But then Bill and Trevor took a different approach to life. When Bill got a flat tire and needed to use the spare, he discovered that it was flat, too. They once ran out of heating oil because Trevor forgot to order more. And they still laugh about the time they missed their cruise ship departure after enjoying one too many rum swizzles at a pub in Bermuda. These differences extended to the way they approached estate planning, too. Chris and Jason went to an estates and trusts attorney who was a fellow member of the LGBTQ+ community. After getting to know them, the attorney prepared wills that left everything to the survivor in case Chris or Jason died. He also drafted a power of attorney and advance healthcare directive for each of them. These documents would be essential, the lawyer explained, if Chris or Jason became incompetent and needed the other spouse to manage his finances or health care. Chris and Jason knew this paperwork was important and were glad to have it prepared by a professional. What they didn’t know was that there was more to estate planning than that. The lawyer included language in their documents to cover their digital assets—things like frequent-flyer miles, social media accounts, and online shopping. The lawyer had them make an inventory of these assets, including their usernames and passwords, so the other spouse could access them if necessary. The inventory even included passwords for things like their laptops, smartphones, and iPads. They were also told to make sure the beneficiaries on their life insurance and retirement accounts were up to date to replicate the provisions in their wills. Once the documents had been signed, Chris and Jason slept better. They knew they were as ready as they could be for whatever lay ahead. Bill and Trevor, by contrast, did none of these things. They hadn’t gotten married or registered as domestic partners, thinking that having “a piece of paper” wouldn’t improve their relationship. They had been meaning to get wills but thought the process would be difficult and expensive. They also didn’t want to think about the worst-case scenarios an estate plan was meant to cover. Then the unexpected happened. On a rainy Sunday afternoon, Bill’s car skidded off a slippery road and into a tree. His death was instant, and Trevor was suddenly faced with the very scenario he had been so reluctant to confront. Because he had no will, Bill’s estate passed through “intestacy.” This meant that as an unmarried partner, Trevor inherited none of Bill’s assets, except the house they owned jointly. Surprisingly, his car and bank accounts went to Bill’s mother. Bill had failed to name a beneficiary on his IRA, and because he and Trevor had never married, the money went to Bill’s estate. This meant that Bill’s mother also received this substantial asset. Bill had life insurance through his job, but he had set it up before he and Trevor met. The beneficiary was Bill’s ex-boyfriend, so Trevor was entitled to none of the payout. To add insult to injury, Trevor had no way to access Bill’s laptop or iPad, which were both password-protected, or to listen to the messages that friends had left on Bill’s phone when they heard about the accident. It has been said that hindsight is always 20/20. If Bill and Trevor could start over, what would they do differently? They still might have stayed for that extra rum swizzle at the pub in Bermuda—that made for a good story. But they would definitely have called their friends’ lawyer and had him prepare an estate plan for the two of them, rather than leave anything to chance.
April 15, 2026
Intellectual Property
Spring Cleaning Your Trademark Portfolio: A Plain-English Guide for In-House Teams
Most companies accumulate trademark assets gradually and unevenly. New products are launched, old brands linger, and registrations are filed opportunistically rather than strategically. Over time, the portfolio reflects history more than the current business. For in-house counsel, this creates a familiar challenge. The company technically owns trademark rights, but it is often unclear which marks still matter, which are vulnerable, and which quietly create risk. A portfolio that appears “complete” on paper can hide gaps, inconsistencies, and inefficiencies that surface at the worst possible moment: during enforcement, diligence, licensing, or an international expansion. Spring provides a useful opportunity to take stock. The goal is not to rebuild the portfolio from scratch; it is to bring it back into alignment with how the business actually operates. This kind of annual review helps ensure that legal protection supports the company’s current operations and future plans rather than merely documenting past decisions. Do Your Core Marks Still Reflect Actual Use Trademark rights are tied to use, not intention. Branding evolves. Logos are refreshed, taglines change, and product names drift. Registrations often lag behind these shifts. The risk is not that branding has evolved. The risk is relying on registrations that no longer reflect what customers actually see in the market. When a registration does not match current usage, enforcement becomes more difficult, and internal teams may assume protection exists where it is uncertain. A basic review should confirm that the most important marks are being used in substantially the same form as registered. It should also check that the listed goods or services accurately describe the current business. Marks that are materially altered, extended beyond their registered scope, or used in ways not captured by the registration require attention. This step turns trademark oversight into a practical, operational exercise rather than a purely administrative task. Which Marks Are Still Worth Keeping Many portfolios contain registrations for discontinued products, legacy brands, or marks that were filed defensively and then forgotten. Every registration carries cost and maintenance obligations. Beyond the expense, unused or marginal marks can complicate enforcement strategy and raise questions during due diligence or audits. Spring cleaning is an opportunity to categorize the portfolio. Identify which marks are core to current business operations, which are legacy or historical, and which can be allowed to lapse without meaningful risk. This process helps focus resources where they matter most and avoids creating confusion for internal teams or third parties. Marks that are no longer strategically relevant can be retired deliberately, reducing administrative burden and clarifying enforcement priorities. Where Are the Coverage Gaps Business growth almost inevitably creates gaps. New products are launched under existing brands, services expand beyond their original scope, and companies enter new jurisdictions without confirming local protection. Gaps often remain invisible until a triggering event, such as a competitor conflict, a transaction, or an international rollout brings them to light. For in-house counsel, the goal is not to eliminate every potential gap. It is to understand where gaps exist, evaluate their significance, and determine whether they matter given near-term business plans. Some gaps may be acceptable if they pose minimal risk in the short term, while others require immediate action to preserve enforceable rights. Early awareness allows counsel to advise the business proactively rather than reacting to surprises later. Is Internal Usage Undermining Your Rights Even strong registrations lose value when internal usage is inconsistent. Teams may shorten, alter, or combine marks with other terms. Brand names are sometimes used as nouns or verbs. Third parties within the company or among partners may be permitted to use marks without clear guidance. None of this creates immediate failure. Over time, however, inconsistent or uncontrolled use can weaken distinctiveness and enforcement posture. Marks lose their legal strength if they are not used deliberately and consistently. A portfolio review should include a high-level assessment of whether the company is applying its most important marks intentionally, across products, marketing materials, packaging, digital channels, and communications. Ensuring consistent internal usage is often as important as confirming the technical legal status of the registration. Would the Portfolio Make Sense to a Third Party A useful thought experiment is to imagine a buyer, lender, or auditor reviewing the portfolio for the first time. Would the portfolio tell a coherent story about the business or raise questions that require explanation? Would the marks, filings, and strategic choices make sense in the context of current operations and future plans? Spring cleaning is less about perfection and more about narrative. A portfolio that clearly reflects current operations and priorities is easier to defend, easier to budget, and easier to explain in high-stakes settings. It signals to third parties that the company manages its brand assets deliberately, maintains consistent internal practices, and aligns legal protection with business strategy. For in-house counsel, this type of review does not require specialized trademark expertise. It requires judgment, prioritization, and coordination with business teams. Done annually, it reduces surprise risk, strengthens enforcement leverage, and makes downstream trademark decisions easier. It also provides a documented rationale for why certain marks are maintained, altered, or allowed to lapse, which can be invaluable during diligence, licensing, or strategic planning. Turning Review into Action The value of a portfolio review lies in translating findings into actionable steps. Examples of typical follow-up actions include: Confirming continued use and alignment of core marks with registrations Retiring or abandoning legacy marks that no longer support the business Flagging gaps that could affect new products, services, or international expansion Providing clear internal guidelines for consistent usage and escalation Prioritizing filings for marks that require additional protection or international coverage This does not need to be complicated. Even a lightweight process ensures that legal and business teams share the same understanding of which marks are critical, which are optional, and which require attention in the coming year. A Strategic Perspective for General Counsel Most general counsel do not need to manage every registration or conduct searches themselves. They do need to understand where risk accumulates quietly and intervene before it becomes material. Annual portfolio reviews place trademark oversight in a strategic context rather than a reactive one. They provide clarity on enforcement priorities, highlight potential risks, and align the portfolio with the company’s current business objectives. A clean, well-aligned portfolio preserves flexibility. It makes enforcement more straightforward, supports licensing and expansion, and provides confidence in transactions or audits. By establishing a structured, annual review process, general counsel will ensure that trademark assets function as living business tools rather than static records of past filings. The Objective of Spring Cleaning The objective is not perfection; it is awareness, alignment, and control. It is ensuring that the portfolio accurately reflects the business, highlights strategic priorities, and allows legal protection to support, not hinder operations and growth. When conducted annually, spring cleaning transforms the trademark portfolio from a collection of filings into a coherent, actionable asset that contributes to the company’s long-term value.
April 13, 2026
Landlord Representation
Deregulation Is Not Immunity: How Fragmented Federal Enforcement Is Reshaping Fair Housing Compliance
One of the most overlooked developments in 2026 is how enforcement has splintered across federal agencies—each operating independently of HUD’s policy posture. HUD’s rescission of numerous guidance documents and the federal government’s recalibration of civil rights priorities do not eliminate risk for housing providers. Instead, the landscape has shifted and spider-webbed across multiple agencies, a few of which are outlined below along with their impact on multifamily housing. HUD Office of Inspector General (OIG) HUD OIG operates under a statutory mandate untethered from HUD’s guidance priorities. Its recent semiannual report* reflects aggressive audit and enforcement activity, including: 64 administrative sanctions Over $219 million in questionable spending Nearly $600,000 recommended for better use of funds OIG audits routinely examine tenant files, eligibility determinations, and internal controls. Poor site-level documentation by housing providers can trigger repayment demands and referrals. Social Security Administration (SSA) The SSA has ramped up investigations into identity fraud in housing, issuing subpoenas and, in some jurisdictions, executing search warrants connected to benefit misuse and rental fraud schemes. Property management companies may soon find themselves caught in SSA investigations due to fraud perpetrated by applicants who use misappropriated or manufactured documents. Department of Homeland Security (DHS) and Immigration Verification HUD has recently proposed increasing citizenship and immigration verification requirements for occupants in federally assisted housing, seemingly, promptly after compiling a joint eligibility report with DHS. HUD’s February 2026 proposed rulemaking would require eligibility verification for all household members regardless of age, effectively ending prorated assistance for mixed‑status households. This push in enforcement carries serious fair housing risks. While housing providers must follow federal eligibility rules precisely, selective enforcement, retaliation, or national‑origin discrimination remain unlawful under the Fair Housing Act. Providers must ensure uniform application and airtight communications with residents. HUD’s Criminal Screening Rules Changed—The Risk Didn’t HUD’s withdrawal of several guidance documents—most notably its criminal screening and assistance animal guidance—reflects a policy shift, not a legal repeal. The Fair Housing Act (“FHA”) remains the governing statute and courts have previously upheld judicial decisions grounded in disparate impact, reasonableness, and evidentiary justification. Criminal screening remains one of the most common fair housing complaints, particularly because criminal history policies may disproportionately affect certain protected classes. However, HUD has formally rescinded its 2015–2022 criminal screening guidance, including its Office of General Counsel memoranda emphasizing individualized assessments and discouraging reliance on arrest records. In addition, HUD has signaled a renewed focus on safety in federally assisted housing and stricter enforcement of criminal activity at these properties (e.g., “one strike” rules). However, housing providers should not misread the recent rescission as a green light for blanket bans on criminal history. Courts, and state-level administrative enforcement agencies, continue to rely on the same legal frameworks that underpinned the rescinded guidance. Judicial decisions still reject universal criminal history bans, require a logical nexus between a criminal conviction and potential housing risk, and scrutinize whether a policy is necessary to achieve a legitimate interest. Providers that assume HUD’s silence equals judicial approval do so at their peril. Practical Considerations for Applicant Criminal Screening Avoid blanket exclusions based on “any conviction” Tie disqualifying convictions to specific, defensible housing risks Consider the offense severity and recency of the conviction Document individualized decision‑making and review mitigating evidence Ensure screening vendors follow lawful, jurisdiction‑specific processes Most enforcement actions do not originate in boardrooms; they begin with frontline interactions in leasing offices. Preparing for the Next Enforcement Cycle—Not Just This One The safest compliance posture in 2026 is continued adherence to existing statutes and regulations, not shifting with agency guidance. Providers should assume that every decision may one day be reviewed by a different agency, or a different administration. Strong policies grounded in law, evidence, and consistency future‑proof operations against political change, regulatory whiplash, and reputational harm. Sub‑regulatory guidance can be rescinded quickly by HUD, but it can be reissued just as easily by a future administration. Conduct occurring today will still be evaluated under existing statutory and case law standards. Providers that loosen policies now may face substantial exposure later through private litigation, changes to state and local enforcement, or renewed federal scrutiny. Change is the name of the game in 2026. Risk has shifted, not vanished. Housing providers that confuse deregulation with immunity may face harsh consequences when enforcement resurges. *Semiannual Report to Congress For the Period April 1, 2025, to September 30, 2025
April 13, 2026
Labor and Employment
How to Use Contractors and Gig Workers Safely: Navigating DOL Classification Standards in a Changing Enforcement Climate
The use of independent contractors and gig workers remains an attractive and, in many industries, essential component of modern workforce strategy. Flexibility, cost control, and scalability continue to drive businesses toward non-employee labor models. At the same time, the legal framework governing worker classification has become more exacting, more nuanced, and more actively enforced. Misclassification is no longer a technical compliance issue. It is a material risk with significant financial and reputational consequences. Understanding how to engage contractors safely requires more than a surface-level application of outdated tests. It requires a disciplined, fact-specific analysis grounded in current U.S. Department of Labor standards and enforcement priorities. The DOL’s Economic Reality Test: Substance Over Form The governing framework under the Fair Labor Standards Act is the economic reality test, as refined by recent Department of Labor rulemaking. The inquiry is not determined by contractual labels or the parties’ stated intentions. It turns on whether, as a matter of economic reality, the worker is dependent on the business or is operating an independent enterprise. While the analysis remains holistic, several core factors consistently guide the determination. The degree of control exercised by the company is often central. Where a business dictates how, when, and where work is performed, classification as an independent contractor becomes increasingly difficult to sustain. Equally significant is the worker’s opportunity for profit or loss based on managerial skill. Independent contractors typically can increase earnings through initiative, investment, or business judgment. Workers paid on a fixed or standardized basis, without meaningful entrepreneurial discretion, present heightened risk. The permanence of the relationship also carries weight. Open-ended or indefinite engagements resemble traditional employment relationships, particularly where the worker is integrated into ongoing operations. Investment in tools and resources, the degree of skill required, and whether the work is integral to the business’s core function all further inform the analysis. No single factor is dispositive. However, in practice, patterns emerge. Where multiple factors point toward economic dependence, the likelihood of misclassification findings increases substantially. Why Misclassification Risk Is Rising Recent enforcement trends reflect a clear and consistent priority. Federal and state agencies are increasingly aligned in scrutinizing contractor arrangements, and plaintiffs’ counsel continue to leverage classification issues as a gateway to broader wage-and-hour claims. Misclassification rarely exists in isolation. It often gives rise to allegations involving unpaid overtime, minimum wage violations, failure to provide benefits, and tax exposure. In collective or class contexts, liability can scale rapidly. In addition, state law frameworks, including ABC-style tests in certain jurisdictions, impose stricter standards than federal law. A classification that may be defensible under federal guidance can nonetheless fail under applicable state requirements. This layered regulatory environment requires a coordinated approach. A one-size-fits-all model is no longer viable for employers operating across multiple jurisdictions. Common Missteps That Create Exposure A recurring issue in contractor engagements is the reliance on form over function. Well-drafted independent contractor agreements, standing alone, do not establish compliance. Agencies and courts consistently look beyond contractual language to the realities of the working relationship. Similarly, classification decisions driven by business preference rather than legal analysis create significant exposure. The fact that a contractor model is operationally convenient, or industry common does not insulate it from challenge. Another frequent concern arises where contractors are treated, in practice, like employees. Requiring adherence to internal policies designed for employees, imposing rigid schedules, or integrating contractors into core teams without distinction undermines the independence necessary to support proper classification. Finally, the use of long-term, exclusive contractor relationships presents elevated risk, particularly where the individual does not meaningfully market services to other clients. Practical Strategies for Structuring Compliant Relationships Mitigating classification risk requires alignment between documentation and day-to-day operations. Engagements should be structured to reflect genuine independence. This includes defining project-based scopes of work, preserving contractor discretion in how services are performed, and avoiding unnecessary control over scheduling or methods. Compensation models should, where appropriate, allow for variation based on performance, efficiency, or business judgment, rather than mirroring employee wage structures. Businesses should also evaluate whether contractors are making meaningful investments in their own operations, including tools, equipment, or business infrastructure. Regular audits are essential. Classification determinations made at the outset of a relationship may become outdated as the engagement evolves. Periodic review allows employers to identify and address risks before they mature into liabilities. Importantly, compliance strategies must account for both federal and state standards. Where stricter state tests apply, those frameworks should govern the analysis. The Strategic Imperative The continued expansion of the gig economy ensures that contractor relationships will remain a focal point of regulatory and litigation activity. Employers who approach classification as a static, check-the-box exercise are increasingly vulnerable. Those who treat it as an ongoing, strategic consideration are better positioned to manage risk effectively. The distinction between an employee and an independent contractor is, at its core, a legal conclusion drawn from operational realities. Aligning those realities with governing standards requires careful planning and informed judgment. For organizations seeking to preserve flexibility while minimizing exposure, experienced counsel is not simply beneficial; it is essential. Proactive structuring, informed by current enforcement priorities, remains the most reliable way to avoid costly disputes and to ensure that workforce models withstand scrutiny when it matters most.
April 10, 2026
Landlord Representation
Navigating DC's Rental Act: Changes in Eviction
In Episode two of The DC Rental Act in Three Minutes, Offit Kurman attorneys Brian Dorwin and Gwen Roy Harrison examine key changes to eviction procedures under the new Rental Act, with a focus on public safety cases. They explain how, under the prior law, landlords were required to issue a 30‑day notice with an opportunity to cure—and often had to wait for repeated misconduct—before filing an eviction. In situations involving violent or dangerous behavior, this left landlords and residents with limited immediate protection. The Rental Act introduces a major shift: a 10‑day notice to vacate with no cure provision for tenants alleged to have committed a dangerous crime or crime of violence. Landlords are no longer required to wait for a criminal conviction before acting, allowing for faster responses to serious threats. Brian and Gwen also note that many questions remain. Because the Act took effect so quickly and reshaped nearly every part of landlord‑tenant court, DC Superior Court and agencies are still interpreting how these provisions will work in practice. Early rulings in 2026 will be critical in shaping how the law is applied.
April 9, 2026
Family Law
What Happens to Debt in Divorce if a Spouse Files Bankruptcy?
Divorce and bankruptcy are both stressful on their own, but when they overlap, things can become especially complicated. Understanding how these two legal processes interact is critical, particularly when dividing debt. Divorce cases are handled in family court, where a judge determines how marital property and debt should be divided. Bankruptcy, on the other hand, is handled in federal court and focuses on eliminating or restructuring debt. Because these are separate legal systems, one does not automatically control the other, but bankruptcy can significantly impact the outcome of a divorce. In many states, debts incurred during marriage are generally considered marital debt, regardless of whose name is on the account. The court may assign responsibility for certain debts to one spouse, but bankruptcy may impact things. If your spouse files for bankruptcy, especially Chapter 7 or Chapter 13, it may affect debts addressed in your divorce. For instance, if your spouse is assigned a marital debt in the divorce but later files for bankruptcy, they may be able to discharge (eliminate) their obligation to pay. Even if the divorce decree says your spouse must pay a debt, creditors are not bound by that order. If your name is also on the account, the creditor may still pursue you for payment. If your spouse discharges the debt in bankruptcy, the creditor may turn to you for full payment, even if the divorce said otherwise. Not all debts may be discharged through bankruptcy. Under federal law, certain divorce-related debts, like child support, alimony/spousal support, and some other obligations arising from a divorce agreement, may not be dischargeable. The timing of a bankruptcy filing is also important. Filing for bankruptcy before filing for divorce may simplify the divorce by eliminating certain debts ahead of time, or it may appear fraudulent and complicate the matter. A bankruptcy filing can pause parts of the divorce proceedings, particularly those involving property division. A spouse may try to discharge debts assigned to them, potentially shifting financial responsibility back to the other spouse. If bankruptcy is a possibility in your divorce, you should discuss strategies with your family and bankruptcy attorneys, such as closing joint accounts, refinancing/transferring debt into one name when possible, and seeking indemnification clauses in the divorce agreement. While a divorce decree may assign responsibility for debt, it does not eliminate your liability to creditors. If your spouse files for bankruptcy, you could still be on the hook for joint debts, regardless of what your divorce agreement says.
April 8, 2026
Healthcare
The CMS ACCESS Model and FDA TEMPO Pilot: Outcome‑Based Payments and Digital Health Innovation
The Centers for Medicare & Medicaid Services’ ("CMS") Advancing Chronic Care with Effective, Scalable Solutions ("ACCESS") Model is a Center for Medicare and Medicaid Innovation ("CMMI") initiative testing outcome-aligned payments ("OAP") tied to measurable improvements in clinical and patient-reported outcomes for Medicare Part B providers. The Food & Drug Administration’s ("FDA") Technology-Enabled Meaningful Patient Outcomes ("TEMPO") pilot program is aligned with and runs concurrently with ACCESS, creating a digital-health technology for Medicare and supporting the introduction of new digital-health technologies so they can be used to support the measurable outcomes for ACCESS. It is important to note that although technology is a crucial component of these models, care delivery remains the core of the model, with digital tools positioned as enablers rather than substitutes. All ACCESS participants must be Medicare Part B enrolled and in good standing, with no flexibility on this requirement. Participants must also designate a Medicare-enrolled medical director responsible for clinical oversight and patient safety. For many digital-health companies, enrolling as a Medicare provider or supplier could represent a significant shift in compliance requirements, including a commitment to ongoing compliance with state and federal laws, as well as heightened fraud, waste, and abuse risks associated with federal healthcare programs. It is likely that CMS may favor ACCESS applicants with prior patient volume, including Medicare-eligible populations, and geographic reach, particularly those that demonstrate operational readiness and the ability to scale. Participation in ACCESS requires full accountability across clinical tracks and comorbidities. Those organizations which participate must be able to manage all conditions within each selected track and report required clinical data, emphasizing “whole person care” and guideline-based management to account for the fact that many chronic conditions are comorbid and occur in the same beneficiary. Participants must also be able to escalate care when necessary, which CMS frames as a patient-safety feature of the model. ACCESS's payment structure introduces substantive downside risk and favors financially stable organizations by providing quarterly, per-beneficiary payments during a 12-month care delivery period, but only 50% of the OAP is paid upfront. The remaining 50% is withheld and subject to reconciliation. During the reconciliation period, CMS will apply a downward adjustment to the withheld amount based on the larger of: Clinical-outcomes performance (up to a 50% reduction of the full OAP), or Substitute-spend impacts (up to a 25% reduction of the full OAP). This structure allows CMS to support care delivery with predictable payments while maintaining accountability for outcomes and spending. Due to the payment structure, CMS is likely to favor applicants that can absorb the associated financial risk. Under TEMPO, manufacturers may request temporary FDA enforcement discretion for certain regulatory requirements when devices are used in ACCESS, which could allow some digital-health devices to be used within the model prior to full FDA authorization. The FDA is contemplating discretion related to premarket authorization and certain investigational device exemption, informed consent, or institutional review board requirements, but has not indicated that such discretion would extend to core device controls such as quality-system or adverse-event reporting obligations. Manufacturers may email the FDA to express interest, identify their device’s current regulatory status, and specify which requirements from which they are seeking relief. Participation is limited to 10 United States-based manufacturers per clinical track and is only available to manufacturers with devices in the four clinical access areas. Manufacturers must collect and share real-world data with the FDA during the pilot.
April 7, 2026
Intellectual Property
USPTO Issues Final Rule Requiring U.S.-Registered Patent Practitioner Representation for Foreign Applicants and Patent Owners
The United States Patent and Trademark Office (USPTO) has issued a Final Rule, published March 20, 2026, requiring all foreign-domiciled patent applicants, inventors, and patent owners to be represented by a U.S.-registered patent attorney (a lawyer who has passed the patent bar exam) or patent agent (a non-lawyer who has passed the patent bar exam) for all submissions made to the Office. U.S.-domiciled applicants, inventors, and patent owners may still proceed pro se. Beginning July 20, 2026, the USPTO will enforce a major procedural change that affects any patent application listing even one inventor, applicant, or owner whose domicile is outside the United States. If any named party is foreign-domiciled — even if others are U.S.-based — the entire application will now require representation by a U.S.-registered patent attorney or patent agent. Foreign law firms and companies with global R&D teams, cross-border collaborations, foreign subsidiaries, international research fellows, or joint development partners must ensure that a registered U.S. practitioner is engaged from the start. Many organizations will be surprised to learn that “foreign” is defined not by citizenship, but by where an inventor or entity legally resides or operates their principal place of business. A single foreign-domiciled contributor on a project can trigger the new representation requirement. The rule is designed to curb fraud, increase filing accuracy, and harmonize U.S. practice with nearly all major foreign patent offices — and it represents one of the most significant shifts in U.S. patent procedure in a decade. It parallels (but is distinct from) the USPTO’s 2019 trademark rule requiring U.S. counsel for foreign trademark applicants, reflecting a broader USPTO effort to reduce fraudulent pro se filings and strengthen enforcement. Key Features of the Final Rule Mandatory U.S.-Registered Practitioner Representation Foreign-domiciled applicants and owners, defined by domicile rather than citizenship, must be represented by a registered practitioner in good standing before the USPTO. Domicile includes a natural person’s permanent legal residence and a juristic entity’s principal place of business. The requirement applies broadly to new applications as well as to amendments, Information Disclosure Statement (IDS) submissions, Application Data Sheet (ADS) filings, petitions, priority and benefit claims, and micro-entity certifications. Only registered practitioners who have passed the USPTO examination may represent others in patent matters. Filing Date vs. Substantive Requirements A foreign-domiciled inventor may still obtain a filing date without practitioner representation, but key components of the application, such as priority claims, ADS information, micro-entity filings, and other required papers, will not be accepted until a U.S. practitioner is appointed. This creates an important procedural distinction between patent and trademark practice. Enforcement Mechanisms The USPTO will enforce the rule through several mechanisms. Unsigned or improperly signed filings will not be entered into the record, and the Office may issue Notices of Non-Compliant Representation requiring the applicant to appoint a practitioner within a specified period. Fraud mitigation is a central driver of the rule, as requiring registered practitioners allows the USPTO to pursue misconduct even if an application is later abandoned. Efficiency and Resource Allocation The rule also reflects a focus on efficiency and resource allocation. By reducing the number of procedurally defective filings submitted by foreign pro se applicants, the USPTO aims to decrease the examiner time spent correcting errors and to lessen the burden on the Office of Patent Application Processing. Why the USPTO Implemented This Rule The USPTO has identified several reasons for implementing this change. First, the rule promotes global harmonization, as most major intellectual property offices, including those in Europe, Japan, China, and Korea, already require foreign applicants to be represented by locally authorized practitioners. Second, it addresses a growing trend of fraud and misrepresentation, including false micro-entity certifications, inaccurate inventor or owner listings, and filings submitted through unregulated intermediaries overseas. Because registered practitioners are subject to ethical rules, reporting obligations, and disciplinary oversight, the USPTO gains enforcement leverage that is not available when dealing with foreign pro se filers. Third, the rule is intended to improve accuracy and efficiency, as pro se filings often require correction, clarification, or substantial examiner intervention, and representation at the outset improves application quality and reduces delays. Comparison With the 2019 USPTO Trademark Counsel Rule The USPTO’s 2026 patent rule closely mirrors the 2019 trademark counsel requirement in purpose, as both are designed to reduce fraudulent filings, improve compliance with U.S. legal and procedural standards, ensure accuracy in submissions, and eliminate foreign pro se participation. However, the rules diverge in key ways. The trademark rule requires representation by a U.S.-licensed attorney (though, as a practical matter, it remains advisable to engage counsel with meaningful trademark experience), while the patent rule imposes a more specialized requirement of a USPTO-registered patent attorney or agent. They also differ procedurally: trademark applications generally will not be accepted without proper counsel, whereas patent applications may still receive a filing date but will be considered incomplete until compliant representation is secured. The scope of who qualifies as “foreign” is broader in the patent context, applying if any applicant, inventor, or owner is foreign-domiciled, compared to trademarks, which focus on the domicile of the owner alone. Finally, while both rules address fraud, the patent rule more directly targets specific abuses, such as false micro-entity claims, improper priority assertions, and fraudulent correspondence filings, reflecting a documented rise in these issues in foreign-originating applications. Practical Implications for Foreign Applicants and Patent Owners Foreign-domiciled individuals and entities should take proactive steps to ensure compliance. They should retain a U.S.-registered patent practitioner as early as possible, particularly if they plan to file U.S. patent applications in or after July 2026. They should also review existing portfolios for upcoming deadlines that will require practitioner signatures, ensure that ADS filings, micro-entity certifications, petitions, and follow-on submissions are properly executed by a registered practitioner, and anticipate USPTO notices requiring representation in applications that were filed before the rule’s effective date.
April 6, 2026
Mergers and Acquisitions
Financial Readiness: Fixing the Problems Before Going to Market
When a business owner is considering a sale, financial statements are often the first point of contact with a potential buyer. Before any discussions commence regarding strategy, growth potential, or culture, buyers are going to ask the question, “Can we see your financials?” Your financials tell the story of your business. When they are clear, credible, and well-prepared, they create momentum and instill confidence in the buyer. But when they are inconsistent, unclear, or require significant explanation, the transaction may stall or halt before it ever really started. Or it could result in an offer that doesn’t meet the seller’s expectations. Carefully prepared financials are critical to any transaction, and this must be handled before entering the market. It is one of the most important steps a seller can take to protect valuation and keep the deal on track. The First Test for Buyers When reviewing a potential acquisition, buyers are going to first evaluate two fundamental issues: the historical earnings of the business and its future earning potential. The historical performance is the foundation for determining valuation. This means the financial statements must clearly demonstrate profitability and reliable cash flow. When there is uncertainty, it can translate into a discounted offer or a decision to walk away. Sometimes the issue is not that a business is underperforming, it is just that their financial statements are not clearly reflecting the true earning power of the business. Addressing “Add-Backs” It is common for many privately held businesses to run a variety of expenses through the company that are not directly tied to operations. When this happens, it can distort the financial picture if these are not identified and adjusted. This can include personal expenses that are run through the business, vehicles or travel not tied to operations, above-market owner salaries, compensation to family members that are not active in the business, and more. When preparing for a sale, these kinds of expenses will typically be “added back” to EBITDA to reflect the company’s normalized operating performance. When add-backs are properly documented, it can significantly improve the evaluation of the business. But they must be adjustments that are credible and clearly supported, or it can lead to additional concerns and a slower negotiation process. Quality of Earnings Reports Within the past few years, Quality of Earnings (QoE) reports have become increasingly common early in the process to review the company’s financial performance. Sellers are now commissioning these reports before entering a sale process as opposed to a buyer conducting this analysis during the due diligence process. Because an independent accounting firm is conducting the analysis, it lends a level of third-party legitimacy and validation to the company’s earnings profile. This serves to further reduce uncertainty and can help accelerate the process overall. It can also help to instill confidence for the buyer that can lead to stronger initial offers. Preparation is Key in Today’s Market We have noted in previous posts looking at the current M&A climate that today’s buyers are more disciplined than ever. They are focused on financial clarity and risk management, and they are spending more time evaluating every aspect of a target’s financials. When a seller enters the market with well-prepared financial statements, along with supporting analysis from a third-party, they are often able to move through the diligence process more efficiently and have even greater leverage in negotiations. It is more important than ever to engage legal and financial advisors very early in the process. This allows ample time to clean up financial statements, resolve inconsistencies, identify areas of adjustment, and prepare supporting documentation. Presenting these kinds of financials that clearly demonstrate historical performance, and future potential allows buyers to justify a higher valuation. Part of every transaction is storytelling, and your financials must tell a credible story for buyers to have confidence in where the business has been and where it is going. Addressing any issues early in the process, well before going to market, is going to help eliminate surprises and strengthen the position of the seller. This is key to positioning the company for a successful transaction.
April 6, 2026
Intellectual Property
The Lion King Chant Roars Into Federal Court
Most people know the opening chant of Disney's "The Lion King," even if they can't quite place the words. That chant, "Nants'ingonyama bagithi Baba," was composed and originally performed in 1994 by Grammy-winning South African artist Lebohang Morake, known professionally as Lebo M. Its meaning, as published in the 2019 soundtrack liner notes, is a royal Xhosa proclamation: "All hail the king, we all bow in the presence of the king." On March 16, 2026, Lebo M filed a federal lawsuit in the Central District of California against Zimbabwean-born comedian Learnmore Jonasi, who told millions of podcast and social media viewers that the chant actually translates to "Look, there's a lion. Oh my god." The complaint, seeking over $20 million in damages, raises an unusual and provocative question: when does a comedian's viral joke cross the line into actionable harm to an artist's livelihood and legacy? The lawsuit brings four distinct claims. The first invokes Section 43(a) of the Lanham Act, arguing that Jonasi's false "translation" amounts to a misleading description of Lebo M's commercially significant creative work. The remaining three claims concern state law: 1) defamation per se, alleging the joke implies that a celebrated, award-winning composition is meaningless gibberish; 2) trade libel, targeting the disparagement of the composition itself as a commercial product; and 3) tortious interference with prospective economic advantage, based on Lebo M's concern that the viral mockery could jeopardize his decades-long working relationship with Disney. Notably, the complaint does not include a copyright infringement claim, as Jonasi never reproduced the composition itself. Therefore, the theory of harm here is reputational and commercial, not about unauthorized copying of protected works. Ultimately, the case will hinge on the tension between intellectual property protections and the First Amendment. Jonasi's legal team is likely to argue that a humorous riff on a song lyric's meaning is protected speech, comprising an opinion or parody, not a provably false "statement of fact" as defamation law requires. But the complaint lays groundwork to counter that defense: it alleges that Jonasi presented his translation in an informational podcast setting (as opposed to, for example, a stand-up special where such humor is expected as a matter of course), that Lebo M personally contacted Jonasi with the correct translation, and that Jonasi explicitly refused to retract. If the court finds those facts credible, the case for actual malice (and potentially significant damages) becomes much more compelling. For creators, brand owners, and anyone whose professional reputation is tied to a specific body of work, Morake v. Mwanyenyeka is a case worth watching as it develops.
April 6, 2026
Labor and Employment
From Allegations to Adjudication! Court Strips Lively–Baldoni Case to a Retaliation Reckoning
The April 2, 2026, decision in the dispute between Blake Lively and Justin Baldoni is best understood as a post discovery narrowing that leaves the case both smaller and more legally coherent. Judge Lewis Liman granted the defendants’ motion for judgment on the pleadings and motion for summary judgment in substantial part, dismissing most of the claims and allowing only a limited set to proceed. This was not an early-stage plausibility ruling. It was a merits-driven assessment of what the record can actually support. What remains is precise. Lively’s retaliation claim under the California Fair Employment and Housing Act proceeds against the production entities. Her aiding and abetting retaliation claim proceeds against the public relations firm. Her breach of contract claim proceeds against the entity that signed the Contract Rider Agreement. The rest of the case, including Title VII, Labor Code retaliation, and the common law theories, has been dismissed. The contractual analysis is where the opinion does some of its most important work, and it explains why the case looks the way it does now. The court treated two agreements very differently, and the reason is not subtle. One was never signed. One was. The Actor Loanout Agreement failed as a matter of contract formation. The court focused on express language that made execution a condition of any obligation. The agreement provided that the company’s obligations were conditioned on “receipt of executed copies of this Agreement signed by Lender and Artist.” It also required execution of the inducement. Those provisions were not treated as boilerplate. They were treated as dispositive. Lively never signed. The parties continued to negotiate material terms, including the very provision addressing sexual harassment and remedies. On those facts, the court held there was no binding contract to enforce. That conclusion carries broader significance than this case. The court rejected the idea that substantial performance can override an express intent not to be bound absent execution. Filming occurred. Compensation was paid. Negotiations continued. None of that altered the contractual analysis. Where the parties clearly reserve the right not to be bound until signature, courts will enforce that reservation. In practical terms, the court treated the ALA as exactly what it was in the record. An unconsummated negotiation. The Contract Rider Agreement, by contrast, is the rare piece of paper in this record that does exactly what lawyers expect a contract to do. It was signed. It contains operative language. And that language goes directly to the theory that survived. Paragraph 10 provides that there shall be “no retaliation of any kind” against Lively for raising concerns, including retaliation “during publicity and promotional work.” That provision is not abstract. It is tailored to the very conduct Lively alleges occurred after she raised complaints. The court’s willingness to let the contract claim proceed flows directly from that text. The difference in treatment between the ALA and the CRA is therefore not a matter of judicial preference. It is a straightforward application of contract law. An unsigned agreement with disputed terms does not bind. A signed agreement with a clear anti-retaliation clause does. The retaliation analysis follows a similar pattern of doctrinal precision. Several claims failed because they required an employment relationship that the court concluded was not present. That determination eliminated the Title VII and Labor Code theories. But FEHA retaliation is written differently. It protects any person who engages in protected activity. That statutory distinction is what allows the claim to proceed. The court also declined to treat the alleged conduct as too remote from California to support a FEHA claim. It found a sufficient connection based on allegations that California-based actors directed and executed the challenged conduct. That holding keeps California law in play and preserves a framework that is often broader than its federal counterpart. The most closely watched aspect of the case, the alleged reputational campaign, survives but only in the narrow sense that matters at this stage. The court did not find that retaliation occurred. It held that a reasonable jury could find it occurred. It also held that the defendants’ explanation that they were protecting their reputations and the film does not resolve the issue as a matter of law. Competing explanations are for a jury where the record supports them. That brings us to the question that tends to get lost in the headlines. What about Baldoni himself. Is he out? The answer is no, but his exposure is materially reduced. Many of the claims asserted directly against him, including harassment and certain statutory claims, have been dismissed. However, he remains a defendant to the extent he is part of the group alleged to have engaged in retaliatory conduct and conspiracy. The case against him now lives or dies on the retaliation theory rather than on the broader set of claims originally pleaded. The same narrowing applies across the board. Wayfarer is no longer in the contract case because it was not a party to the agreements and the argument was not preserved. But it remains in on retaliation. The public relations entity remains in on aiding and abetting. The film specific entity remains in on both retaliation and contract. The cast of defendants is still present. The script they are operating under is simply much tighter. What the court has done is not to decide who is right. It has decided what can be decided later. The case now turns on a set of familiar but demanding questions. Whether Lively engaged in protected activity. Whether she experienced adverse action after doing so. Whether that action was motivated by retaliation. And whether it breached a written promise prohibiting retaliation. For a legal audience, the lesson is as straightforward as the holding. Contracts matter in the form they are actually executed, not the form in which they are discussed. Statutes matter in the words they actually use, not the words we assume they contain. And at summary judgment, claims survive not because they are compelling in the abstract, but because the record permits a reasonable jury to accept them. The case that remains is narrower. It is also more dangerous in a familiar way. Retaliation claims tend to turn on motive and sequence rather than a single discrete act. Those are questions that courts are often reluctant to resolve as a matter of law. That is why, even after a ruling that eliminates most of the complaint, this litigation is far from over.
April 3, 2026
Business
The Great Ownership Transfer: Why Execution Breaks Search Fund & ETA Deals
Most commentary on the “Great Ownership Transfer” or the "Silver Tsunami" focuses on sellers. It is right there in the name. Aging owners. Lack of succession planning. Uncertainty around exit. That framing is incomplete. This is not just a supply story; it is a buyer capacity problem. Particularly for search fund entrepreneurs, independent sponsors, and others pursuing entrepreneurship through acquisition McKinsey estimates that ~6 million SMBs will face ownership transitions by 2035, representing up to $5 trillion in enterprise value. Yet roughly 92% of exits are likely to occur through closure, not sale. McKinsey Report: The Great Ownership Transfer. If you are acquiring businesses in the $500K–$25M range, your primary competition is often not another buyer. It is the business quietly shutting down. This Is Not a Deal Flow Problem - It Is a Buyer Execution Problem in Search Funds and ETA There is no shortage of businesses to buy in the lower middle market. The challenge for search funds, independent sponsors, and ETA buyers is execution. It is likely that for some of these businesses, the rational step is closure, but there will remain a significant number of profitable businesses in search of a buyer during this economic event. The problem exists in the shortage of buyers who can: Source effectively Underwrite accurately Finance reliably Transition successfully The gap between going under LOI for a “viable business” and closing is where most deals fail. That gap is also where the opportunities and risks live. The Buyer Capabilities Stack In practice, buyer success in this market comes down to the four capabilities identified above. Sourcing: The Best Deals Are Not in Market Because closure dominates exit paths, many viable businesses never run a formal sell process. They speak with a CPA, a broker, or a peer about selling, and when friction appears, the process stops. Running a sell process is not without its hurdles, which is why the rewards are greater for those who do it. If your sourcing strategy depends solely on brokered deals, you are competing in the most efficient (and crowded) segment of the market. If a buyer wants to improve their odds at wining, they need to: Build referral channels with accountants, attorneys, and advisors Focus on specific industries to accelerate underwriting Embrace cold outreach Engage sellers before a formal process exists The winning edge is not price. It is access to top tier deals that are found through hard work and diligence. Seller Readiness: Most Deals Fail Before Diligence Another recurring issue in lower middle-market transactions is not business quality, but transferability. Common issues that cause buyers to avoid deals include: Incomplete or inconsistent financials Owner-dependent relationships Undocumented processes Unclear working capital needs The better initial question is not: “Is this a good business?” It is: “Can this business be transferred and financed cleanly?” Buyers can use a simple readiness screen when examining prospective companies to purchase by examining for: 24 months of monthly financials and tax returns Customer concentration and contract review Identification of key personnel dependencies Basic operational systems (billing, quoting, payroll) Working capital dynamics post-close Deals that fail this screen rarely improve during diligence. I recently posted about broken LOIs and the reasons why buyers walk away: Broken Executed LOIs By Reason. Over 45% of the reasons for failure can be categorized within the items listed above. Financing: The Constraint Most Buyers Underestimate Financing is not a closing step. It is a very serious pre-LOI workstream. That may seem like an obvious statement, but many failed deals share a common pattern: The buyer underwrites one version of EBITDA, and the lender underwrites another. That gap kills deals. Particularly in SBA-driven transactions common in search funds and small business acquisitions: Equity requirements and guarantees are real constraints Underwriting timelines introduce friction Smaller deals are treated as bespoke, not standardized Disciplined buyers: Underwrite to debt service, not seller-adjusted earnings Normalize add-backs conservatively Identify working capital needs early Seriously consider the structure pre-LOI (seller notes, holdbacks, transition-linked payments) The deal is not real until the capital stack is real. Nothing happens without financing. Post-Close Execution: The First 100 Days Decide the Outcome The most underappreciated risk in these transactions is not closing. It is transition. I believe buyers should familiarize themselves with at least some turnaround management practices during the search process because buyers inherit: Informal systems Relationship-driven revenue Limited reporting infrastructure Outdated systems Without a clear transition plan, value can erode immediately. It is not simply a digital transformation play (digital advertising, industry specific project management Saas, etc.). Effective buyers plan for: Defined transition services from the seller Retention of key employees Structured customer handoffs Weekly cash and operations cadence post-close This is not operational detail. It is downside protection and risk mitigation. It is also some of the hardest work because it cannot be brute forced - it requires soft skills, attention to detail, and time-consuming review of information. What This Means for Investors Backing Buyers For family offices, independent sponsor investors, and capital partners backing search funds and ETA buyers, the underwriting focus needs to shift. Similar to what we discussed above, the question is not: “Is this a good business?” It is: “Can this buyer execute this transition?” Key diligence questions for investors to ask should include: Does the buyer have a repeatable sourcing strategy? Is there a defined readiness filter? Is financing aligned with lender reality? Is a post-close execution plan in place? Most deals in this segment fail due to execution gaps, not thesis failures. The Structural Inefficiency Creates Opportunity The inefficiency in this market is not hidden. It is structural: fragmented deal flow, inconsistent advisor quality, limited financing standardization, and minimal post-close support. These are not isolated issues - they are systemic frictions that sit between a viable business and a closed transaction. Prepared buyers can benefit from this inefficiency because it creates: Less competition in off-market deals Pricing inefficiencies The ability to win through structure and not just valuation But those advantages are only available to buyers who can execute. This is not a market where capital alone wins. It is a market where taking a business from “viable” to “financeable” to “transferable” is necessary and may require a longer pre-LOI/pre-close relationship with the seller. If pre-screening raises concerns around financial quality, customer concentration, or post-close execution, the question is not just whether the deal is attractive. It is whether those risks can be mitigated before committing to an LOI. Most deals don’t fail because the business is bad. They fail because the buyer underestimated what it would take to close and operate it. Spending time with the seller (sometimes weeks or even months) before fully committing can be one of the most effective ways to de-risk a transaction before signing an LOI and set up a smoother, more profitable transition. The Real Takeaway The Great Ownership Transfer is often framed as a wave of supply. The data suggests the real issue is execution. This is especially true for those pursuing entrepreneurship through acquisition, where execution risk concentrates in a single asset. The challenge is not finding viable businesses. It is getting them across the finish line after turning viable businesses into successful buyer transitions, not closures. For buyers, the edge is not just identifying a good business. It is building the capability to move a deal from: possible → financeable → transferable → stable The market does not reward intent. It rewards execution. Buyers who can deliver that consistently will capture disproportionate value.
April 3, 2026
Estates and Trusts
Choosing the Right Fiduciary: Why It Can Make or Break an Estate Plan
Even the most carefully crafted estate plan can unravel if the wrong individuals are appointed to serve as executor or trustee. Executors and trustees are fiduciaries vested with broad authority to administer assets under their custody. They are responsible for asset management, tax compliance, recordkeeping, and the distribution of assets to beneficiaries. Sometimes the fiduciary only serves a matter of months; other times, their appointment can last for years or even decades. Oftentimes, a client will reflexively appoint their spouse as primary fiduciary, followed by one or more of their children as successor fiduciaries. It is certainly understandable that a client would want their closest relatives involved in administering their assets. When the fiduciary is also the primary beneficiary, and there is no need for ongoing administration, even a fiduciary who lacks sophistication may not cause significant issues, as the fiduciary is essentially tasked with administering their own assets. However, when the fiduciary is not the primary beneficiary, or when the administration will be ongoing, the complexity of the role means that appointing the wrong fiduciary may have significant consequences. This is because the fiduciary may be tasked with satisfying claims, paying estate taxes, or even winding down a business. A fiduciary who lacks sophistication or knowledge exposes the assets under their control to significant risk of mismanagement and waste. A fiduciary who lacks the knowledge and experience to navigate their responsibilities may fall into traps that a more seasoned fiduciary would avoid. A fiduciary’s contentious relationship with a beneficiary may make it difficult to maintain neutrality and avoid conflict. Even well-intentioned fiduciaries may have poor communication skills or fail to engage competent professionals to assist them in their duties. The client can take proactive steps to mitigate the risk of appointing the wrong fiduciary and prepare their nominated fiduciaries for success in their roles. Setting the Nominated Fiduciary up for Success While these conversations are often considered taboo, the client should have a candid conversation with their nominated fiduciaries to ensure that they understand the scope of their responsibilities. The fiduciary should be provided with the names and contact information of the client’s accountant, financial advisors, and attorney. The fiduciary should also know where the client’s important documents and records are located. While clients are often (and understandably) uncomfortable revealing the nature and extent of their assets, they should maintain records of their assets, liabilities, and obligations, as well as the passwords to their e-mails and other electronic accounts, along with their other important documents. The client may also wish to discuss with their nominated fiduciary any specific wishes or priorities that they want honored, family dynamics, gifting history, and any other particular issues or concerns the client may have. Taking these proactive steps will ensure that when the time comes for the nominated fiduciary to assume their role, the transition will be smooth. Consider Appointing Co-Fiduciaries with Defined Roles Appointing more than one fiduciary is also a way to balance family involvement with ensuring that a competent fiduciary is appointed to guide the family member in their duties and responsibilities. This may be particularly advantageous when the family fiduciary is young or inexperienced, as having an experienced fiduciary to serve together with them ensures that assets are properly invested, tax returns are timely prepared and filed, and records of their administration are maintained. For states that permit directed trusts, consideration should be given to clearly defining the roles of each co-fiduciary. For example, a client could designate a family member as the fiduciary responsible for making distribution decisions, while an independent trustee is tasked with making decisions concerning investment strategies. A mechanism should also be incorporated to anticipate and resolve deadlocks, avoiding delays or even total inaction. It is important to note that having more than one fiduciary can increase administrative costs or create the potential for conflict between the co-fiduciaries. Therefore, appointing co-fiduciaries may not be the right decision in every circumstance. Drafting for Flexibility and Ongoing Administration Sometimes the client’s nominated fiduciary may be unable or unwilling to serve for justifiable reasons, or after assuming office, can no longer continue to serve as fiduciary. While the client should evaluate the qualifications of any successor fiduciary that may need to serve, mechanisms should also be incorporated to anticipate and resolve fiduciary succession issues. For example, a trust agreement may provide that the last remaining trustee in office can appoint successor trustees or co-trustees. This provides the primary fiduciary with the opportunity to assess the current administrative landscape, what family members may be willing or available to serve, as well as the costs and benefits of appointing a professional or corporate fiduciary as successor fiduciary. Similarly, the trust agreement can provide that a majority of the beneficiaries may nominate successor fiduciaries if the office becomes vacant. These mechanisms help to avoid a contentious or difficult relationship forming between the fiduciary and the beneficiaries. Fiduciary Removal Taking appropriate steps and precautions during the client’s lifetime to ensure proper administration may still not be enough to avoid conflict or difficulties once the fiduciary is appointed. Therefore, it is just as critical to provide a mechanism to remove an unqualified or recalcitrant fiduciary. Sometimes it is appropriate for the beneficiaries to hold this power. Other times, a trust protector may be appointed to serve in this role. A “trust protector” is a non-fiduciary who is provided with defined, limited powers. Having a trust protector to monitor the activities of a trustee and, if need be, remove a trustee ensures impartiality and neutrality in the decision. Conclusion Nominating an executor or trustee is among the most consequential decisions that a client will make in their estate plan, yet many clients reflexively appoint their spouse or other close relatives. The wrong choice can cause conflict, erode family relationships, increase the cost of administration, and (in the worst of circumstances) invite litigation. By thoughtfully evaluating fiduciary candidates, ensuring fiduciaries are prepared and willing to serve, and incorporating flexibility into the estate planning documents to anticipate changed circumstances, advisors can help clients preserve family harmony and ensure their wealth is preserved for their beneficiaries.
April 2, 2026
DC Rental Act in Three Minutes
Understanding DC Protective Orders Under the RENTAL Act
The DC RENTAL Act has reshaped how protective orders work in eviction cases—making them faster, more consistent, and far more beneficial for housing providers. A protective order requires tenants to pay rent into the court registry rather than directly to the landlord, ensuring continued payment while a case is pending. Before the RENTAL Act, landlords often faced long delays. Tenants could raise even minor disputes, pushing protective‑order hearings months out and slowing down the eviction process. Now, judges are expected to issue preliminary protective orders at the very first hearing. Tenants may still request a Bell hearing or raise defenses, but they must begin making monthly payments immediately until the court adjusts the amount. Since the Act took effect, DC courts have been issuing protective orders more reliably at initial hearings—resulting in steadier payments and fewer procedural setbacks for landlords.
April 2, 2026
Labor and Employment
Virginia Joins the National Trend Limiting Noncompete Agreements
Employers who do business in Virginia and have employees who work in that jurisdiction need to be aware of a law which will soon be enacted limiting the use of noncompete agreements. It is no secret that there is a growing national trend towards limiting the use and enforceability of noncompete agreements, predicated upon what legislatures and courts deem to be unfair restrictions on employee mobility and freedom of competition in the marketplace. Thus, on March 4, 2026, the Virginia legislature approved Senate Bill 170, which contains a detailed regimen of restrictions imposed on employers who have employees in the Commonwealth. So, in general, what does this piece of legislation do, which is expected to be signed into law by Governor Spanberger? Well, there are a number of detailed nuances to the legislation, and they are too numerous to be enumerated here, but the following are merely highlights of the newly anticipated restrictive law: The new law, if enacted as expected, would prohibit noncompetes for any employee who is laid off without severance benefits or other monetary payment, unless such employee is terminated for “cause” (both “severance benefits” and “cause” are undefined in the law) The new law would become effective for all noncompete provisions entered into, amended, or renewed AFTER July 1, 2026, but significantly does not apply retroactively to any agreement entered into prior to July 1, 2026 Interestingly, the law applies to all employees, irrespective of their rank or station in the company, even those in senior management positions The law does not prohibit non-solicitation of customers or employees Employers who violate the provisions of the law face the possibility of being sued in a private right of action where the claimant can obtain injunctive relief, liquidated damages, backpay, and counsel fees Additionally, under the law, the Virginia Commissioner of Labor and Industry may impose a civil monetary penalty of $10,000 for each violation Employers doing business and employing individuals in Virginia need to closely monitor developments with the new law, and if enacted as expected, be prepared to carefully draft noncompete provisions in accordance with what appears to be a very restrictive legislative scheme. Because there are many open questions surrounding the details of the new law, it is strongly advised to seek qualified employment counsel when contemplating the use of noncompete provisions in the Commonwealth of Virginia.
April 1, 2026
Labor and Employment
Spring Cleaning Your Employee Files
Spring inspires a certain kind of ambition. Closets are reorganized. Garages are reclaimed. Kitchen drawers finally surrender their mysterious collections of takeout menus and expired soy sauce packets. Employers would do well to apply the same seasonal energy to another space that tends to accumulate clutter quietly over time: employee records. Personnel files have a remarkable way of expanding without supervision. A performance note here, an email printed there, a manager’s handwritten reminder tucked into a folder for “later.” Years later, the file resembles less of a clean employment record and more of a historical archive. Unfortunately, when a dispute arises, those archives tend to become exhibits. Spring is a useful moment for employers to step back and examine how employee records are organized, what should be retained, and what should not be living in the same file in the first place. A thoughtful approach to data retention is not just good housekeeping, it is a meaningful risk management strategy. One of the most common misconceptions about employee files is that everything related to an employee should live in one folder. Legally speaking, that approach creates more problems than it solves. Most employers should maintain several distinct categories of employee records, each with its own purpose and level of confidentiality. The traditional personnel file is the record most employers think of first. It typically contains materials related to hiring, compensation, performance evaluations, promotions, disciplinary actions, and other employment decisions. In short, it tells the professional story of the employee’s relationship with the company. But certain types of information should not live in that same file. Medical information is a prime example. Documents related to medical conditions, disability accommodations, and medical certifications for leave must be maintained separately and treated as confidential under federal law, including the Americans with Disabilities Act. Keeping medical records apart from the general personnel file helps limit access and ensures managers reviewing performance information are not inadvertently exposed to protected medical details. Immigration related documents are another category that deserve their own home. Form I-9s, which verify employment eligibility, should be stored in a separate I-9 file or electronic system rather than within the personnel file itself. There is a practical legal reason for this. If the Department of Homeland Security or another agency conducts an I-9 audit, employers are required to produce those forms. Housing them separately allows employers to provide the required documents quickly without turning over the entire personnel file or exposing unrelated, potentially sensitive employment records. A similar logic applies to background check documentation. Reports obtained under the Fair Credit Reporting Act often contain personal information that should be maintained separately from routine personnel materials and handled in accordance with the statute’s confidentiality requirements. If this sounds like a lot of folders, it is. But the structure matters. Separating records by category is not about bureaucracy. It is about protecting sensitive information, limiting unnecessary disclosure, and ensuring compliance with multiple overlapping employment laws. Consistency is equally important. Employers should aim for uniform recordkeeping practices across the workforce. Documents that are routinely created, such as performance evaluations or written warnings, should appear consistently in employee files. Sporadic documentation invites uncomfortable questions later about whether records were selectively created or preserved. This becomes especially relevant in litigation. When employee files contain scattered notes, informal comments, or partial documentation, they often raise more questions than they answer. The absence of records can be just as problematic. If an employer asserts that an employee struggled with performance but the file contains no documentation of those concerns, that gap becomes difficult to explain. Of course, spring cleaning does not mean shredding everything in sight. Employers must comply with a bevy of federal and state record retention requirements. Under the Fair Labor Standards Act, for example, payroll records must generally be retained for at least three years. The Equal Employment Opportunity Commission requires employers to preserve personnel and employment records for at least one year, and longer if a charge of discrimination has been filed. Form I-9s must be retained for a specific period tied to the employee’s date of hire and separation. Benefit plan records, tax documents, and workplace injury reports often carry their own retention timelines as well. Because the rules vary, the most effective approach is to adopt a written document retention policy that clearly identifies which records must be maintained and for how long. A well-designed policy helps HR teams manage records consistently and prevents the ad hoc cleanups that tend to occur when file cabinets become too full. Those spontaneous cleanups can create real problems. Once an employer becomes aware of a dispute, investigation, or potential claim, the organization has a legal obligation to preserve relevant records. Destroying documents after that point, even if it would normally be permitted under a retention policy, can lead to allegations of evidence destruction. Courts tend to take a dim view of that kind of spring cleaning. Modern technology has also complicated the recordkeeping landscape. Employee information now lives in HR platforms, email systems, messaging tools, shared drives, and occasionally personal devices. A comprehensive retention strategy should account for both physical and electronic records and ensure they are governed by consistent rules. At the same time, employers should resist the temptation to keep everything forever. Over retention can create its own problems. The more documents an organization keeps, the more it may have to search, review, and produce in the event of litigation or an investigation. In other words, the goal is not hoarding. It is curation. Spring cleaning employee files may not provide the immediate satisfaction of finally conquering the garage, but it offers something arguably more valuable: clarity. Organized, compliant records help employers make better decisions, respond confidently to audits or claims, and protect the confidentiality of sensitive information. And unlike that kitchen drawer full of soy sauce packets, an orderly recordkeeping system rarely produces unpleasant surprises later.
April 1, 2026
Bankruptcy
Deal Structures Under Stress: Courts Reexamine Prebankruptcy Transactions
According to data from Epiq Bankruptcy, February 2026 marked a significant increase in commercial bankruptcy activity. Commercial Chapter 11 filings rose by 67% year over year, while Subchapter V elections by small businesses increased by an even more striking 91%. For restructuring professionals and deal participants, this surge is not merely a statistical datapoint. It is a harbinger of avoidance actions yet to come. As more cases move past the filing stage, trustees and debtors‑in‑possession will inevitably turn their attention to transactions that preceded bankruptcy, particularly those involving affiliates, directors and officers, sponsors, or asset purchasers. These challenges most often surface as fraudulent conveyance actions, and a mix of recent and historical cases serves as a pointed reminder of the practical exposure risks facing transaction participants. Courts are looking past labels, deal structures, and market conventions to examine the economic reality of transactions that leave debtors overleveraged and creditors exposed. Although these cases arise in very different factual settings, they converge on the same core principle: economic reality controls. Transactions that extract value while saddling a company with unmanageable obligations will receive heightened scrutiny if in financial distress and ultimately in a bankruptcy proceeding. The cases discussed below, spanning leveraged buyouts, subsequent transferee liability, merchant cash advances, and insider transactions, underscore a unified principle: courts are increasingly indifferent to form where creditor harm is real. Market-standard LBO is not insulated from a fraudulent conveyance claim. In Worth Collection, the Delaware bankruptcy court denied motions to dismiss a Chapter 7 trustee’s amended complaint challenging a 2016 leveraged buyout that allegedly gutted the debtor while enriching insiders. Worth Collection Ltd. was placed in bankruptcy, involuntary by its inventory suppliers and service providers. After an earlier dismissal, the trustee returned with a much more detailed pleading that carefully laid out the transaction’s financial consequences. According to the amended complaint, the LBO increased the debtor’s debt from approximately $2.4 million to more than $25 million. Interest expense increased by over 5,000%, operating losses quickly followed, and the company’s cash reserves fell from roughly $12 million in 2014 to less than $500,000 by 2016. At the same time, former equity holders allegedly received over $39 million in closing distributions, leaving unsecured creditors to absorb the downside. The trustee asserted a broad range of claims, including substantive consolidation, veil-piercing, the collapsing of the LBO transactions, and avoidance of transfers as both actually and constructively fraudulent under the Bankruptcy Code and Delaware law. Judge Shannon held that the amended complaint plausibly alleged each of these claims. Of particular importance, the court found that the traditional badges of fraud, like insider transfers, lack of reasonably equivalent value, and insolvency, were pleaded with sufficient detail to survive dismissal. The court also emphasized that fraudulent intent need not be shown directly and may be inferred circumstantially, especially in LBO cases where leverage spikes and liquidity collapses shortly after closing. The significance of Worth Collection lies in its confirmation that leveraged buyouts are not insulated from challenge simply because they resemble market‑standard deals. Where the economic effect of the transaction is to burden the operating company while delivering value to insiders, courts will allow fraudulent conveyance claims to proceed, often into costly and protracted discovery. “Purchase of Future Receipts” Called by Its Real Name: A High‑Interest Loan The Bankruptcy Court for the Northern District of Texas, In re Denali Construction Services, LLC v. Cloudfund et al., dismantled the merchant cash advance model marketed as purchases of future receivables. Denali experienced significant financial distress since its CFO embezzled funds by failing to fund union and tax obligations. The company’s condition worsened with the onset of the COVID‑19 pandemic in 2020. From 2019 through 2022, Denali unsuccessfully sought traditional bank financing. By late 2022, Denali could not continue operating without outside funding. Beginning in October 2022, Denali entered into at least 10 merchant cash advance agreements with eight different providers. Over time, Denali used later MCAs to repay earlier MCAs due to insufficient operating cashflow. Denali was never able to stabilize its cash flow, and it filed a Chapter 11 petition on October 3, 2024. On October 7, 2024, Denali filed an adversary proceeding against multiple MCA providers. After trial, the Texas bankruptcy court concluded that the MCAs were loans in substance rather than true receivables purchases. Repayment was effectively fixed and absolute, enforced through daily ACH debits that operated regardless of actual revenue. Default provisions accelerated repayment obligations and expanded remedies to sweep assets, hallmarks of traditional lending rather than asset sales. When the court examined the pricing mechanics, the embedded “interest” produced effective annual rates ranging from approximately 348% to 427%, far exceeding Texas’s 28% cap for commercial loans. As a result, the agreements were declared usurious and void, the lender was hit with treble damages exceeding $2.6 million, and the liens securing the obligations were avoided as constructively fraudulent transfers under section 548. Where risk is illusory, repayment is guaranteed in practice, and labels such as “revenue purchase” disguise functionally predatory lending terms, courts are increasingly willing to intervene. The same lesson echoes earlier cases such as Teligent and Coco Foods, where courts placed greater weight on how transactions actually operated than on formal documentation. The Coco Transactions: Structure, Control, and Fraudulent Transfer Exposure Coco Foods, Inc. and Coco Partners, Inc. (the “Debtors”) filed voluntary petitions for relief under Chapter 7 on October 9, 2017. A little over a year before that, these two companies acquired the assets of Nelson and Son Formals and Rychards Formals. The Chapter 7 trustee brought fraudulent conveyance actions against the sellers, an affiliated entity, and the principal, Richard Nelson. Coco Foods and Coco Partners were corporations wholly owned by Steven Fielitz. Richard Nelson was the principal and 100% owner of Nelson & Sons Formals Ltd., Rychards Formals Ltd., Nelson & Sons Rentals Inc. Nelson & Sons Formals and Rychards Formals operated tuxedo rentals and sales businesses on Long Island. Nelson & Sons Rentals Inc. functioned as the assignee of promissory notes arising from the debtors’ purchases and was dissolved in September 2017. During 2015–2016 Nelson and his business broker Transworld negotiated with Steven Fielitz for the sale of the businesses. Fielitz was given access to QuickBooks data and summarized financial records, and point‑of‑sale sales figures for the calendar year 2015. The financial materials initially provided reported positive net income for both businesses and significantly higher sales figures. On May 18, 2016, two transactions closed simultaneously: Coco Foods purchased the assets of Rychards Formals for $380,000 Coco Partners purchased the assets of Nelson & Sons Formals for $570,000 The combined purchase price was $950,000, approximately two times the represented net profit of each business. Each purchase consisted of a down payment, a promissory note, a cash payment at closing, and broker commissions. Although the sellers were Nelson Formals and Rychards Formals, none of the sale proceeds were received by those entities. All net proceeds were deposited into a Charles Schwab account held by Nelson & Sons Rentals, Inc. Both promissory notes were assigned to Nelson & Sons Rentals, and all payments under the notes were made to that entity. Richard Nelson controlled the flow of all purchase consideration through Nelson & Sons Rentals. Shortly after closing, Fielitz discovered discrepancies between the pre‑sale information and the actual operations of the businesses. Payroll data understated the number of employees. Additional employees were paid in cash and not reflected in the records. Actual payroll expenses were substantially higher than disclosed. Sales figures for 2015 were overstated by approximately $113,000 across both stores. Actual sales for 2016 and 2017 were consistent with the lower corrected figures. Within months of closing, Coco Foods and Coco Partners required outside financing to continue operations. Coco Foods obtained lines of credit and incurred credit card debt, all personally guaranteed by Fielitz. Fielitz invested personal funds to keep the businesses operating. Despite these efforts, the businesses were unable to stabilize financially. In February 2017, Fielitz attempted to sell both companies but received no viable offers. Nelson & Sons Rentals received $383,954 from the Coco Partners transaction, and $255,968 from the Coco Foods transaction. In September 2017, Nelson & Sons Rentals was dissolved. At dissolution, the Schwab account held approximately $340,000, all accessible to Richard Nelson as sole owner. The court held that structure and formalities do not shield transactions from attack. Funneling proceeds through controlled entities did not protect recipients from liability. Disclaimers of reliance and boilerplate acknowledgments proved ineffective, as the court valued the transaction holistically rather than mechanically. In some cases, complex structures may actually increase exposure, where value flow and control are misaligned. As Judge Grossman noted: The Defendants’ argument fails to recognize that the statutes authorizing the recovery of constructively fraudulent transfers are drafted neither to reward the debtor, nor to punish the defendant for intentional wrongdoing. Rather, the basic intent of constructive fraudulent conveyance statutes is to protect creditors of a debtor from transactions where assets of a debtor’s estate were transferred for less than fair value. Richard Nelson, who was the principal for each of the corporate defendants and orchestrated the structure of the transactions, may believe that he cleverly outwitted the principal of the debtors, but his maneuvers do little as a matter of law to protect the recipients of the fraudulent transfers from liability in these actions. To the extent they as transferees have statutory or other legitimate defenses to such actions, they must assert them in the adversary proceeding itself. Having failed to assert any defenses, the recipients are liable for the fraudulent conveyances. The Court notes that Richard Nelson directed the flow of all consideration paid by the debtors to an entity he controlled. Neither that entity nor Richard Nelson transferred anything of value to either Coco Foods or Coco Partners. Like the LBO and MCA cases, Coco demonstrates that layered entities and transactional complexity will not obscure where value actually went. Informal Contemporaneous Statements Can Override Transaction Documents In Teligent, the court notably credited the debtor’s CEO’s contemporaneous newspaper interview over the negotiated separation agreement, concluding that loan forgiveness was a voidable transfer The case illustrates how informal explanations like emails, interviews, and casual descriptions can outweigh carefully drafted agreements. Teligent is also a reminder that any transaction that eliminates a claim, obligation, or enforcement right should be evaluated as though cash changed hands. Teligent, Inc. was a telecommunications company that filed for Chapter 11 bankruptcy. Alex Mandl was Teligent’s former Chairman and Chief Executive Officer. Prior to joining Teligent, Mandl served as President and Chief Operating Officer of AT&T. On September 1, 1996, Mandl entered into an employment agreement with Teligent’s predecessor to serve as Chairman and CEO. As part of the same transaction, Mandl borrowed $15 million from Teligent’s original shareholders, evidenced by two promissory notes. In 1998, the notes were assigned to Teligent. The employment agreement included several provisions under which the loan would be automatically forgiven; the loan would be automatically forgiven if Mandl was terminated “other than for Cause” or if he resigned for “Good Reason,” subject to notice requirements. Good Reason included Teligent's failure to comply with any material provision of the employment agreement, including a breach of the provision committing Teligent to employ Mandl as its Chairman and CEO, with the customary duties and responsibilities. If Mandl was terminated for Good Reason, his Notice of Termination had to detail the facts and circumstances claimed as the basis for the termination. Upon termination of his employment, Mandl was required to resign from the board. On the first anniversary of employment, one‑fifth of the principal and all accrued interest were forgiven automatically, leaving a remaining balance of $12 million. On April 17, 2001, IDT Corp. acquired a controlling interest (approximately 41.1%) in Teligent’s Class A common stock. As part of this transaction, new directors affiliated with IDT were installed on Teligent’s board. The board composition changed substantially following IDT’s acquisition. Mandl’s employment was terminated after IDT assumed control. A Separation Agreement and Release, dated April 27, 2001, provided that Mandl’s employment was terminated “other than for cause,” Mandl resigned as Chairman, CEO, and from all board positions, and mutual releases were exchanged between Mandl and Teligent. The agreement restructured forgiveness of the $12 million loan into 20 annual installments, effectively canceling Mandl’s repayment obligation. Mandl signed the separation agreement on May 8, 2001, and Teligent’s general counsel signed on May 17, 2001. The newspaper interview that the court found more credible was made within months of his departure. The court concluded that the statements in the interview indicated that Mandl was not forced to resign but voluntarily separated. He stated that he was disappointed that the board rejected his $700 million recapitalization plan and he had already discussed the possibility of resigning with the board. Conclusion The sharp increase in commercial bankruptcies in early 2026 signals an equally sharp rise in avoidance litigation. Recent decisions make clear that courts are increasingly focused on substance over form and creditor impact over transactional labels. Transactions that load debt, shift risk, or extract value during periods of distress or transition are especially vulnerable. As filings continue to climb, sponsors, lenders, directors, officers, and asset buyers should assume that past transactions will be reexamined with fresh skepticism and prepare accordingly.
March 30, 2026
Labor and Employment
JFK–Bessette: When an Employee Becomes the Headline—How Much Control Do Employers Have Over Public Image?
Ryan Murphy’s dramatization of the relationship between Carolyn Bessette Kennedy and John F. Kennedy Jr. offers an extreme illustration of a workplace issue that employers increasingly face—when an employee’s personal profile begins to impact the brand he or she represents. Long before becoming part of one of the most scrutinized couples of the 1990s, Bessette worked in public relations at Calvin Klein, managing celebrity relationships and helping shape the company’s public image. But as media attention surrounding her relationship with Kennedy intensified, the publicity began to compete with the brand she was responsible for promoting, creating a distraction from the very image she had been hired to help manage. While that story took place decades before social media, it highlights a question employers continue grappling with today: how much control does an employer have over an employee’s public image when it affects the company’s reputation? The answer, in most cases, is that employers have some ability to regulate conduct that legitimately affects the business, but that authority is limited. Employers, understandably, care about how their workforce reflects on the organization. In roles such as public relations, marketing, executive leadership, and client-facing positions, employees function as ambassadors for the company’s brand. When public attention turns toward an employee, whether by media coverage or viral online exposure, that attention can easily spill over onto the employer. That concern is no longer confined to celebrities or high-profile executives. In the digital era, the separation between employees’ professional and personal lives has narrowed dramatically. Social media allows posts, comments, and photographs to circulate widely within hours, and it often makes it easy to connect individuals to their employers. As a result, situations that once affected only public figures can now involve employees at every level of an organization. To manage the negative side of that risk, many companies implement policies addressing employee conduct outside the workplace. These policies include social media guidelines governing how employees reference their employer online and restrictions on public statements that could be perceived as representing the company, and confidentiality provisions protecting internal information. When employees serve as public-facing representatives of the brand, employment agreements may also include reputation or morality clauses allowing employers to respond when an employee’s conduct creates reputational risk. Nonetheless, employers’ authority to control employee conduct has limits. Even when reputational concerns are legitimate, companies must balance their interests against employee rights. For example, some states protect lawful off-duty conduct, which could limit an employer’s ability to discipline employees for activities outside the workplace that have no connection to their jobs. Similarly, under federal labor law, employees have the right to discuss workplace conditions, publicly in some instances, if those discussions constitute protected concerted activity. In addition, employers also must be mindful of discrimination risks. If workplace image policies are enforced against some employees but not others, those decisions can expose the employer to claims of disparate treatment. Consistency in enforcement is therefore critical when reputational concerns arise. The lesson for employers is not that they should attempt to control employees’ personal lives. Rather, employers should focus on clearly defining expectations that relate to legitimate business interests. Well-drafted social media policies, consistent enforcement practices, and thoughtful training for managers can help organizations navigate situations where an employee’s public image intersects with the company’s reputation.
March 30, 2026
Estates and Trusts
Will‑Challenge Litigation: Forensic Expert Cross‑Examination
Estate litigation rarely turns on a single moment, but an effective cross‑examination of the other side’s forensic document examiner may be one’s best shot at that “Perry Mason moment.” When a will’s authenticity is in dispute, the expert’s testimony is counted on to provide the foundation upon which one’s entire case rests. Successfully reducing their document authenticity evidence to a mere guess based on conjecture can provide that Jenga-like moment of removing that pivotal piece and watching the tower of blocks come crashing to the floor. And while jurists routinely remind us that experts are “advisory,” anyone who has tried one of these cases knows that a confident expert with a clean narrative can carry enormous weight. The inverse is equally true: a shaky expert can unravel a proponent’s case in minutes. The Real Work Begins Before the First Question Effective cross‑examination starts long before the expert takes the stand. Forensic document analysis is a discipline built on methodology, not mystique. Every document authenticity opinion, whether about signatures, ink, paper, toner, or page substitution, rests on a chain of decisions made by, or in some situations, forced upon the expert: what they examined, what they ignored, what they assumed, and what they concluded. Mapping that chain is the key to exposing weak or even missing links. Several pre‑trial “to dos” can be expected to pay consistent dividends: Pin down the expert’s universe of materials. What known samples of the author’s handwriting, known as “exemplars,” were used? Who selected them? Were they contemporaneous with the questioned handwriting? Were they originals or scans? Identify methodological “shortcuts.” Did the expert deviate from published standards? Did they rely on subjective impressions or conduct objective testing? Trace the chronology. When did the expert receive the documents? Were they sealed? Was the chain of custody documented? Did the expert know the litigation posture before forming opinions? By the time cross‑examination begins, one’s goal should not be to surprise the document examiner. If properly prepared, there won’t be one of those “gotcha moments” as there was on every single episode of Perry Mason. The goal rather, should be to walk the court through the expert’s own process and let the weaknesses reveal themselves. Where Forensic Opinions Tend to Break Down Most will‑challenge cases involve one or more of the following: (i) handwriting analysis; (ii) ink and/or paper dating; (iii) indentation analysis; (iv) spectral imaging; and/or (v) digital or toner evaluation. Each offers its own pressure points, which if sufficiently exploited, can be expected to reveal a lack of reliability. Handwriting and signature analysis often falters on the quality and quantity of exemplars. An expert’s reliance on a narrow or non‑representative sample, exposes vulnerabilities which any good forensic expert already knows. The smaller the sample size and the less representative of the decedent’s handwriting at the time of the document being challenged, the less reliable the opinion regarding authenticity. Ink and paper dating can be powerful, but only when the expert can articulate the limits of the testing. Many methods can rule out a date but cannot confirm one. Indentation and page‑sequence analysis is only as strong as the expert’s documentation. Missing photographs, incomplete notes, or ambiguous impressions create fertile ground for doubt when appropriately exposed. Spectral imaging can detect alterations, but courts expect the expert to explain what the imaging cannot show. Overstatements are often more damaging than gaps. Digital forensics requires a clear explanation of how the expert distinguished between original signatures and those that have been scanned or mechanically reproduced. Ambiguity here tolls the death knell. Cross‑examination succeeds when it forces the expert to concede the limits of their discipline without appearing combative. Most judges will tend to appreciate clarity over theatrical “A-ha!’s.” The Most Persuasive Cross‑Examinations Share a Common Structure The strongest cross‑examinations in will‑challenge litigation tend to follow a predictable arc: Establish the expert’s own standards. Let the expert define what “reliable methodology” means. Demonstrate where the expert departed from those standards. Even small deviations can undermine confidence. Highlight what the expert did not do. Courts understand that omissions matter as much as findings. Expose assumptions. Many forensic conclusions rest on untested premises, e.g., about timing, custody, or exemplar authenticity. Return to the ultimate opinion. By the time the expert restates it, the court should already see its fragility. The goal is not to “win” a battle of experts. It is to give the court a principled reason to discount the soundness of the other party’s process underpinning the conclusion the expert ultimately reached. Why This Matters in Today’s Estate Litigation Landscape Modern will contests increasingly involve blended families, high‑value estates, and digital documents. Consequently, powerful forensic testimony is often the centerpiece of probate-related document authenticity disputes. Courts expect practitioners to understand not only the legal standards, but also the scientific ones. A well‑executed cross does more than weaken an opposing expert. It reinforces the broader narrative, i.e., that the proponent of an alleged will or other testamentary document bears the burden of establishing authenticity, and that doubts grounded in methodical, fact‑driven questioning are legally significant. Weighing Conflicting Forensic Reports in Will Contests Conflicting forensic reports are no longer the exception in will‑challenge litigation; they are the norm. As estates grow more complex and documents increasingly blend handwritten, printed, and digital elements, courts are routinely asked to choose between dueling experts who appear equally credentialed and equally confident. Navigating the conflict is far more structured than many litigants appreciate. Understanding that structure is essential to presenting (or defending against) a challenge to a will’s authenticity. What Judges Look for First: Methodology, Not Conclusions When two experts disagree, courts do not start with the bottom‑line opinion. The starting point, appropriately, ought to be the methodologies relied upon to get there. Harken back to grade school math class with me for a moment. It wasn’t enough to tell the teacher the answer was “12.” You had to show your work if you expected the credit. How you got to 12 was more important than the correct answer, in fact, objectively, “12.” The difference, of course, is that forensic document examination still relies on expert opinion, even if the discipline is built principally on SWGDOC and ANSI/ASB standards, OSAC-reviewed standards under NIST, relevant ASTM standards, and generally accepted forensic document examination methodology, including validated testing techniques and reproducible procedures. For a trier-of-fact, judge or jury, to trust an expert’s subjective opinion in this context, the extent of one’s gray-haired “eminence grise” and years of relevant experience will likely count for something, sure, but scrutinizing the objective path taken to reach the subjective conclusions may prove to be the only differentiator upon which the fact-finder may be forced to rely. If two seemingly equally credentialed experts have reached opposing conclusions, strict adherence to process is necessarily relevant and ought, therefore, to be critically scrutinized so as to appreciate the full extent to which the expert or experts: Consistently applied recognized standards Documented each step of the examination Used appropriate exemplars and controlled conditions Avoided assumptions about timing, authorship, or custody An expert who followed a disciplined, transparent process will almost always be favored over one who relied on subjective impressions or incomplete testing, even if the latter’s conclusion appears more definitive. So be critical of your own expert, seeming to fall too easily into the trap of giving you precisely the answer you want to hear. Assess the foregoing factors in his or her work prior to finalizing the expert’s disclosure and/or report. Imagining the ease with which you, yourself, would elicit such weaknesses on cross-examination should provide more than sufficient fodder for “rehabilitating” your own witness well before they ever need it. The Weight of “Negative” Findings Courts often give greater weight to findings that rule out authenticity than to those that merely support it. For example: Ink that post‑dates the decedent’s death Paper inconsistent with the claimed execution period (or inconsistent pages within the document itself) Toner or printer characteristics that did not exist at the time Indentation patterns showing pages were added or substituted Evidence of any one of these findings may prove dispositive. As difficult as they are to explain away, a single disqualifying inconsistency can undermine an entire document. How Courts Evaluate Competing Signature Opinions Handwriting analysis remains the most commonly contested component of will‑challenge litigation. I’m not aware of any statistical analyses, but my own limited research efforts confirm that it is much easier to find published cases challenging signature authenticity above all other factors. Perhaps this is more a factor of which types of cases are more likely to settle when expertly identified. With that in mind, it is fair to anticipate a high probability that cases coming before the court for resolution involve experts on both sides reaching different conclusions about signature authenticity. With conflicting opinions regarding the signature itself, key potentially distinguishing factors include the following: The number and quality of exemplars each expert used Whether the expert relied on originals or degraded copies The expert’s ability to articulate and exemplify specific stroke‑level comparisons Whether the expert acknowledged natural variation in the decedent’s writing Judges are going to be wary of conclusory statements like “the signature is consistent with the writer’s hand” unless supported by detailed, observable features. In other words, simply saying it, does not make it so no matter how many gray hairs on the expert’s head or letters after their name. When presenting one’s case, one must assure that the expert provides articulable evidence of both consistencies and inconsistencies. The Role of Chain of Custody and Document History Even the strongest forensic opinion can be weakened if the document’s history is murky and/or if the document reflects a significant change of course from the decedent’s previously documented planning for the benefit of a beneficiary who is also the source and proponent of the document. Courts scrutinize the following: Who possessed the will and when Whether the document was sealed or stored securely Whether any party had the opportunity to alter or replace pages Whether the expert knew the litigation posture before forming an opinion A clean chain of custody enhances credibility; a compromised one amplifies doubt. When Experts Cancel Each Other Out In some cases, the court finds both experts credible but inconclusive. When that happens, judges must shift their focus to the surrounding circumstances: The decedent’s prior estate‑planning patterns The relationship between the decedent and the beneficiaries Evidence of undue influence, isolation, or last‑minute changes Testimony from witnesses to the execution The presence (or absence) of earlier, consistent wills Forensic science informs the ultimate decision, but the broader factual landscape often decides it. The Practical Reality: Courts Want a Reason to Trust One Expert Judges are not expecting perfection or 100% certainty. They are looking for credibility, consistency, and restraint. An expert who acknowledges limitations, explains uncertainties, and grounds every conclusion in documented observations is typically far more persuasive and effective than one who overreaches and speaks only in terms of “all or nothings” (e.g., refuses to acknowledge anomalies and/or steadfastly claims to a high degree of certainty). In will‑challenge litigation, the most effective strategy is not to “win the science,” but to “trust the process” and give the court a principled, fact‑driven basis to trust your expert’s path to the conclusion. To that end, cross-examination should be directed at establishing grounds to distrust the other side’s process, the totality of which will include more than just their expert. One would do well to prepare for expert cross-examination in this context, as exposing not only the weaknesses in the expert’s process but recognizing, as well, that the expert’s ultimate conclusions are only as strong and trustworthy as the weakest link in their opinion chain.
March 26, 2026
DC Rental Act in Three Minutes
The DC RENTAL Act in Three Minutes: A New Series
In this kickoff episode of The DC RENTAL Act in Three Minutes, Offit Kurman attorneys Brian Dorwin, Gwen Roy Harrison, and Rob Donahue introduce the sweeping legislative changes that took effect in Washington, DC on January 1, 2026. The DC RENTAL Act—passed just one day earlier—marks one of the most significant shifts in landlord tenant law the District has seen in years. The team explains why this reform was long overdue. In 2024 and 2025, DC became an outlier in delinquencies and strained landlord tenant relationships. Affordable housing projects were destabilized, and many multifamily owners faced foreclosure or default. The RENTAL Act is the City Council’s attempt to correct course and bring greater balance and predictability to the system. Over the coming weeks, Brian, Gwen, and Rob will break down the Act’s most impactful components, including changes to court procedures, protective orders, TOPA, public safety evictions, and the new 10- and 30-day notice requirements. Because the law took effect so quickly, DC Superior Court is already interpreting it in real time—meaning early rulings are emerging, but many questions remain open. This series will help property owners, managers, and industry professionals understand how the RENTAL Act is being applied today and what to expect as litigation and guidance continue to develop throughout 2026.
March 25, 2026
Labor and Employment
Continued Disparities in Joint-Employer Status Laws
Updated on April 23, 2026 On April 22, 2026, the U.S. Department of Labor announced a plan to create one nationwide standard from multiple federal laws for when two or more employers can be jointly liable for workplace offenses. The proposed rule, as published in the Federal Register, would eliminate the current disparate treatment of joint employer status under various federal laws, including the Fair Labor Standards Act, the Family and Medical Leave Act, and the Migrant and Seasonal Agricultural Worker Protection Act. The proposed singular rule would reduce the previous “economic realities” tests to just four criteria: (a) the power to hire or fire, (b) the ability to supervise or control a worker's schedule, (c) the power to determine the rate and method of payment to the worker, and (d) maintaining a worker's employment records. The new rule would not eliminate the disparities present in state laws discussed in the article below but would provide important clarification and simplification of federal laws on joint employer status. The new rule could also provide more guidance which may potentially resolve conflicting rulings in federal courts. Federal law provides baseline joint‑employer standards under the National Labor Relations Act (as interpreted and enforced by the National Labor Relations Board) and the Fair Labor Standards Act (as interpreted and enforced by the U.S. Department of Labor). States, however, have increasingly adopted their own joint‑employer rules, often broader and more worker‑protective. The result is an assortment of rules in which a business may be a joint-employer under state law but not under federal law or potentially even under the Fair Labor Standards Act but not the National Labor Relations Act. National Labor Relations Act and National Labor Relations Board: Current Law The operative rule is the 2020 Trump-era “direct and immediate control” standard. The following is a summary of the key developments that led to the current framework. The 2020 standard established that to be deemed a joint employer, an entity must exercise "substantial direct and immediate control" over essential terms and conditions of employment. Workers were required to demonstrate this level of control by another entity over another entity's employees. On October 27, 2023, the NLRB published a final rule that rescinded and replaced the 2020 rule. The proposed new rule would have dramatically broadened the standard by establishing that two or more entities may be considered joint employers if each: Has an employment relationship with the employees; and Shares or codetermines one or more of the employees' essential terms and conditions of employment. On March 8, 2024, Texas federal judge J. Campbell Barker vacated the 2023 rule, holding that the test was unlawfully broad, as it would have allowed an entity to be deemed a joint employer with or without any exercise of meaningful control over the relevant employees' terms and conditions of employment. As the 2023 rule never took effect, the prior 2020 rule remained the operative rule. The NLRB formalized this by revising its regulations, effective February 27, 2026, to replace the vacated regulatory text with the 2020 rule. The NLRB had filed an appeal of the Texas court's decision in 2024, but given the change in administration and the formal February 2026 withdrawal of the 2023 rule, the broader Biden-era standard appears definitively off the table for now. Fair Labor Standards Act and U.S. Department of Labor: Current Law Similar “back and forth” changes have occurred in the U.S. Department of Labor’s joint-employer criteria. The DOL’s current joint-employer criteria under the Fair Labor Standards Act (FLSA) and other federal employment laws hinge not only on whether two or more businesses, through association, share "substantial direct and immediate control" over an employee's essential terms and conditions—specifically hiring, firing, discipline, supervision, and pay—but also on the “economic realities” of the relationship of each employer to the employees. The current DOL focus is on whether a business "meaningfully affects" a worker's employment. Key Aspects of Joint Employment (FLSA/DOL) Influence Over Essential Terms and Conditions: Includes hiring, firing, discipline, supervision, and pay. Horizontal Joint Employment: Exists when an employee works for two separate employers who are sufficiently associated (e.g., shared employees, common management). Hours worked for both must be combined for overtime pay. Vertical Joint Employment: Occurs when an employee of an intermediary (like a staffing agency) is economically dependent on another employer (the client). Key Considerations Control vs. Association: The test is not just about ownership but whether they share control. Overtime Liability: Joint employers are jointly responsible for compliance, including overtime, for all hours worked. Key Aspects of DOL Joint-Employer Criteria Control and Association: A joint employment relationship exists when employers share control over essential terms and conditions of employment, such as hiring, firing, payroll, and supervision. Totality of the Circumstances: No single factor determines the status; it is based on the entire relationship, including shared facilities, overlapping management, and interconnected business operations. Shared Personnel: An employee works for two different entities, such as two restaurant locations, in the same workweek. Coordinated Operations: Employers share managers, a kitchen, or other resources. Economic Reality: The worker is economically dependent on both potential joint employers. This pre-2020 FLSA standard now governs wage-and-hour joint-employer liability, particularly for franchisors, staffing agencies, and companies using third-party contractors. Different Applications of the FLSA by Different Courts In 2024, the Supreme Court’s decision in Loper Bright Enterprises v. Raimundo overturned the legal doctrine known as Chevron deference, meaning courts now exercise independent judgment in interpreting statutes and do not defer to agency interpretations simply because a statute is ambiguous. However, prior cases upholding specific agency actions remain good law. As a result, while DOL regulations and guidance remain influential, federal courts now independently interpret the FLSA’s joint-employer provisions, focusing on statutory text and the economic realities of the employment relationship. Consequently, employers in different federal court jurisdictions may be subject to different joint-employer criteria. Patchwork of Differing State Laws State joint-employer laws and regulations vary substantially across states. Some states coincide with or expressly follow federal standard. Other states have adopted independent and more expansive tests, with the result that some employers that are not joint employers under one or both federal laws are joint employers under one or more state laws. The broader state tests include criteria such as: Economic dependence frameworks Statutory expansions targeting industries such as franchising or subcontracting The result is a fragmented legal landscape where joint‑employer status depends heavily on jurisdiction, industry, and the specific statute(s) that apply to the employer’s operations. Industry‑Specific Joint‑Employer Rules Some states impose joint‑employer obligations in targeted sectors: Construction (e.g., wage theft statutes making general contractors liable for subcontractor wages) Janitorial services (e.g., California’s Property Service Workers Protection Act) Agriculture (e.g., state migrant worker protections) Fast food (e.g., California’s recent reforms) Federal law does not have comparable industry‑specific joint‑employer statutes. Key Practical Takeaways Under the NLRA: The narrower 2020 standard applies, requiring actual, substantial, and direct control over employment terms to establish joint-employer status. Under the FLSA: A similar pre-2020 standard governs, but joint-employer liability for wage-and-hour purposes may be more easily established based on potential or indirect control, considering a variety of relevant facts. Businesses that utilize independent contractors, including franchise business models, should remain wary of these evolving standards. This is an area of active legal and regulatory change, so consulting an employment attorney for advice specific to your situation is strongly recommended, along with regular review of federal and state laws that may apply to your operations.
March 24, 2026
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