Landlord Representation
Landlord Liability for Tenant Safety: Lessons from the Jason Billingsley Case
In recent years, courts have taken a closer look at what landlords must do to keep tenants safe, especially when property owners give employees access to residents’ homes. A major example is the civil case that followed the violent attacks committed by Jason Billingsley in Baltimore. The lawsuit, filed by survivors April Hurley and Jonte Gilmore, resulted in a jury awarding more than $21 million in damages against the landlord and related property management entities. The case provides a powerful study in landlord liability, negligent hiring, and premises safety law. In September 2023, Billingsley, who had been hired as a maintenance worker and given access to tenant areas, knocked on April Hurley’s door, identified himself as “maintenance,” and claimed there was a water leak in her kitchen that needed immediate attention. Once inside, Billingsley violently assaulted Hurley and Gilmore inside the apartment and set fire to the premises. Days later, he murdered tech CEO Pava LaPere in a separate incident. Billingsley ultimately pled guilty to two counts of attempted first-degree murder, one count of first-degree murder, and was sentenced to life in prison. Hurley and Gilmore brought a civil lawsuit against the property owner and management company. Their argument was not that the landlords committed the assaults, but that their negligence made the assaults foreseeable and preventable. The case illustrates three central doctrines of landlord liability: Negligent Hiring Negligent hiring occurs when an employer or property owner fails to exercise reasonable care in selecting someone for a position that poses a risk to others. Maintenance workers typically have: Master keys Unsupervised access to private units Knowledge of tenant schedules and vulnerabilities In this case, the plaintiffs argued that the landlord failed to conduct a reasonable background check before hiring Billingsley. Given his prior violent criminal record, which included convictions for assault in 2009, 2011, and 2013, the plaintiffs contended that giving him access to tenants’ apartments created a foreseeable risk of harm. The defendants argued that Billingsley was not an employee. According to reporting by the Baltimore Banner, one of the management company’s owners testified that he met Billingsley at a bar and subsequently allowed him to reside in one of the complex’s apartments rent-free in exchange for completing “odd jobs” around the property. A jury agreed with the plaintiffs, finding that reasonable property managers would have investigated his background and that the failure to do so constituted a breach of duty. Premises Liability Under premises liability law, landlords owe tenants a duty of reasonable care to maintain safe conditions on the property. Traditionally, this doctrine covered physical hazards (e.g., broken stairs or inadequate lighting), but modern courts increasingly recognize that safety can include protection from foreseeable criminal acts. The key legal question is foreseeability: Was the harm reasonably predictable? Did the landlord’s conduct increase the risk? The jury concluded that giving a person with a violent criminal history unrestricted access to tenant homes made the harm foreseeable. Breach of Lease and Implied Warranty of Habitability Residential leases carry an implied promise that the premises will be safe and habitable. While this doctrine historically addressed structural conditions, plaintiffs argued that tenant safety includes reasonable screening of employees granted intimate access to living spaces. Although the negligent-hiring theory was central, contractual duties reinforced the broader argument that landlords must safeguard tenants’ security. Why the Verdict Matters The jury’s multimillion-dollar award sends a strong signal about evolving expectations for landlords: Access equals responsibility. The more access an employee has to private living spaces, the higher the duty of care. Background checks are not optional in high-risk roles. Courts may treat failure to screen as unreasonable when foreseeable harm results. Tenant safety extends beyond physical maintenance. Security policies and hiring practices can create liability. Importantly, this was a civil negligence case, not a criminal proceeding. The standard of proof was “preponderance of the evidence,” meaning the jury had to find it more likely than not that the landlord’s negligence caused the harm. Broader Legal Implications The case may influence: Property management industry standards Insurance underwriting requirements Corporate risk policies for residential landlords Litigation strategies in negligent security cases Landlords are not insurers of tenant safety — they are not automatically liable for all crimes on their property. But when their own actions increase the risk of foreseeable harm, courts may impose substantial financial consequences. The litigation arising from the Jason Billingsley case demonstrates how landlord liability can extend beyond broken locks and dim hallways. When property owners place individuals in positions of trust and access without reasonable vetting, they may face significant civil exposure. The defendants have appealed the jury’s ruling, and the case is currently pending before the Appellate Court of Maryland. For landlords, the lesson is clear: tenant safety includes not only maintaining the building, but also carefully screening the people given keys to it.
March 3, 2026
Business
Investor Equity Placement: Why HoldCo vs. OpCo Matters
When a searcher or independent sponsor brings in outside capital, the conversation often centers on valuation and percentage ownership. But an equally important question is structural: Should the investor hold equity in the operating company (OpCo) or in the parent holding company (HoldCo)? This decision carries meaningful legal, economic, governance, and strategic implications. It affects dilution, future capital raises, control dynamics, exit flexibility, and long-term alignment. The analysis also becomes more nuanced depending on the investor’s role and non-monetary contributions. Consider a common scenario: a sponsor raises $2 million to acquire a $10 million HVAC company, with plans to pursue add-on acquisitions over time. In a roll-up strategy like this, what if one investor brings domain expertise, sourcing capabilities, or operational leadership that materially influences growth? That strategic contribution may justify equity at the HoldCo level, where the investor participates in platform-wide upside and profits. By contrast, a passive investor whose involvement is limited to board oversight may be more appropriately placed at the OpCo level, particularly in a single-asset acquisition. Of course, this assumes the target will operate as a subsidiary rather than being merged into an existing operating entity — which is itself a separate structural decision. An investor in this scenario will usually see investment income flow solely from OpCo (instead of the entire portfolio of companies). The structure and placement of an investor's equity is rarely mechanical. It should reflect strategy, bargaining power, long-term vision, and investor expectations. The considerations below provide a framework for both searchers/sponsors and investors to consider when evaluating this decision. The Two Primary Structures Investor Holds Equity at the Portfolio Company Level (OpCo) Under this structure, the investor owns equity directly in the acquired operating business. OpCo is typically maintained as a standalone entity or as a clearly defined subsidiary beneath a holding structure. Key Implications The investor’s economics are tied solely to the business of OpCo Governance rights are limited to decisions within OpCo Exit proceeds flow from the sale or recapitalization of OpCo The investor has no direct rights to unrelated subsidiaries or future acquisitions Common Use Cases Single-asset traditional search fund deals One-off independent sponsor acquisitions Transactions without a broader platform thesis Situations where negotiation dynamics support a narrower investment scope Advantages Structural simplicity Clear alignment around a single asset Cleaner distribution waterfall Reduced complexity in governance documents Easier return modeling tied to one business Risks and Considerations Limited investor participation in future add-on acquisitions Potential need to restructure if platform ambitions later emerge Dilution of equity will occur at the operating level if additional capital is raised, although usually unlikely unless part of a larger restructuring Misalignment if investors expect exposure to future platform growth OpCo equity works best when the investment thesis is narrowly defined and neither party anticipates a broader multi-asset strategy. Many first-time searchers/sponsors and their investors will fall into this structure. Investor Holds Equity at the Parent Holding Company (HoldCo) In this structure, a parent entity owns one or more subsidiaries, and the investor holds equity at the parent level. Key Implications The investor participates in the economics of all subsidiaries beneath HoldCo Add-on acquisitions can be completed without issuing new OpCo equity Governance is centralized at the parent level Platform value creation accrues across the entire enterprise Common Use Cases Platform or roll-up strategies Independent sponsor models contemplating multiple acquisitions Long-term scaling plans involving additional capital raises Advantages Centralized governance and decision-making Easier implementation of sponsor promote structures Ability to allocate management incentive equity across subsidiaries Greater flexibility for future capital formation Risks and Considerations Increased complexity in operating agreements and shareholder documents Need for carefully drafted distribution waterfalls Cross-subsidiary economic exposure if not properly structured Greater sensitivity to dilution stemming from future equity financing More robust negotiation of protective provisions and investor rights HoldCo structures reward forward planning but require thoughtful drafting and clear alignment among stakeholders. Legal and Governance Considerations In practice, HoldCo structures centralize power and economics at the parent level, while OpCo structures localize rights and obligations within a single operating entity. Where the investor equity sits directly impacts: Voting rights and approval thresholds Board composition and observer rights Protective provisions Information and reporting rights Drag-along and tag-along mechanics Transfer restrictions and liquidity rights Put and call rights, if negotiated If the investor sits at HoldCo, governance documents must anticipate: Future equity issuances Add-on acquisitions and layered capital structures Sponsor promote mechanics Reallocation of advisor and/or employee incentive equity pools Distribution waterfalls across multiple subsidiaries Potential conflicts between legacy investors and new investors If the investor sits at OpCo, documentation tends to focus more narrowly on: Operating distributions Exit triggers tied to a single asset Seller rollover alignment These differences materially affect control and economics. They also influence negotiations with senior lenders, particularly where covenants intersect with equity commitments. Strategic Questions Before Deciding Before finalizing entity placement, sponsors and investors should consider: Is this a single-asset investment or the foundation of a broader platform? Are add-on acquisitions part of the near-term or long-term strategy? Will additional investors likely participate in future rounds? How centralized should governance be? What is the intended exit pathway (strategic sale, recapitalization, long-term hold)? How does the structure align with sponsor promote economics and incentive equity? Does the investor bring strategic value beyond capital? Common Structural Mistakes Frequent errors to keep in mind (and avoid): Defaulting to OpCo equity without evaluating long-term platform goals Granting HoldCo equity without clearly defining dilution mechanics Misaligning promote structures with entity placement Overlooking interaction between investor rights and senior debt covenants Ignoring tax, estate, or succession planning implications Treating entity placement as a documentation detail rather than a strategic decision These choices are difficult to unwind and can create friction during future capital raises, refinancings, or exits. Final Perspective Bringing on an investor is not merely a capital event. It is a structural decision that defines governance, economics, capital formation, and exit flexibility. Whether you are a search funder acquiring your first business, an independent sponsor building a scalable platform, or a family office co-investing alongside operators, the level at which equity is issued matters. The best structures anticipate the second deal before the first one closes. Structure intentionally. Plan forward. Align incentives early.
March 3, 2026
Intellectual Property
Britney Spears' Music Catalog Sale Highlights Rise in IP Deals Across the Music Industry
Britney Spears is the latest cultural icon to monetize her intellectual property by selling the rights to her entire music catalog to publisher Primary Wave for an estimated $200 million. This landmark agreement encompasses over two decades of hits and underscores a surging industry trend in which creators convert the long-term value of their IP portfolios into immediate capital. Spears joins a growing list of major artists (including Bruce Springsteen, Bob Dylan, Justin Bieber, and Katy Perry) who have recently brokered massive nine-figure transfers of their publishing and recorded music rights. For artists evaluating their intellectual property strategy, liquidating a catalog offers compelling advantages. The chief and obvious benefit is the immediate, guaranteed lump-sum payout an artist receives, which protects the artist from the uncertainties of fluctuating streaming revenues and shifting market trends. Additionally, a sale relieves the artist and their heirs from the complex, ongoing administrative burdens of managing copyright rights, negotiating licensing deals, and auditing royalties. The firms that acquire these rights assume the responsibility of actively pitching the catalog for lucrative placements in film, television, and commercial branding, by using their resources to maximize the IP's reach. However, cashing out requires artists to make significant trade-offs, the most notable drawback being the forfeiture of long-term royalty streams. If the music's value spikes due to a viral trend or a high-profile placement, the publishing firm reaps the financial windfall, not the creator. Furthermore, artists often surrender the ultimate right to control how their work is commercialized, opening the door for their music to be licensed for campaigns or media they might otherwise have rejected. In today’s highly charged political climate, this trade-off is not insignificant. This monumental sales strategy highlights the immense, tangible value of a well-protected IP portfolio, illustrating the careful balance creators must strike between immediate financial certainty and the long-term stewardship of their brand.
March 2, 2026
Mergers and Acquisitions
Preparing to Sell: The Most Common Deal-Killing Mistakes Business Owners Make, and How to Avoid Them
For many middle-market business owners, 2026 could present an ideal window to explore a sale. With financing markets improved and private equity (PE) sitting on significant amounts of dry powder, strategic buyers are in a prime position to pursue acquisitions that offer them growth and efficiency. Smart sellers will be prepared to take advantage of these improved conditions and strike while the iron is hot. But even in healthy deal environments, deals can fall apart, and most of these failures are preventable. As a corporate M&A attorney, what I typically see are the same avoidable issues that derail transactions. Below, we look at the most common mistakes business owners make before going to market and most importantly, how to avoid them. Sloppy or Unvetted Financials An easy way to erode buyer confidence is to present unreliable financials. Buyers expect clean financial statements, normalized EBITDA with clearly supportable add-backs, transparent revenue recognition policies, and thorough documentation. This requires significant preparation and engagement of advisors early in the process (at least 12 to 24 months before a contemplated sale). Taking the time to get your financials in order can help reduce friction, prevent re-trades, and ultimately protect your company’s valuation. Failure to Clean Up Your House Failure to clean your corporate house before going to market is a very common mistake owners make. Before engaging in any sale process, sellers should take a critical look at everything in the business, making sure it is all in order. This includes ensuring customer contracts are in writing, properly assignable, and free of any change of control termination rights that can present problems. Vendor agreements should also be scrutinized, making sure they clearly document pricing terms and are commercially sustainable. Do your debt structures contain restrictive covenants? And are your equity records and governing documents accurate and up to date? Is your intellectual property ownership properly documented? A deep dive into all of this and more is critical. Buyers do not like surprises in the diligence process. Further, having to “clean-up” the business in front of the buyer can cost credibility as well as deal value. Conducting a thorough pre-sale legal audit can help eliminate surprises as well as the costly delays (or worse). Limiting the Potential Universe of Buyers Assuming you already know your ideal buyer can be a major mistake. Many owners assume they will sell to a competitor or a PE firm, but the universe of buyers in 2026 is much larger. Limiting yourself to only certain types of buyers can materially depress value. Today’s buyers span strategic acquirers seeking bolt-on growth, family offices in search of long-term cash flow, international buyers looking to enter the US market, and more. To ensure you are maximizing your valuation and considering all options, there must be a broad, well-run process to vet buyers. This will increase competitive tension, which in turn, drives up the price and lays the groundwork for better deal terms. Overlooking Tax Structuring Tax structuring is not an afterthought. It must be a part of the strategy. After all, taxes drive transactions. How your transaction is structured matters. Whether it is an asset sale, stock sale, rollover equity arrangement, or partial liquidity event, it can materially impact net proceeds. Therefore, it is important to coordinate early with both legal and tax advisors who can dramatically change the “after-tax” outcome of your transaction. That is the number that truly matters. The Owner is the Business There are some red flags that buyers look for in an acquisition in relation to the owner and their role within the organization: Is the owner the primary salesperson? Are they the sole keeper of customer relationships? Are they the only decision maker? Without the owner, does the organization run into an operational bottleneck? If the answer is yes to these questions, then you do not have a truly transferable business. This creates a real issue for buyers, as they discount businesses that rely entirely on a founder. They want systems and processes in place, depth of management, and a company that can exist without its owner. Start working early to develop a solid management team, formalized processes, and institutionalized customer relationships to decrease risk and increase value. Failure to Incentivize Key Employees When key employees start to feel uncertain or that they are unprotected, it can negatively impact a transaction. Employees want some clarity, and buyers are looking for continuity. That means you must plan and communicate regularly and effectively. Retention plans, bonuses tied to the transaction, or equity offers are all incentives that can help preserve stability during and after the close. Failure to Plan Ahead Selling a business is a major financial event, but it is also a significant life transition. Most owners have spent years, if not decades, building their business, and it has become a part of their identity. So, it is surprising that they don’t often consider the role they will play (if any) with the company moving forward. Nor do they consider what’s next. What lies beyond the day after the sale? These might seem like afterthoughts, but they are not. They must be considered upfront so that expectations with the buyer are clearly communicated and there is no tension or dissatisfaction on either end. Waiting Too Long to Involve Advisors If you wait too long to involve your legal and financial advisors, you may have already lost your leverage. You cannot wait until you have received an unsolicited offer. Involving advisors early in the process is the key to success and to avoiding the mistakes we have discussed. Reach out to your advisors 12-24 months before considering a sale so that you can address any issues and ensure preparedness. By engaging experts early on, you are shortening diligence timelines and strengthening your negotiating position. And remember, valuation can be significantly eroded by avoidable preparation failures. Prepare your business, and yourself, for the outcome you want.
March 2, 2026
Tax
Tariff Litigation & Section 122 Tariffs
On February 20, 2026 the U.S. Supreme Court issued a landmark decision in Learning Resources, Inc. v. Trump holding that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose tariffs. The decision invalidates the reciprocal tariffs and trafficking/immigration tariffs imposed in 2025 under IEEPA and confirms that the power to impose tariffs lies with Congress. The Court did not prescribe a refund mechanism; that responsibility now falls to the U.S. Court of International Trade (CIT) and U.S. Customs and Border Protection (CBP). Within hours of the decision, the Administration imposed a new 10% tariff under Section 122 of the Trade Act of 1974 (now 15%), effective February 24, 2026, and limited to 150 days (absent congressional action). This creates two immediate opportunities: Refund claims for prior IEEPA tariffs (available to domestic and foreign companies) Advisory and planning work related to new Section 122 tariffs and potential replacement regimes (Section 232/301) What Changed: 1. IEEPA Tariffs Invalidated The Supreme Court ruled that IEEPA does not authorize tariff imposition. IEEPA tariffs imposed in 2025 are unlawful ab initio. Refunds are not automatic. Importers must act. 2. Section 122 Tariffs Now in Effect 15% tariff on most imports entered on or after February 24, 2026 Limited to 150 days (approx. expires July 24, 2026 unless extended) USMCA-qualified goods excluded “Goods on the water” exception for certain shipments loaded before Feb 24 and entered before Feb 28 This is a temporary bridge. Section 232 (tariff imposed for national security) and 301 (tariffs imposed on foreign products to counter unfair trade practices) actions may follow. Who May Have a Refund Claim: Those who: Imported goods between February 2025 and February 24, 2026 Paid additional IEEPA ad valorem duties Are the importer of record Have entries that are unliquidated or recently liquidated Did not yet file a protective Court of International Trade (CIT) action Refund claims are available to domestic and foreign companies – the controlling factor: who is the Importer of Record on the customs entry Important: Only IEEPA duties are refundable — not Section 232 or 301duties. Downstream buyers may have contract-based reimbursement claims. Areas Where Offit Kurman Can Assist You: 1. Tax Litigation / Customs Litigation Refund analysis and quantification Protest filings Protective CIT litigation Federal Circuit appeals Strategic coordination of administrative and judicial remedies 2. Transactional Tax Tariff deductibility analysis Accounting method considerations Timing of refund recognition Contingent asset treatment Structuring to mitigate future tariff exposure 3. Corporate & Business Structuring Restructuring importer-of-record status Creating new import entities Evaluating transfer pricing implications Risk allocation between affiliates Supply chain realignment 4. Commercial Contracts Review of tariff pass-through clauses Reimbursement rights for downstream buyers Force majeure and change-in-law provisions Supplier renegotiation strategy Indemnification enforcement 5. Commercial Litigation Claims between buyers and suppliers over tariff allocation Breach of contract actions Indemnity disputes Class or coordinated actions among distributors 6. Restructuring & Insolvency Tariff-driven liquidity pressure Claims valuation in bankruptcy Recovery of tariff refunds as estate assets Documents You Should Be Gathering: Entry summaries (CF 7501) Duty payment records Liquidation dates PSC filings Contracts allocating tariff responsibility ACE and ACH refund account status SKU lists affected by Section 122 Bottom Line: IEEPA refunds are potentially significant. Deadlines are running. Section 122 tariffs create immediate planning needs. If you import goods, manufacture overseas, distribute foreign products, or rely on cross-border supply chains, connect with Offit Kurman for consultation.
March 2, 2026
Labor and Employment
Safeguarding Your Business in an Era of Restrictive Covenant Scrutiny
For years, businesses have relied on non-competes and broad confidentiality agreements to protect themselves when employees leave. That approach is changing. Courts and regulators are increasingly wary of restrictions that limit employee mobility, as reflected in the last several years of activity by the Federal Trade Commission, the National Labor Relations Board, and state legislatures. This shift, however, is not anti‑business. It is aimed at curbing overbroad restraints that prevent former employees from earning a living. In many respects, it reflects a return to the true purpose of restrictive covenants: protecting legitimate business interests and competitive advantage. As a result, employers’ litigation focus is moving away from preventing former employees from simply joining competitors and toward examining whether company information was improperly taken or used. In practical terms, protecting the business now centers on protecting its data. Importantly, restrictive covenants are not dead. Properly tailored covenants remain enforceable in most jurisdictions and continue to play a meaningful role in safeguarding legitimate interests. Courts are far more likely to enforce restrictions that are narrowly drafted, periodically reviewed, and tied to an employee’s role and access to sensitive information. Employers should therefore refine—not abandon—restrictive covenants to ensure they can withstand scrutiny. Within this framework, data protection operates as a supplement to, not a replacement for, other restrictive covenants, providing an added safeguard if contractual restrictions are narrowed or fail. Most businesses are not harmed simply because a former employee takes a new job. Rather, the harm occurs when something leaves with that employee: customer lists, pricing strategies, internal processes, technical know‑how, reports, or analytics. To qualify for protection, this information must be valuable, not generally known, and subject to reasonable safeguards. Modern disputes increasingly turn on trade secret principles under the Defend Trade Secrets Act and comparable state laws. Courts focus less on contractual labels and more on whether the company actually treated the information as valuable. Effective protection requires more than labeling information “confidential.” At hiring, employees should be clearly informed about the information they will access and the limits on its use. At departure, employers should require exit certifications confirming that devices were returned, company files were removed from personal accounts, and no information was retained or forwarded. This process alone prevents many disputes and creates a clear record if concerns later arise, allowing employers to investigate based on objective representations rather than speculation. During employment, employers increasingly rely on monitoring tools that provide objective evidence of whether files were accessed, transferred, or retained improperly. Courts are generally more receptive to such technical proof than to assumptions based solely on an employee joining a competitor. The takeaway is straightforward. Courts are becoming less concerned with where a former employee works and far more concerned with whether protected information was misused. Businesses best positioned going forward will not be those with the longest non‑compete agreements, but those that can show they identified their critical information and consistently safeguarded it.
February 27, 2026
Tax
Top Audit Red Flags Businesses Shouldn’t Ignore
My recent blog, So, The IRS Has Selected Your Return for Audit, discussed the four types of IRS audits. What factors may trigger an audit of a business’s income tax return? The presence of multiple red flags in a business’s income significantly raises the likelihood of an audit. Round Numbers While rounding 49 cents up to 50 cents is not problematic—the IRS instructs you to round cents up or down for whole dollar amounts—reporting $10,000 of income from a customer instead of the actual $10,089 or reporting depreciation of $7,500 instead of $7,448 is. The algorithms the IRS uses to select returns for audit are programmed to identify rounding like this because the IRS knows (as we all do) that transactions are rarely in exact round amounts. Claiming Excessive Expenses The IRS compares your deductions against deductions for similarly situated businesses, using figures from returns filed by businesses similar in size and industry sector. The IRS has a bell curve for each category of expense. These figures are tweaked by the Taxpayer Compliance Measurement program. Similarly, your business expenses must be ordinary and necessary. Ordinary means the expense is a type common in your business’s industry sector. Necessary means the expense is helpful for your trade or business. If your business’s figures are excessive as measured against the IRS’s figures or the types of expenses are different than what the IRS routinely sees for businesses of your size or type, the chance of your return being audited increases. The more categories your figures are above the norm or are different from what the IRS usually sees, the greater the chances of an audit. It is also a matter of degree. Being slightly high in several categories is not necessarily an audit flag, but being very high in a few categories is a red flag. It is important to mention business use of automobiles. As a result of changes to the law in the Tax Cut and Jobs Act of 2017, the ability of employees to deduct unreimbursed business expenses was all but eliminated. However, self-employed persons (which includes partners in an entity classified as a partnership for federal income tax purposes) can still deduct business use of automobiles. Claiming 100% business use is a red flag. Likewise, because of accelerated depreciation associated with heavy SUVs and large trucks, the IRS may look twice at purchases near the end of the tax year. So, take advantage of that year-end sale but have the records to substantiate the business purpose and use. Misreporting Income First, beyond rounding cents, don’t round. Second, just because you didn’t receive a 1099 doesn’t mean the payor didn’t file the 1099 with the IRS. If you know you are missing a 1099, call the payor and ask for it otherwise this brings up the next flag. Large Cash or Large Numbers of Cash Transactions Some businesses naturally have large cash transactions or large numbers of cash transactions. If a cash transaction is over $10,000, financial institutions are required to file a currency transaction report (CTR). Breaking a cash transaction into smaller transactions to avoid the CTR threshold is known as structuring and is a crime under federal law. If your business deals in cash, keeping an accurate record of all transactions and documentation is essential in the event of an audit. Real Estate Rental Losses The IRS has strict rules regarding the ability to deduct losses from real estate rental against other income. For those who are not real estate professionals, which means you spend more than 50% of your working hours and more than 750 hours each year materially participating as a developer, landlord, or agent, you must own at least 10% of the value of all interests in the activity (spousal interests are combined for this threshold test) and you must actively participate in the operations of the rental property in the year in which the loss is claimed and in the year in which you seek recognition of the loss. If you meet these requirements, then you may deduct $25,000 of losses from real estate rental activity. This deduction phases out beginning with an adjusted gross income (AGI) of $100,000 and is completely phased out once AGI reaches $150,000. Deducting Hobby Losses Only losses incurred in a trade or business are deductible, which means you are engaging in the activity with the reasonable expectation of making a profit and you conduct the activity in a business-like manner. If your activity three out of every five years (two out of seven years for breeding horses), the IRS presumes that the activity is for profit. If not, whether the activity is for profit depends on the facts and circumstances. If you claim losses year after year, which is common among start-up businesses, your business will likely be audited. As with other areas, substantiation of expenses is imperative. Misclassification of Employees Whether a worker is an independent contractor, in which case your business issues them a 1099 at year end, or an employee, in which case your business issues the worker a W-2, is a hot bed item with the IRS and the U.S. Department of Labor. If a worker is misclassified as an independent contractor, then your business (and potentially you personally) owe employment taxes and withholding, plus interest and penalties. As with other areas, proper documentation (which includes agreements setting forth the worker’s independent contractor status) are essential. If your workers are employees (W-2) consistently filing and paying payroll taxes (941s) will also trigger additional scrutiny that likely will result in an audit. Claiming the R&D Tax Credit The R&D credit is great—if your business qualifies and if your business substantiates the credit. The One Big Beautiful Bill Act (OBBBA) reversed a 2022 law that required businesses to amortize research and development expenses over a five-year period. Businesses are now permitted to expense R&D costs immediately. The OBBBA also provided additional relief for small businesses that applied the new rule retroactively for the 2022 through 2024 tax years. Unscrupulous promoters (for a fee that is a percentage of the R&D credit) offer to analyze a business’s records to see if the business can claim the R&D credit retroactively. Often these promoters try to persuade a business to claim routine expenses as R&D activities to qualify for the R&D credit (which increases the promoter’s fee). Activities that are not eligible for the R&D credit include modifying an existing product, customer-funded research, research after commercial production, or research on a product about which there is no doubt about the expected result (this merely confirms what the company already knows). With proper substantiation costs for these activities still are deductible, just not eligible for the R&D credit. Growing and Selling Mary Jane Despite the current administration’s proposed rescheduling of marijuana, it is still a controlled substance at the federal level. It does not matter to the IRS that marijuana is legal in your state. Because it is illegal, expenses (other than cost of goods sold) incurred in the production, distribution, and sale, even if permitted under state law, are not deductible. Here is the real burn—you must still report and pay taxes on the income generated from your marijuana business. Because marijuana is illegal at the federal level, it also means if you invest in a marijuana business you can’t deduct investment losses. It also means you cannot use your self-directed IRA to invest in marijuana businesses. Bummer man. Home-Office Expense Deduction If you can take the home-office deduction (see Claiming Excessive Expenses above regarding restrictions on the ability to deduct unreimbursed business expenses incurred by employees), to claim the deduction you must use the space exclusively and regularly as your principal place of business. Guest bedroom, bonus room where the kids watch TV or play X-Box? Nope. Exclusive means exclusive. In the IRS’s eyes, returns that claim the home-office deduction is a target rich environment. Don’t paint a bullseye on your back. In the end, avoiding an audit is not about fear—it is about diligence. By keeping accurate records, understanding which expenses truly are allowed, and steering clear of overly aggressive tax positions, businesses can reduce their audit risk significantly. Most importantly, thoughtful documentation and consistent business practices provide the strongest defense should the IRS come knocking.
February 25, 2026
Construction
A Primer on Mechanics’ Lien Claim Waivers in Pennsylvania
Waiver of mechanics’ lien claims is an important and frequent issue on construction projects. There are various approaches to lien claim waivers, depending on the type of project and the preferences of the parties. Because of the various types of lien claim waivers, there is often confusion. This article explains the different types of lien claim waivers. An initial fundamental point regarding mechanics’ lien claims and waivers, is that they are creatures of statute. Each state has its own laws that govern mechanics’ liens and waivers. There is no universal, national law that governs. Instead, each state has its own statutes and interpretation of the law. Additionally, mechanics’ liens generally cannot be asserted against public projects. Advance Lien Claim Waiver Versus Progress or Final Lien Claim Waiver One categorical distinction between lien claim waivers is whether they apply in advance of the work, versus lien claim waivers that are executed during the progress of the project and apply to work performed as of the date of the waiver. An “advance” lien claim waiver is executed prior to the work being performed. Accordingly, it waives lien claim rights before doing the work. Most states prohibit advance lien claim waivers. In Pennsylvania, however, advance lien claim waivers are enforceable, but only on specific types of projects, and only if specific requirements are met (more on that below). In contrast, a progress or final lien claim waiver is executed during the project, or after the work is completed, and it typically clarifies that it applies to the work already performed. The standard approach is to identify a “through date,” which means that the waiver applies to all work performed “through” a certain date. Typically, the “through date” would be a prior date that has already passed, and the lien claim waiver states that it is effective to waive lien claim rights for all work performed up to and including that date. Typically, progress lien claim waivers are executed with each payment application. None of the “through dates” are future dates—which would instead be an advance lien claim waiver. Progress and final lien claim waivers are effective and enforceable. In Pennsylvania, for advance lien claim waivers to be effective, it must be a commercial project (non-residential), and a payment bond must be posted that covers the project. Also, the advance lien claim waiver is only effective to waive downstream (subcontractor/supplier) lien claim rights. The prime contractor with a direct contract with the owner cannot waive lien claim rights in advance, and the payment bond is posted by the prime contractor (so the payment bond does not cover the prime contractor’s demands for payment). Conditional Versus Unconditional Lien Claim Waivers Another categorical distinction in lien claim waivers is “conditional” versus “unconditional.” A conditional lien claim waiver identifies that it is only effective if certain conditions (typically pending payment) occur. Thus, for example, with a conditional lien waiver, it will expressly state that the waiver is “conditioned” on the future receipt of the identified payment. If the identified payment is not received, then, the waiver (even if executed) is unenforceable. Unconditional lien claim waivers, on the other hand, expressly state that the payment has already been received, and that there are no other requirements or events to occur for the lien claim waiver to be effective. Typically, these lien claim waivers identify themselves with the words “unconditional,” and they often state that the payment identified has been “received in fact,” or “received in hand.” Complications can arise when payment has not in fact already been received; yet, an unconditional lien claim waiver (stating that payment has already been received) is erroneous executed. Generally, it is fair and reasonable to insist that lien claim waivers accurately express whether the payment has in fact already been made, or whether a conditional lien claim waiver should be used instead, because the payment is pending and not yet received. It is also appropriate to revise or annotate a lien claim waiver to expressly state that certain claims, disputed amounts, open change orders, etc., are preserved and not waived. This avoids confusion on whether the payment was intended to cover any disputed, open, or unresolved items. Preliminary Notices of Lien Rights, Construction Notices Directory, and Other Requirements Lien claim waivers are specific documents that address whether a lien claim has been waived or preserved. Different and separate from lien claim waivers are statutory requirements that must be satisfied in order to preserve or pursue lien claims. Most states, including Pennsylvania, have requirements to notice and enforce lien claims. If you fail to satisfy all the requirements, including timeliness, it is likely that your lien claim will be lost. Pennsylvania, similar to most states, has certain requirements that must be fulfilled when pursuing lien claims. In Pennsylvania, certain projects may be eligible for registration on the Construction Notices Directory, which is maintained by the Department of General Services. If a project is registered, then, the requirements under the mechanics’ lien law that pertain to the Construction Notices Directory must be followed; otherwise, the lien claim may be lost. One such requirement is to provide (and file with the Directory) early notice of potential lien claim rights. Additionally, in pursuing a lien claim, certain processes must be followed; otherwise, the lien claim may be lost. In Pennsylvania, as a general rule, if the claim is by a subcontractor or anyone who is not in direct contract with the property owner, then, the claimant must give advance notice to the property owner of the intent to file the lien claim. Also, any claimant, whether a downstream subcontractor/supplier or the prime contractor must meet specific deadlines in pursuing the lien claim. And the substance of any notices or lien claim filings must fulfill the statutory requirements. Failure to timely notice or file any of the items, or failure to adhere to the substantive requirements, will often result in the lien claim being unenforceable. These requirements for noticing and pursuing the lien claim are not technically “waivers,” of the lien claim, but failure to follow the rules may result in the same outcome—the lien claim being lost and unenforceable. This article also appears in the February 2026 edition of the Spokesman, a publication of ABC Keystone.
February 25, 2026
M&A Nuggets
M&A Nuggets: Stop Signs
Contrary to popular belief, most business purchases do not succeed. That is not necessarily a bad thing, because occasionally the best deal is the deal that does not happen. To avoid closing a bad deal, the acquiror should be on the lookout for big red stop signs. Some stop signs are obvious, like material litigation, declining revenues, downward profits or a seller that engages in a particularly risky business. Some stop signs are not so obvious. These more subtle stop signs can spell disaster for a business combination. Examples include: a lack of symmetry in business culture between the purchaser and the seller the seller’s lack of proper recordkeeping, such as poor financial books and records, corporate documents or human resources files a seller who is unable to express a rational reason for sale a seller who appears recalcitrant in its position and/or somewhat aloof in the negotiation process Special attention should be paid to these last two items. Starting early in the process, the acquiror should ask a seller about its motivation to sell and its plans for devoting resources to the sale, and then track whether the seller’s actions follow its words. Otherwise, an acquiror could be negotiating with a seller who is not “all in,” wasting months of time and resources on a fruitless endeavor.
February 23, 2026
Labor and Employment
Employer Use of AI Wage-Setting Tools: Risks, Bias Concerns, and Employer Responsibilities
As employers increasingly adopt artificial intelligence to streamline compensation decisions, the promise of efficiency must be carefully balanced against significant legal and ethical risks. AI‑driven wage‑setting tools can help analyze market data, standardize pay ranges, and reduce human error, but only when the underlying data and algorithms are reliable. When these systems rely on incomplete, outdated, or biased inputs, they may unintentionally replicate or even worsen existing disparities. For example, algorithms trained on historical pay data can reinforce gender‑ or race‑based wage gaps, regardless of an employer’s intent. Lawmakers are also signaling that wage‑setting algorithms will not operate in a regulatory vacuum. Over the last year, legislators in California, Colorado, Georgia, and Illinois have introduced bills to curb discriminatory or opaque uses of AI in compensation decisions. Several states, including Georgia, Illinois, Maryland, and New York, are renewing or expanding these efforts in 2026. Many of these proposals reflect a growing concern that businesses may rely on personal data unrelated to job duties – such as biometric characteristics, behavioral patterns, or even parental status – to generate so‑called “optimized” pay rates. Employers should remember that AI does not shield them from longstanding legal obligations. Anti‑discrimination statutes, equal pay laws, and wage‑and‑hour requirements apply regardless of whether a human or an algorithm drives the recommendation. With state activity accelerating, employers should take a proactive approach to assessing their exposure and strengthening internal controls over wage decisions. Regular pay‑equity audits, careful review of the data inputs and assumptions behind AI tools, and meaningful human involvement in all compensation decisions are essential steps to ensure employers can meet emerging legal standards and maintain fair, compliant pay practices. By reinforcing these safeguards now, organizations will be better positioned to adapt as regulatory requirements continue to evolve.
February 23, 2026
Labor and Employment
A Practical Guide to Collective Bargaining: Strategies, Obligations, and Best Practices for 2026
Collective bargaining remains one of the most important processes governing labor–management relations in the United States. For organizations preparing for negotiations in 2026 and beyond, the key to success is understanding not only the legal framework, but also the strategy, preparation, and interpersonal dynamics involved. This outline walks through the essentials of collective bargaining under the National Labor Relations Act (NLRA), along with practical techniques, negotiation tactics, and preparation tips drawn from decades of labor‑relations practice. What Is Collective Bargaining? Collective bargaining is the structured process by which an employer and a union negotiate wages, hours, benefits, and working conditions of employees represented by the union. The outcome is a Collective Bargaining Agreement (CBA), a binding contract that sets those terms for a defined period. The process is regulated by the National Labor Relations Act, which preempts state labor laws for private employers. Though every negotiation is unique, all follow a similar progression. Collective bargaining typically unfolds in several key phases: Preparation - Both sides analyze the existing CBA, gather economic and operational data, and develop proposals. Negotiation - Each party presents its proposals, discusses priorities, and responds to the other side’s demands. Agreement - Once consensus is reached, the parties draft a written agreement or memorandum of understanding. Ratification - The union’s membership votes on the agreement, and the employer formally approves it. Implementation The new CBA takes effect, often retroactively if negotiations extend past the previous contract’s expiration. The Legal Duty to Bargain Section 8(d) of the NLRA requires both parties to meet at reasonable times and negotiate in good faith over mandatory subjects such as wages, hours, and working conditions. Importantly, neither party is required to agree to any specific proposal, nor must they make a concession. Types of Bargaining Subjects Mandatory Mandatory subjects are those that “vitally affect” wages, hours, or working conditions. Examples include: Compensation and incentive pay Pension and benefit plans Paid and unpaid leave Discipline and discharge Seniority Work rules Grievance procedures Employers may not make unilateral changes to mandatory subjects without bargaining. Permissive Permissive subjects are relevant, but not central to working conditions They include definition of the bargaining unit, internal union procedures, and terms for non-unit employees. Parties may negotiate these, but neither side can be forced. Illegal Illegal subjects are topics prohibited by law, and include closed shop provisions, hot-cargo agreements, and discriminatory clauses based on race, religion, sex, age, disability, national origin, or union activity. Understanding these categories helps both sides stay compliant and focused on productive negotiation topics. Good Faith vs. Bad Faith Bargaining Good-faith bargaining is legally required and is the foundation of the negotiation process. It requires sincerity, openness, and a genuine desire to reach an agreement. What Good‑Faith Bargaining Looks Like: Meeting at reasonable times Making concessions and counteroffers Providing relevant information upon request Engaging in meaningful discussion Drafting written agreements when terms are reached Importantly, good faith does not require either party to accept proposals or make concessions they find unacceptable. Automatic Violations of Good Faith Certain actions are considered violations regardless of intent: Making unilateral changes to mandatory subjects before the impasse Bargaining directly with employees instead of the union Refusing to meet or discuss mandatory subjects Refusing to sign a written agreement reached at the table Other Signs of Bad Faith The National Labor Relations Board may also infer bad faith from patterns of behavior, such as: Delaying tactics Unreasonable demands Withdrawing previously agreed‑upon terms Failing to designate a representative with authority to bargain Attempting to bypass the union Good‑faith bargaining is not just a legal requirement—it is essential to building trust and reaching durable agreements. The Duty to Provide Information Under the National Labor Relations Act, both the employer and the union must provide information relevant to bargaining, resolution of grievances, or contract administration. Failure to provide information can result in: Unfair labor practice charges Conversion of an economic strike to an unfair labor practice strike Delayed or invalid impasse claims Even vague or burdensome requests may need to be answered, and requests cannot be ignored simply because they involve confidential information. Preparing for Negotiations Preparation is the backbone of successful bargaining. Management’s team typically includes: A chief spokesperson Financial and cost specialists HR representatives Operations experts A note‑taker Decision makers with authority The NLRA prohibits either side from interfering with the other’s choice of representatives, and employers cannot limit the size of a union bargaining team. Economic data collection is essential. Key sources include: Bureau of Labor Statistics (CPI, wages, employment data) Bloomberg Law contract settlement databases Local and industry CBA comparisons Teams should identify desired changes, anticipate union demands, prioritize issues, and prepare arguments with supporting data. Negotiation Strategies and Tactics Collective bargaining is both a legal process and a strategic exercise. Successful negotiators understand the unwritten rules, anticipate the other side’s priorities, and maintain discipline throughout the process. Experienced negotiators follow unwritten norms, such as: Neither party expects to get everything it asks for Parties begin with broad proposals and refined goals Early progress often focuses on non‑economic issues Major issues are typically addressed closer to contract expiration Common Bargaining Styles Auction bargaining - High opening proposals lowered incrementally. Trade‑off bargaining - Movement on one issue in exchange for concessions on another. Blue‑sky bargaining - Unrealistic initial demands with slow movement. Illegal Bargaining Styles Boulwarism - Presenting a single “fair, firm offer” and refusing to negotiate. Surface bargaining - Pretending to bargain with no real intent to reach an agreement. Experienced and successful negotiators operate from a realistic, “give and take” perspective that often involves some of the following tactics. Acknowledge the other party’s views Use real‑world examples Highlight points of agreement Ask open‑ended questions Keep negotiations fair, calm, and professional Build trust, rapport, and momentum Running Effective Bargaining Sessions The first meeting sets the tone and bargaining climate. Each party makes an opening statement, establishes schedules and routines, and exchanges initial proposals. Unions typically present more than they expect to receive, setting room for concessions. At the next session— usually the second meeting— the parties clarify demands, understand priorities, and begin evaluating economic impacts. This is critical for setting expectations and building negotiation strategy. For subsequent sessions as the deadline approaches sessions become more frequent, offers and counteroffers accelerate, committees may handle complex issues, and tentative agreements (TAs) are recorded clause-by-clause. Best Practices: Tips, Tricks, and Traps Collective bargaining has elements of skill. Skilled negotiators will recognize the other party’s perspective, provide clear explanations and supporting data, often ask open-ended questions, keep discussions focused and productive, and importantly remain calm and respectful. The most effective teams are well‑prepared, unified, and strategic in how they present and defend their proposals. Here are some hints and tips: Treat all early agreements as tentative until the full contract is settled. Document everything—written summaries, session notes, and caucus discussions. Never lose your temper, even if provoked intentionally. Avoid claiming you “cannot afford” a proposal, which could obligate financial disclosure. Caucus frequently to regroup or strategize. Build momentum through small agreements. Always preserve the authority and credibility of the chief negotiator. Advanced Negotiation Techniques Certain techniques may be useful for resolving conflicts and finding common ground. These include: (a) caucuses, which are private discussions of each negotiating team that are used to refine proposals, assess costs, or cool tensions; and (b) so-called “sidebar” meetings, which are private meetings between lead negotiators to break logjams or explore sensitive options. Trust is essential. If negotiations stall, the Federal Mediation and Conciliation Service (FMCS) can facilitate resolution by suggesting compromises, tradeoffs, or settlement formulas. Understanding Impasse An impasse occurs when good‑faith negotiations no longer offer a realistic path to agreement. When negotiations stall, executives and in-house counsel must navigate a complex landscape of legal standards, operational risks, and strategic considerations. Understanding impasse and mediation is essential to avoiding missteps that could escalate conflict or trigger legal exposure. After impasse is declared: Employers may implement their last, best, and final offer—but only positions already proposed before impasse Strikes and lockouts may occur The duty to bargain is suspended, not terminated Impasse may be broken by events, such as new proposals, the passage of time, strikes, or changed economic conditions. Business Decisions and “Effects” Bargaining Employers must bargain over employment-related decisions such as layoffs or production quotas, but not over core entrepreneurial decisions like closing a business unit. However, even when not required to bargain the decision, employers must bargain over the effects of that decision—timing, transition issues, severance, etc.—at a meaningful time. Key Questions for Upcoming Negotiations Collective bargaining is one of the most consequential legal processes an organization undertakes. It shapes labor stability, operational flexibility, cost structure, and long‑term workforce relations. For executives and in‑house counsel, the goal is not simply to negotiate a contract — it is to manage legal exposure, protect enterprise interests, and ensure compliance with federal labor law at every stage. Below are some key questions that may help achieve these goals. What are the union’s likely demands? Which CBA provisions are most problematic for management? What changes does the company desire? What internal or external constraints shape negotiation limits? Final Thoughts Effective collective bargaining is both an art and a science—grounded in legal requirements but shaped by preparation, data, trust, communication, and strategy. With thoughtful planning and disciplined execution, organizations can reach agreements that are fair, workable, and sustainable for both labor and management.
February 20, 2026
Real Estate
Delaware Non-Consolidation Opinions: A Critical Tool in Structured Finance Transactions
In sophisticated commercial real estate and other finance transactions, bankruptcy risk is not an abstract concern; it is a central underwriting consideration. One of the primary legal tools used to manage that risk is the Delaware non-consolidation opinion. Although these opinions are now standard in many large transactions, their purpose and legal foundation are often misunderstood by deal participants who do not regularly work with Delaware entity structures. This article explains what a Delaware non-consolidation opinion is, why lenders require it, and what transaction counsel should understand about its scope and limitations. What is a Delaware Non-Consolidation Opinion? A non-consolidation opinion addresses whether, in the event of a bankruptcy filing by a parent entity or affiliate, a bankruptcy court would be likely to substantively consolidate that entity with a related but legally separate borrower. In most real estate finance transactions, the borrower is a Delaware-organized single-purpose entity formed specifically to own and operate the collateral property. Substantive consolidation is an equitable doctrine developed under federal bankruptcy law. When ordered, it permits a court to disregard entity separateness and treat multiple affiliated entities as a single debtor, pooling assets and liabilities and fundamentally altering creditor expectations. A Delaware non-consolidation opinion does not state that consolidation is impossible. Rather, it provides a reasoned legal analysis concluding that, based on the borrower’s structure and governing documents, a bankruptcy court should not order substantive consolidation, provided that applicable separateness requirements are met. Why Substantive Consolidation Matters to Lenders From a lender’s perspective, substantive consolidation represents a material credit risk. If a borrower’s assets were consolidated with those of an insolvent affiliate, a lender that underwrote a loan based on a discrete collateral package could find itself competing with unrelated creditors in a combined bankruptcy estate. For this reason, lenders, rating agencies, and securitization participants focus heavily on entity separateness. Non-consolidation opinions serve as a risk-allocation mechanism, confirming that the transaction structure is designed to preserve separateness under prevailing legal standards. Why Delaware Law is Central Most special-purpose borrowers in structured finance transactions are organized under Delaware law. As a result, Delaware entity statutes and case law play a critical role in the non-consolidation analysis. While substantive consolidation is governed by federal bankruptcy principles, courts routinely look to state law to determine whether affiliated entities were properly formed and respected as separate legal persons. Delaware’s well-developed body of entity law, together with its emphasis on contractual freedom and corporate formalities, is one reason lenders routinely require that non-consolidation opinions involving Delaware entities be delivered by Delaware counsel. Key Structural Features Analyzed Delaware non-consolidation opinions are transaction-specific, but they typically analyze several core structural features, including: Single-purpose provisions limiting the borrower’s activities Separateness covenants requiring separate books, records, and bank accounts Restrictions on commingling assets or liabilities Independent managers or directors whose consent is required for a voluntary bankruptcy filing Limitations on intercompany indebtedness and guarantees Arm’s-length dealings among affiliates The opinion assumes that these provisions are observed in practice. Failure to maintain separateness after closing can materially undermine the analysis. What These Opinions Do and Do Not Do A Delaware non-consolidation opinion is not a guarantee of a particular bankruptcy outcome, nor is it insurance against future misconduct. It does not address facts that may arise after closing or violations of separateness covenants. Instead, it is a carefully reasoned legal analysis, delivered subject to customary assumptions and qualifications, that allocates bankruptcy risk based on existing law and the transaction’s structure. When Non-Consolidation Opinions Are Required These opinions are most commonly required in: CMBS and CRE securitizations Large commercial mortgage financings Mezzanine loan and preferred equity structures Credit-tenant and master-lease transactions Portfolio financings involving affiliated borrowers As transaction structures have grown more complex, non-consolidation opinions have become a standard closing deliverable rather than an exception. Conclusion A Delaware non-consolidation opinion is not boilerplate. It is a critical component of modern real estate finance transactions and a key element of lender risk analysis. When supported by proper entity structuring and ongoing compliance with separateness requirements, these opinions provide meaningful comfort that borrower separateness will be respected, even in a bankruptcy scenario. For lenders and deal counsel working with Delaware-organized borrowers, understanding the role and limits of non-consolidation opinions is essential—and engaging Delaware counsel with regular opinion experience remains a best practice.
February 18, 2026
Labor and Employment
Severance Packages: Best Practices for Calculating and Communicating Them
Severance decisions sit at the intersection of legal risk, employee relations, and business judgment. For employers, the challenge is not simply deciding whether to offer severance, but determining how much to offer, under what circumstances, and how to communicate it without creating unnecessary exposure. From the employer-side counsel perspective, severance works best when it is approached deliberately—not reactively—and when it aligns with both the reason for separation and the employer’s broader workforce strategy. Understanding the Legal Starting Point Despite common assumptions, severance is rarely required by law. Outside of contractual obligations, collective bargaining agreements, or statutory notice requirements tied to layoffs, most severance arrangements are discretionary. Problems arise when past practice, offer letters, or outdated policies blur that line and create an expectation of entitlement where none was intended. Before discussing numbers, employers should confirm what obligations already exist and whether prior decisions have set informal benchmarks. Consistency matters, but so does clarity about when severance is offered as a business decision rather than a legal requirement. Let the Reason for Separation Drive the Analysis Not all separations should be treated the same, and severance decisions should reflect that reality. A position eliminated due to restructuring presents a very different risk profile than a termination for poor performance or misconduct. Offering severance in situations that contradict the stated reason for termination can undercut the employer’s position if the separation is later challenged. Employer-side counsel often advises against rigid formulas in favor of a framework that considers why the employment relationship is ending, how the decision was documented, and what claims the employee could realistically assert. Severance should reinforce the employer’s narrative—not weaken it. Calculating Severance With Defensibility in Mind While there is no universal formula, employers benefit from anchoring severance decisions to objective factors such as length of service, seniority, and compensation level. These guideposts help ensure internal equity and reduce the risk that severance decisions appear arbitrary or discriminatory. At the same time, employers should preserve discretion. High-risk separations may justify enhanced severance in exchange for a comprehensive release, while low-risk exits may not. The goal is not mathematical precision but defensibility if the decision is later scrutinized. Severance as a Risk-Management Tool From a legal standpoint, severance is most valuable when it is tied to meaningful protections. Employers are not simply paying for goodwill; they are often seeking certainty. A properly structured separation agreement can significantly reduce exposure by resolving potential claims before they become disputes. That tradeoff only works if the consideration offered is proportionate to the risk being addressed. Underpaying for broad releases or overpaying in low-risk situations can create problems. Thoughtful calibration is key. The Importance of Clear, Careful Communication Even well-designed severance packages can create risk if they are communicated poorly. Separation conversations are emotional, and off-the-cuff remarks can later take on outsized significance. Employers should communicate severance in a way that is respectful, measured, and precise, avoiding language that suggests fault, guarantees, or precedent. Employees should understand that severance is being offered in exchange for an agreement, and they should be given adequate time to review. A rushed or confusing process often invites second-guessing—and, in some cases, litigation. Avoiding Unintended Precedent One of the most common employer concerns is that severance decisions will set a precedent for future separations. While consistency is important, employers are not required to treat every departure identically. What matters is whether each decision can be explained based on legitimate business considerations. Maintaining internal documentation of the rationale behind severance decisions—particularly when they deviate from past practice—can be invaluable if those decisions are later challenged. Revisiting Severance Practices Over Time Severance practices should evolve alongside the business. Workforce changes, economic conditions, and developments in employment law can all affect how severance is viewed and valued. Employers who periodically review their policies, templates, and decision-making frameworks are far better positioned than those who rely on habits formed years earlier. Severance is not just an end-of-employment expense. When handled thoughtfully, it is a strategic tool that helps employers manage risk, preserve credibility, and bring closure to difficult transitions.
February 18, 2026
Healthcare
Telehealth Access for Medicare Patients: Consolidated Appropriations Act Extends Key Policies
Healthcare providers that rely on telehealth to serve Medicare patients can continue to do so as a result of an extension of the Medicare telehealth rules that were originally implemented during the COVID-19 Public Health Emergency (“COVID”). On February 3, 2026, the Consolidated Appropriations Act, 2026, H.R. 7148 was signed into law and, among other features, extends key components of the emergency telehealth requirements and will continue to allow for increased provider eligibility, remote care from home, and relaxed site-of-service, all rules upon which providers have extensively relied since COVID. CMS extended these rules in order to provide greater flexibility and remote health care access. Providers should be aware that this extension will only last through December 31, 2027, unless Congress puts a permanent solution in place.
February 17, 2026
Intellectual Property
Beckham v Beckham: The Legal Anatomy of a Very Public Breakdown
If HBO’s writer’s room is looking for its next prestige drama, then they should look no further than the Brooklyn family feud. Brooklyn Beckham, the first son of David and Victoria Beckham, took to his Instagram story to unleash a set of accusations against his family, including allegations of interference with his marriage to Nicola Peltz and “Brand Beckham” priorities. These statements intensified an already rumored family rift dating back to wedding-related disputes. But the most commercially significant feature of this story is not interpersonal conflict; it is that the conflict is playing out inside a high-value brand ecosystem, creating a multijurisdictional intellectual property battle. Once such allegations are made to millions of followers, the situation stops being purely private: it becomes an enterprise risk event that is capable of triggering contractual defaults, insurance notifications, and formal legal positioning, even if nobody wants to ever walk into a courtroom. Viewed through a legal lens, the dispute quickly breaks into several distinct areas of exposure. Defamation Risk (and why wording matters) When accusations are aired on social media, lawyers immediately ask: fact or opinion? Statements framed as verifiable facts that harm reputation can trigger defamation claims, especially when a reputation is also a revenue stream. When endorsements and licensing deals are involved, reputational harm can quickly morph into business tort exposure. “Rights to My Name”: Trademarks as Leverage Brooklyn’s reported complaint that he was pressured to sign away rights to his name pulls the dispute squarely into trademark law. Public reporting suggests the Beckhams registered their children’s names as trademarks while they were minors, with renewals now looming. That matters because whoever controls the mark controls licensing, commercial use, and has negotiation leverage in a family fallout. Contracts, Endorsements, and Morals Clauses Public drama makes brand partners nervous. Endorsement and licensing agreements often include morality clauses, non-disparagement language, and notice requirements. Once a controversy breaks, counterparties will quietly check whether they have termination rights, or at least a reason to renegotiate. Non-Disparagement and Confidentiality in Family Businesses Family empires often run through layers of companies and agreements. If any family members are contractually bound by confidentiality or non-disparagement provisions, public statements can create legal headaches. Enforcement is tricky, though. Injunctions risk free-speech pushback or loss of goodwill, damages are hard to quantify, and over-lawyering can amplify the story instead of burying it. Cease-and-Desist Letters: The First Legal Chess Move Some outlets report that lawyers got involved. From a litigator’s perspective, early correspondence matters: non-privileged pre-litigation letters can become evidence, admissions can haunt later filings, and privilege only protects communications handled carefully. A cease-and-desist letter is more about positioning than the endgame. Media Control, Privacy, and Narrative Wars Complaints about “media manipulation” raise different legal questions depending on jurisdiction. In the UK, privacy and misuse-of-private-information claims loom larger; in the US, privacy torts vary wildly by state. Fame doesn’t erase rights, but it does complicate them. Brand Custodianship and Fiduciary-Adjacent Issues When parents hold intellectual property rights for children, especially through guardian or trust structures, disputes can trigger questions that sound a lot like fiduciary duties: who controlled the asset, who benefited, and whether transitions to adulthood were properly documented. Who’s Authorized to Speak? PR teams, agents, managers, and family members often operate under overlapping authority. When statements fly, lawyers look at who approved what, whether anyone exceeded their mandate, and whether internal PR or confidentiality protocols were breached. In conclusion, Brooklyn’s private grievances should trigger public company-level risk management. The Beckham name is a business after all, and Brooklyn’s public breakdown is risky for the business. Beckham v Beckham is a battle for control. For anyone operating inside a family enterprise or personal brand, the warning is clear: adequate governance, contracts, and IP planning prepare your brand for when that Instagram statement goes live.
February 13, 2026
Landlord Representation
The HUD Administration One Year Review: Withdrawal of Fair Housing Guidance, Administrative Cutbacks, and the Implications for Housing Providers
Approximately one year into the second Trump Administration, the U.S. Department of Housing and Urban Development (HUD) has taken notable steps to reshape the federal fair housing compliance landscape by withdrawing numerous guidance documents issued by HUD’s Office of Fair Housing and Equal Opportunity (FHEO). While these actions do not alter the text of the Fair Housing Act (FHA) itself, they materially affect how housing providers, enforcement agencies, and courts may intepret and enforce the Act. This article examines the substance of HUD’s recent actions, distinguishes between guidance and law, and evaluates the short- and long-term implications for multifamily owners, landlords, managers, and developers. HUD’s Withdrawal of FHEO Guidance: Scope and Substance In September 2025, HUD issued a formal notice withdrawing a substantial number of FHEO guidance documents, effective immediately. These documents—some dating back more than a decade—had provided interpretive frameworks for applying the FHA and related civil rights statutes. Among the withdrawn materials was guidance on: Reasonable accommodations, including assistance and emotional support animals The use of criminal history in tenant screening National origin discrimination and Limited English Proficiency (LEP) considerations Fair housing implications of digital advertising practices Interpretations related to source of income and special purpose credit programs HUD emphasized that these prior guidance documents were non-binding policy statements rather than regulations. Nonetheless, many in the industry heavily relied on these documents. HUD has stated that the withdrawn guidance will no longer be relied upon internally or externally, signaling a meaningful shift in agency priorities. Guidance Versus Law What Changed It is critical to distinguish between interpretive guidance and legal obligation. The withdrawals removed HUD’s detailed, agency-level explanations of how it historically interpreted and enforced certain provisions of the FHA. As a result: Housing providers no longer have HUD-endorsed procedural benchmarks for evaluating certain fair housing issues Compliance frameworks once built around HUD guidance must now rest on statutory text and case law HUD enforcement appears narrowly (if not solely) focused on clear statutory violations and intentional discrimination What Did Not Change Equally important, the withdrawal of these guidance documents did not amend or repeal: The Fair Housing Act Obligations to provide reasonable accommodations for individuals with disabilities Prohibitions against discrimination based on race, color, religion, sex, familial status, national origin, or disability Nor does HUD’s action override state or local fair housing laws, many of which impose broader or more explicit requirements than federal law. HUD’s Enforcement Philosophy after Administrative Cutbacks HUD’s withdrawal of guidance reflects a broader administrative philosophy emphasizing regulatory restraint and reduced reliance on sub-regulatory interpretation. From an enforcement perspective, this suggests: Deprioritizing claims premised solely on noncompliance with previously issued guidance Greater reliance on statutory language and judicial interpretations Increased variability in how fair housing disputes may be evaluated across jurisdictions However, the absence of guidance does not eliminate enforcement risk. FHA complaints may still be filed with HUD, state agencies, or pursued through private litigation, where courts are not bound by HUD’s current enforcement preferences. Practical Implications for Housing Providers For multifamily owners, landlords, managers, and developers, the withdrawal creates both elasticity and uncertainty. First, many compliance programs mirrored HUD’s previous guidance as a best-practice standard. With those benchmarks removed, providers must reassess whether their policies are grounded in enforceable law or agency interpretation alone. Second, documentation and consistency become increasingly critical. In the absence of clear federal guidance, uniform application of policies and well-documented decision-making remain among the strongest defenses to discrimination claims. Third, state and local law take on heightened importance. In jurisdictions with robust fair housing statutes or active enforcement agencies, HUD’s retrenchment may have little practical effect on day-to-day obligations. Looking Forward: Stability Amid Political Change Presidential administrations are, by design, temporary. HUD guidance may be withdrawn, revised, or reissued as political leadership changes. Housing providers who recalibrate their practices solely in response to current administrative signals risk repeated disruption in the future, when new administrations reassess policy priorities. The shrewd path forward remains unchanged: Maintain consistent, legally grounded fair housing policies Ensure staff training reflects statutory and jurisdiction-specific requirements Monitor HUD developments without overreacting to short-term shifts Ultimately, durability—not oscillation with political change—offers the greatest protection against legal risk. Conclusion HUD’s withdrawal of FHEO guidance marks a significant moment in the history of fair housing enforcement. While the move reduces federal interpretive direction, it does not diminish the force of the Fair Housing Act or state and local laws. For housing providers, the path forward lies in steadfast adherence to existing legal requirements, consistency in policy application, and an awareness that today’s regulatory environment may look markedly different under a future administration. Fair housing law has endured across political cycles. Compliance strategies should be built to do the same.
February 12, 2026
Commercial Litigation
When the Chicken Does Come Before the Egg: The Taxpayer-Friendly Takeaways from George v. Commissioner, Plus a Few ‘Egg-cellent’ Judicial Puns
Some tax court opinions are dry. Others are dense. And then there are the rare decisions where the court clearly enjoyed the assignment. George v. Commissioner, T.C. Memo. 2026-10 falls squarely in the third category. From its opening pages, the court signals both the seriousness of the R&D credit issues at stake and its willingness to have a little fun along the way. As Judge Greaves famously framed the dispute: “Forget the proverbial chicken or the egg; today we are called to answer which came first, the research or the research credit?” Clever turn of phrase aside, the opinion delivers something far more important for taxpayers, particularly those in agriculture and other operationally complex industries: a roadmap for how real-world innovation can qualify for the R&D credit when done correctly. The Big Win: The Court Acknowledged That Agriculture Innovates. Full Stop. Before we get to the substance, it’s worth pausing on tone. Over the course of 80+ pages, the court peppers the opinion with references to “ruling the roost,” “sunny-side up,” and other poultry-themed flourishes. That levity is notable because it accompanies a very serious acknowledgment: modern agriculture is technologically sophisticated. The opinion’s humor is not accidental. By leaning into chicken metaphors, the court subtly reinforces its understanding of the industry it is judging. From a litigation perspective, that tone is telling. Courts don’t joke about industries they don’t take seriously. The takeaway? The court was engaged, informed, and analytical, not dismissive. That is good news for future taxpayers who bring better-structured R&D claims to the table. This is reinforced by the court repeatedly recognizing that poultry production involves: Complex biological systems Evolving disease pressures Feed chemistry and nutrient optimization Genetic performance tradeoffs Data-driven decision-making at massive scale Indeed, the court emphasizes that even “small changes having dramatic impacts on profitability” are central to the industry, noting that producers may earn “approximately one penny of profit per pound.” That framing matters. The court did not dismiss these activities as routine farming. Instead, it treated them as legitimate candidates for R&D analysis, rejecting the outdated notion that innovation only happens in laboratories. What the Taxpayer Got Right (and the Court Agreed) Despite ultimately limiting the credits claimed, the court credited the taxpayer with confronting real technological uncertainty, a foundational requirement under §41. The opinion details extensive efforts to address: Disease outbreaks with no clear industry solution Antibiotic-free production pressures Feed efficiency and nutrient absorption challenges Vaccine administration methods and dosage questions Genetic line performance under different conditions The court acknowledged that these efforts involved trial-and-error, failed approaches, and iterative refinement, classic hallmarks of experimentation. In fact, the court goes as far as rejecting the IRS’s argument that data collected by George was “routine” and thus excluded from consideration. Instead, the court rejected the ‘routine’ argument the IRS has been fighting hard to revive. Likewise, the court rejected IRS attempts to repurpose the adaptation exclusion, definitively stating that an improved business component is a different business component. That distinction leaves the door wide open for taxpayers who document their experimentation contemporaneously and intentionally, even when data used for testing is collected during standard production. Practical Lessons the Court Practically Hands to Taxpayers If you read the opinion with an eye toward future claims, the lessons are unmistakable: When possible, articulate uncertainty before acting. This helps avoid the IRS assertion that a company reverse-engineered the research narrative. Design experiments with intent, though they don’t have to look like laboratory work. Document while the feathers are flying. Production data is helpful, but technical reasoning is essential. Separate experimentation from execution. Rolling out a solution is not the same as proving it works. Assume IRS scrutiny and prepare accordingly. The IRS will ask whether the “research” existed before the credit study. Courts will too. These lessons don’t clip the wings of the R&D credit. They strengthen it. The Broader Takeaway: Courts Want Better R&D Claims, Not Fewer For all the poultry puns, George v. Commissioner delivers a serious, taxpayer-friendly message: Section 41 remains viable for real-world businesses that innovate intentionally and document rigorously. The court did not narrow the statute. It did not exclude agriculture. And it did not demand laboratory conditions. It simply required that the research come first—and the credit follow honestly. Final Thought If nothing else, George proves that even an R&D case about chickens can be meaty. Matthew Reddington served as counsel in this matter and played a primary role in securing the favorable outcome for the taxpayers.
February 12, 2026
Family Law
Flirting with Divorce: Social Media’s Silent Role in Broken Vows
Valentine’s Day is marketed as a celebration of love—roses, cards, public tributes, and carefully curated posts declaring devotion. Yet before posting a perfectly worded caption, sending a private message, or striking up a new connection online, whether accidentally or intentionally, it is worth pausing to consider the consequences. What may feel harmless in the moment can quietly alter emotional boundaries, invite comparison, or create intimacy that no longer belongs outside the marriage. There are no longer just two people in today’s marriages. There is a third, non-human, perhaps thought to be non-threating “person”—social media. However, this third entity is silent, omnipresent, and often more dangerous than any physical affair. Social media isn’t just a distraction; it has become a third party in relationships, quietly fueling suspicion, jealousy, and in many cases divorce. What often begins as harmless scrolling—liking a friend’s post, following a coworker’s stories, sending a meme—can quickly spiral into something far more serious. Emotional affairs frequently start online, where boundaries are blurry, and temptation is constant. A spouse may confide in someone over direct messages, flirt through private chats, or even maintain a hidden online persona. By the time the other partner notices, trust has often already been compromised. Scrolling through curated snapshots of other people’s lives only makes matters worse. Vacations, date nights, and seemingly perfect relationships broadcast online can create an insidious sense of dissatisfaction. Suddenly, your own marriage feels dull in comparison, and small online interactions can take on disproportionate emotional weight. A partner’s “likes” on someone else’s posts or private exchanges with friends can sting more than any overt betrayal because they tap into feelings of neglect and inadequacy. Social media doesn’t merely tempt, it reshapes perceptions of your spouse and your life together, creating tension that can escalate into irreparable conflict. Secrecy is easy in the digital age. Hidden accounts, disappearing messages, and private conversations allow people to hide their activities, creating invisible wedges between spouses. Emotional or digital infidelity often goes unnoticed until the damage is severe, leaving a partner blindsided and questioning the foundation of the relationship. Unlike traditional affairs, social media leaves traces, but the subtlety and constant accessibility make it easy to overlook until trust has already crumbled. Even without physical betrayal, these online dynamics are enough to push a marriage toward divorce. Social media may not be the sole cause, but it amplifies existing cracks until they can no longer be ignored. Divorces today are increasingly influenced by these digital pressures. Emotional cheating, jealousy fueled by constant comparison, erosion of intimacy, and secret online lives create a perfect storm that can tear even strong marriages apart. Public interactions on social media—arguments, passive-aggressive posts, or humiliating comments—only escalate tensions further. The very tools that are supposed to connect us instead divide, distracting from real-world intimacy, and creating conflict that often feels impossible to resolve. Couples who recognize the danger and set boundaries, communicate openly, and prioritize real-life connection over digital validation have a chance to survive, but ignoring the problem can have devastating consequences. Social media has become a silent third presence in marriages, observing, tempting, and reshaping relationships in ways that can be fatal to love. In a world dominated by likes, comments, and notifications, the marriage that survives is the one in which the partners choose each other over the digital world. This Valentine’s Day, love is not proven by what is posted, liked, or shared online. It is proven in what is protected. The most meaningful Valentine’s gesture may not be a public declaration at all, but the quiet decision to guard emotional boundaries and invest fully in the relationship that matters most.
February 10, 2026
Tax
So, The IRS Has Selected Your Return for Audit
The Internal Revenue Service (“IRS”) audits 1% to 2% of small business income tax returns annually for one of two reasons: (1) something about the return (or information reported on the return) flagged the return for a closer review and the revenue agent reviewing the return decided an audit was appropriate; or (2) (bad) luck of the draw – the return was randomly selected for audit. The first reason – a red flag – is far more common than a random audit. The IRS publishes Audit Technique Guides for use by revenue officers. These guides can be found on the IRS’s website here and provide insight into what the IRS checks for and hopes to discover. Regardless of the reason or type (more on that below), the IRS never emails you and never calls without first sending you correspondence BY MAIL (not email). There are Four Types of Audits There are four types of audits, listed from least to most intrusive. Correspondence Audit The first (and most common) is a correspondence audit, which constitutes about three-quarters of all audits. With correspondence audits, you never meet with a revenue agent face-to-face because everything is done through the mail. In the simplest of audits, the IRS asks for information only regarding certain specific entries on your return. For example, if your return reported sales of stock and the return failed to indicate the basis, the IRS will write and request you to provide them with basis information (how much you paid for the stock you sold). Once you supply the requested information, the audit may be over (assuming the information provided matches the gain or loss reported on the return). Office Audit The second form of audit is an office audit, which takes place at their office, not yours. Office audits arise when a return is too complex for a correspondence audit but does not meet the threshold for a field audit. Often, office audits are over itemized deductions, rental incomes and losses, or Schedule C filers. During an office audit, the examiner will ask you questions in an attempt to find other areas to examine. Often, the examining agent will ask for more information, usually documents, and will give you a reasonable amount of time to gather and supply the requested information. Field Audit The third form of audit is a field audit. This audit takes place at your office, not theirs. During a field audit, the examiner will frequently ask for additional information and expect you to provide it reasonably quickly, after all, they are at your office where (in their mind) the records should reside. Line-By-Line Audit The fourth form of audit is a line-by-line audit, otherwise known as a Taxpayer Compliance Measurement Program (TCMP) audit. In this audit, the IRS reviews the returns of lucky taxpayers, line-by-line. The stated purpose of the audit is to build and refine the data points used to tweak the algorithms that determine whether a return should be selected for audit. Still, it is an audit, nonetheless. No matter the type of audit, the IRS’s starting position is to count all income and deny all deductions. For example, in our correspondence audit example, if you claimed a loss on the sale of stock, unless and until the IRS receives the requested supporting documentation, they will deny the loss, adjust your return accordingly, and send you a tax bill with interest and penalties. Office, field, and TCMP audits are the same way. The IRS wipes out your deductions and makes you build them back, providing reasonable substantiation for each type and amount of deduction. All audits begin the same way regardless of the type: the IRS sends you a letter, often by certified mail, advising you of the audit. The letter always has a response date. Do not ignore this date. If you ignore the date and do not respond, the IRS will either escalate the audit or issue a 30-day letter in which the IRS tells you what changes they propose and how much additional tax, interest, and penalties you will need to pay. If you ignore the 30-day letter, the IRS will issue a Statutory Notice of Deficiency (SNOD), and you will have ninety (90) days to file suit in the United States Tax Court to contest the IRS’s findings. When Do You Need a Tax Lawyer Certainly, for office and field audits. During office and field audits, the audit examiner will be asking you questions. Audits are unpleasant, and many people simply think that if they answer all the examiner’s questions the audit will be over quicker. WRONG. The examiner is asking questions because they are looking for additional areas to audit. Equally important, statements you make to the examiner fall under 18 USC § 1001, more commonly known as a “1001 violation.” 18 USC § 1001 criminalizes knowingly and willfully making materially false, fictitious, or fraudulent statements or representations made to a federal agent. This is the statute under which Martha Stewart was convicted. What she lied about was not a crime, but lying about it to a federal agent was (and still is) a crime under 18 USC § 1001. Whether an incorrect answer is merely the fault of a bad memory or may be considered lying to a federal agent is a question over which reasonable minds can and do differ. Just as I often told baseball teams I coached, never put the calling of a close pitch a ball or strike in the hands of an umpire; you shouldn’t leave the decision whether it was your bad memory or something worse to an IRS agent. A tax lawyer can help keep this from happening. When Should You Call a Tax Lawyer The minute you get the notice in the mail advising you that your return has been selected for audit. An experienced tax controversy lawyer can meet with the audit examiner on your behalf and provide information in a limited, organized manner, which will help limit the scope of the audit. The audit examiner will address questions to your attorney, not you. Tax lawyers’ answers are measured and designed to keep the audit as limited as possible. Even with a correspondence audit, your best solution may be to engage a tax lawyer to respond on your behalf or, at the very least, guide your response. Professional counsel can make a significant difference in the outcome, so leave the DIY to other areas.
February 9, 2026
Trademark and Copyright
Trademarks 101 for In-House Counsel: What Actually Deserves Your Attention Each Year
Most general counsel did not build their careers expecting to spend meaningful time on trademarks. They are rarely the reason a deal closes, a lawsuit settles or a quarter hits its numbers. And yet for many companies, trademarks become one of the most valuable corporate assets while receiving the least structured legal oversight. That disconnect exists because trademark risk behaves differently than other legal risks general counsel manages. Patent disputes, employment claims and regulatory investigations tend to announce themselves clearly and demand immediate attention. Trademark problems usually do not. They accumulate quietly through missed deadlines, casual brand changes, uneven enforcement decisions or international expansion that outpaces legal review. When those issues surface, they often do so at the worst possible moment: during a product launch, an acquisition, a licensing discussion or a dispute that limits available options. This article is an orientation for in-house counsel who do not live in this area every day. The focus is practical: what deserves attention on an annual basis, why those items matter and how to think about trademarks as part of a broader legal risk management function rather than a collection of filings handled in the background. Trademarks Are Living Business Assets One of the most persistent misconceptions about trademarks is that they function like deeds. Once registered, the thinking goes, they sit safely on the shelf until renewed every decade. In reality, trademarks behave more like contracts. Their value depends on ongoing use, consistent presentation and deliberate enforcement choices. A trademark registration is not a certificate of ownership in the abstract. It is a legal recognition that a company is using a specific mark in a specific way for specific goods or services. If the business changes and the registration does not, the legal protection begins to drift away. From an in-house perspective, the right question is rarely “Do we have trademarks?” The better question is “Do our trademarks still reflect how the business actually operates today?” That framing turns trademark oversight into an operational exercise rather than a clerical one. It also explains why annual review matters even when nothing appears to be wrong. The Four Trademark Functions That Matter Each Year Trademark law contains many technical rules, but in-house oversight usually comes down to four recurring functions. These functions are interconnected, and weakness in one area tends to surface later as a problem in another. Portfolio Alignment with the Business Every year, the business evolves in ways that affect brand usage. New product lines are introduced. Services expand beyond their original scope. Marketing refreshes logos, taglines or visual presentation. Legacy brands are retired, modified or absorbed into broader platforms. These changes often occur without legal involvement because they are seen as commercial rather than legal. From a trademark perspective, misalignment creates risk. Registrations protect what is actually used in commerce, not what the company once used or intended to use. Annual portfolio alignment should confirm a few core points: Core brands are still being used in a manner consistent with their registrations New offerings are covered by existing registrations or flagged for new filings Marketing changes have not materially altered the mark without legal review This process does not require deep trademark expertise. It requires awareness of how the business is changing and a mechanism for connecting those changes to legal protection. Without that connection, companies often discover gaps only when enforcement becomes necessary or when diligence exposes inconsistencies between registrations and real-world usage. Maintenance and Renewal Filings Trademark rights can be lost without any adversarial action. In the United States, trademark owners must file specific declarations and renewals at defined intervals, including the year prior to the sixth year after registration, the year prior to the tenth year after registration and every ten years thereafter. Failure to file on time will result in cancellation, even if the mark is actively used. For in-house counsel, the risk here is rarely about understanding statutory deadlines. It is about process discipline and accountability. Annual review should confirm: Deadlines are centrally tracked rather than residing with individual teams Examples of trademark use reflect how the brand is actually presented to customers Someone confirms continued use before legal declarations are signed These filings are often treated as routine administrative tasks. The consequences of error, however, can ripple across the organization. Loss of a registration weakens enforcement leverage, complicates licensing discussions and may require refiling from a position of reduced priority. Monitoring and Policing Trademark rights can vanish if other parties begin using similar brands. That said, these rights do not disappear the moment a third party adopts a similar name. Accordingly, inconsistent enforcement weakens rights over time and creates credibility problems when enforcement becomes unavoidable. Annual oversight should include a high-level assessment of how monitoring and enforcement decisions are made. This is less about volume and more about consistency. Key considerations include: Whether new competitors or products create meaningful risk of confusion Whether internal teams understand when to escalate brand concerns Whether enforcement decisions align with broader business objectives For most companies, the goal is not aggressive enforcement. It is a predictable enforcement that can be explained later to courts, counterparties or acquirers. This predictability helps in at least two ways. First, selective silence often becomes a problem during litigation or diligence when opposing counsel asks why certain uses were tolerated while others triggered action. Second, it is easier to budget your legal spend if you understand what actions you would take in certain situations. Strategic Coverage Gaps Growth frequently outpaces trademark planning. Companies enter new markets, expand internationally or acquire brands with incomplete legal protection. Often, teams assume existing rights will carry forward without evaluating whether that assumption holds. An annual review creates space to identify and prioritize coverage gaps before they become urgent. Useful questions include: Are we operating in new jurisdictions without trademark protection Did we acquire brands that were never properly registered or maintained Are international operations relying on U.S. rights without local analysis These issues are easiest to address proactively. Once a conflict arises or a launch is imminent, the range of available solutions narrows quickly and costs increase accordingly. Why This Belongs on the General Counsel’s Annual Checklist Trademark issues rarely reach the boardroom unless something has already gone wrong. When they do surface, they tend to implicate multiple parts of the organization at once: marketing, sales, licensing, international operations and corporate development. An annual trademark review allows general counsel to move from reactive problem solving to managed risk. It helps to: Reduce surprise issues that disrupt business initiatives Allocate legal budget between maintenance and strategic growth Create internal discipline around brand usage and escalation Preserve flexibility for future transactions, licensing and expansion Viewed this way, trademarks are less about logos and more about optionality. Clean, well-aligned portfolios are easier to enforce, easier to license and easier to value in a transaction. Trademarks as a General Counsel-Level Oversight Function General counsel are not expected to master every specialty area. They are expected to recognize where quiet risks accumulate and intervene before they become material. Trademarks fit squarely into that category. They rarely require daily involvement. They benefit significantly from periodic review by someone who understands the business and can connect legal rights to operational reality. Outside counsel can handle filings, searches and enforcement mechanics. In-house counsel provides strategic oversight to ensure those efforts remain aligned with how the company actually operates. A structured annual check-in, whether internal or with trusted outside counsel, is often sufficient to keep trademark risk proportional, predictable and manageable. The objective is not perfection. It is awareness and control.
February 6, 2026
Real Estate
Real Estate Isn’t About Property Any More Than Birthdays Are About Cake
Most of us don’t give much thought to why we celebrate birthdays. We just do. Cake. Candles. A brief moment where time pauses and the individual is acknowledged. But like many things we take for granted in modern commerce and real estate, birthday celebrations have a surprisingly technical — and instructive — history. As with title, entity formation, and legal opinions, the story starts long before anyone thought about “best practices.” In ancient civilizations, birthdays were not universal celebrations. They were reserved for the powerful. Ancient Egypt marked the “birth” of pharaohs as gods, often tied to coronation rather than literal birth. Ancient Rome eventually extended birthday celebrations to ordinary citizens, but primarily men, and often as markers of legal and social standing. For centuries, women’s birthdays went largely unrecognized in formal society. In other words, birthdays were originally about status, authority, and legitimacy, not cake. That framing should sound familiar to anyone who works in real estate or finance. Much like early birthdays, property rights and legal recognition historically belonged to a narrow group. Over time, those rights expanded, but only after systems developed to recognize, document, and protect them. Early Christianity rejected birthday celebrations altogether, viewing them as pagan, self-indulgent, and astrologically dangerous. The concern was that marking a birth invited misfortune or temptation. Instead, the Church focused on death anniversaries and saints’ days. There’s an interesting parallel here: early resistance wasn’t about the event itself, but about risk allocation. Celebrating a birthday meant acknowledging time, change, and uncertainty — concepts that institutions have always been cautious about embracing without structure. Sound familiar? Modern real estate transactions didn’t become efficient until we developed standardized ways to address risk: title insurance, surveys, due diligence, and legal opinions. Before that, uncertainty ruled. Birthdays became mainstream only once societies improved record-keeping. Once people could reliably document dates of birth, identity, lineage, and legal status, birthdays shifted from superstition to celebration. That shift mirrors what happens in real estate every day. A deal becomes financeable not because the property exists, but because it can be documented, verified, and relied upon. The asset matters. The paper matters more. The tradition of birthday candles traces back to ancient Greece, where candles were used to communicate wishes to the gods. Over time, that symbolism softened into ritual rather than belief, but the structure remained. In real estate, many transactional “rituals” operate similarly. Opinions, certificates, and closing deliveries are not superstitions. They are structured ways of saying: “We’ve examined the facts, allocated the risk, and everyone can proceed with confidence.” What began as protection becomes tradition and eventually, expectation. Birthdays today are about the recognition of the individual. Real estate transactions are increasingly about the same thing, especially as entity structures grow more complex and deals across jurisdictions. Both require clarity of identity, reliable records, and trusted intermediaries. Without those, celebration or closing doesn't happen. We celebrate birthdays today because systems evolved to make them safe, meaningful, and universally recognized. The same is true for modern real estate transactions. Progress doesn’t come from ignoring risk. It comes from understanding it, documenting it, and building structures that allow people to move forward with confidence. That’s as true for a birthday candle as it is for a closing table.
February 4, 2026
Labor and Employment
Pinged After Dark: Email Expectations, Burnout, and Employment Law Risk
One of the most common questions labor and employment attorneys hear from employers in the post-remote workplace is whether employees can be expected to answer emails outside standard business hours. The question seems straightforward, but it sits at the intersection of wage and hour law, workplace culture, and an evolving understanding of employee burnout. The rise of remote and hybrid work has permanently blurred the line between work time and personal time. What was once an occasional after-hours message has, for many employees, become a steady stream of evening and weekend communications. While constant connectivity can support flexibility and responsiveness, it also creates legal and operational risks when expectations are unclear or unmanaged. From a legal perspective, after-hours email expectations matter most under wage and hour laws. For non-exempt employees, time spent reading and responding to emails outside of scheduled work hours may be compensable under the Fair Labor Standards Act and similar state laws. Even brief, sporadic email activity can add up over time, creating exposure for unpaid wages or overtime if that time is not properly tracked and paid. Employers often underestimate how easily “just checking email” can become a compliance problem. For exempt employees, the analysis is different but not risk-free. While these employees are not entitled to overtime pay, constant after-hours availability can contribute to burnout, stress-related health issues, and requests for medical leave or workplace accommodations. Employers increasingly face claims tied to mental health conditions, and a culture that implicitly demands round-the-clock responsiveness can become evidence in those disputes. Oftentimes there is a disconnect between written policies and actual practice. Many employers maintain policies stating that after-hours work is not required, yet managers routinely send late-night emails or praise employees who respond immediately. Over time, this behavior creates an unwritten expectation that employees reasonably feel they must meet. In legal disputes, it is often those informal expectations — not the handbook language — that carry the most weight. Although U.S. law has not formally adopted a “right to disconnect,” global trends and employee expectations are moving in that direction. Several jurisdictions outside the United States already limit after-hours communications, and similar ideas are gaining traction domestically. Employers should assume that after-hours availability will continue to be scrutinized from regulators, courts, and employees alike. The most effective approach is clarity. Employers benefit from clearly defining when employees are expected to be available and when they are not, and from ensuring that managers understand how their communication habits affect both compliance and morale. Where business needs require after-hours responsiveness, those expectations should be deliberate, consistent, and aligned with compensation practices. Burnout is no longer just a workforce morale issue. It is a business and legal risk that can lead to turnover, leave-related disputes, and costly claims. Employers that proactively set reasonable boundaries around email use and availability are better positioned to retain talent, reduce risk, and defend their practices if challenged. After-hours email is not simply a question of convenience or courtesy. It reflects how well an organization understands its legal obligations and how seriously it takes the sustainability of its workforce. Thoughtful boundaries today can prevent significant problems tomorrow.
February 4, 2026
M&A Nuggets
M&A Nuggets: How to Avoid Hairline Fractures in M&A Deals
In medical parlance, a hairline fracture of the bone is caused by stress that can result from trauma, is painful, and curtails activity. Hairline fractures can also arise during an M&A transaction and are important to avoid. Hairline fractures can be caused by 1) lack of communication between the purchaser and the seller, 2) a delay in contacting third parties whose consent is required, and 3) professional advisors who put their desire to win at any cost above their client’s interests. How can hairline fractures be avoided? First, it is crucial for the purchaser and seller to fully understand each other’s objectives and to then memorialize all major business terms in a letter of intent. Too often, letters of intent are devoid of key business terms on the theory of “let’s just get the letter of intent signed and move on.” This often results in surprises, misunderstandings, and disappointment, all of which delay or doom a deal. Second, third parties whose consent is required, such as landlords and lenders, must be contacted well before the planned closing date. These third parties, who have their own processes and procedures when faced with a client sale, often take an extended time to react. Last, a seller should clearly explain its objectives, time frame, and expectations to its counsel and other advisors. A seller must work with advisors who will prioritize making the deal happen over winning every point in the negotiation. The lesson here is that, with proper communication and planning, hairline fractures in an M&A transaction can be avoided.
February 4, 2026
Business
SBA Loan Performance in 2025: What the Data Says—and Why it Matters for Buyers and Investors
Recent SBA loan performance data offers an important reality check for buyers, lenders, and investors operating in the lower middle market. A 2025 analysis highlighted by Monitor Daily examines which industries are experiencing the lowest default rates across SBA-backed loans. These findings carry meaningful implications for search funders, independent sponsors, family offices, and anyone allocating capital to small businesses. This edition of Search Fund Operate takes a deeper look at what the data actually shows, why certain industries consistently outperform others from a credit-risk perspective, and how that information should inform acquisition strategy, diligence priorities, financing decisions, and legal structuring. For buyers using SBA leverage, this is forward-looking signal about operational durability and transition risk. What the SBA Loan Performance Data Reveals The SBA loan performance report identifies several industries with notably lower default rates in 2025. These sectors tend to share common structural characteristics: Predictable, recurring demand Essential or non-discretionary services Lower customer concentration risk Operational simplicity relative to revenue stability Limited exposure to volatile input costs Industries such as healthcare services, professional services, recurring service-based businesses, and essential retail continue to perform well compared to more cyclical or capital-intensive sectors. These businesses benefit from steady cash flow, contractual or repeat customer relationships, and pricing models that adjust more easily to inflation or labor pressure. By contrast, businesses tied to discretionary consumer spending, commodity-sensitive pricing, or seasonal revenue cycles show higher stress levels. Margin compression, labor shortages, and supply-chain disruptions continue to test these models—especially when layered with SBA leverage. This is unlikely to come as a surprise for anyone investing in this space. Why Default Rates Matter for Buyers (not Just Lenders) While SBA default data is often viewed through a lender’s lens, buyers should treat it as a proxy for operational resilience. Lower default rates typically correlate with: Stronger and more consistent debt service coverage More durable margins across economic cycles Better pricing power with customers Reduced reliance on a single owner, customer, or vendor For search fund entrepreneurs and first-time buyers, these factors materially affect day-to-day operating stress (and should translate to lower risk). The first 12–24 months post-close are often the most fragile period of ownership. A business that historically services SBA debt is more likely to support a new owner during the transition stage when they are still trying to absorb institutional knowledge from exiting leadership while simultaneously trying to establish their own credibility. From a legal perspective, default risk also ties directly into representations, indemnities, earn-outs, and seller financing terms. Businesses operating in higher-risk industries often require more robust contractual protections to balance uncertainty. Industry Selection Is a Risk Management Tool The data reinforces a point often overlooked in acquisition discussions: industry selection itself is a form of risk management. Buyers often focus on valuation multiples, seller notes, or headline EBITDA figures, but industry dynamics may matter more than price precision. A slightly more expensive business in a low-default, stable industry can be materially safer than a discounted deal in a volatile sector. For independent sponsors and family offices deploying patient capital, lower-default industries align well with: Moderate leverage strategies Longer hold periods Incremental operational improvements Leadership transition planning These industries tend to support governance frameworks, professionalization, and repeatable growth rather than aggressive financial engineering. SBA Financing Magnifies Both Strengths and Weaknesses SBA-backed transactions impose discipline both structurally and procedurally. While SBA loans remain attractive due to leverage and pricing, they magnify diligence failures when buyers underestimate operational weaknesses. Key diligence considerations include: Cashflow Quality: Are earnings repeatable, or dependent on one-time contracts, owner relationships, or favorable timing? Owner Reliance: Does the business function independently, or is the seller the operational bottleneck? Customer Concentration: Is revenue diversified or dependent on a small number of counterparties? Operational Controls: Are accounting systems, reporting cadence, and internal controls sufficient to support debt compliance? Legal Infrastructure: Are contracts assignable, enforceable, and properly documented for a post-close environment? Industries with lower default rates tend to score better across these dimensions—not by coincidence, but because their business models demand consistency and discipline. Legal Structuring Considerations in Lower-Default Industries From a legal standpoint, industry risk should influence deal structure. In more stable industries, buyers may have greater flexibility to: Negotiate cleaner transitions with shorter seller involvement Rely less on contingent consideration or earn-outs Use standardized employment and non-compete arrangements Implement governance documents that support scalability In higher-risk industries, buyers often need enhanced protections, including longer transition services agreements, expanded indemnities, escrow holdbacks, and tighter covenants tied to customer retention or financial performance. Understanding industry default trends helps buyers align legal risk allocation with operational reality. Implications for Investors and Family Offices For family offices allocating capital to search funds, independent sponsors, or direct acquisitions, SBA performance data offers an additional underwriting lens. It helps evaluate not just sponsor capability, but business durability. Investors increasingly expect sponsors to articulate why a target industry supports sustainable leverage, predictable operations, and long-term value creation. Default-rate data provides objective context for investment committee discussions and portfolio construction decisions. It also supports diversification across industries with varying risk profiles, rather than concentration in sectors vulnerable to economic or regulatory shifts. Final Thoughts The 2025 SBA loan performance analysis reinforces a simple but critical point: not all small businesses carry the same risk, even at similar price points. Industries with lower default rates tend to reward discipline, operational focus, and patience—traits that align closely with successful ETA and private capital strategies. For buyers, this is a reminder to look beyond the deal structure and focus on the durability of the underlying business. For investors, it reinforces the importance of industry selection as a cornerstone of long-term capital preservation and growth.
February 2, 2026
Family Law
Smart Strategies for Family Law Clients: How to Avoid Common Mistakes and Keep Legal Costs Down
Family law cases — from divorce to custody and property division — can be stressful and costly. However, most expensive problems are preventable. By staying organized, managing emotions, communicating clearly, and following legal advice, clients can greatly reduce stress, avoid common missteps, and keep their legal bills under control. To put these principles into action, the following guide presents practical steps clients can take to minimize fees and strengthen their case. Don’t Let Emotions Drive Legal Decisions Acting out of anger, fear, or resentment leads to unnecessary filings, impulsive decisions, and continued conflict. Strategic, calm decision‑making almost always leads to better outcomes and lower fees. Stay Organized from the Start Disorganization is one of the most expensive and avoidable client mistakes. Providing financial documents, custody calendars, and communications in a clear, organized way saves your attorney significant time and reduces billable hours. Avoid Involving Children in the Conflict Using children as leverage or pulling them into adult disputes harms both the case and the children. Courts prioritize a child’s best interests, and involving them in conflict often backfires emotionally and legally. Be Honest and Transparent About Finances and Facts Hiding assets, withholding information, or changing your story mid‑case severely damages your credibility and forces your attorney to spend extra time on damage control. In serious cases, it can even lead to penalties. Use Social Media Wisely (or Not at All) Posts, photos, and messages often end up in court, and they can hurt your case. Even seemingly harmless content can be misconstrued or taken out of context, requiring additional attorney time to address. Limiting online activity during your case is one of the easiest ways to avoid unnecessary complications. Communicate Efficiently with Your Attorney Poor communication — either too little or too much — wastes time and money. Limit frequent emotional messages. Instead, group questions into a single email and reply promptly to your attorney’s requests. Follow Your Attorney’s Advice (Not Friends’ Stories) Well‑meaning friends often give advice based on their own experiences, which may not apply legally to your situation. Ignoring your lawyer’s guidance or trying to “win small battles” prolongs the case and increases costs. Avoid Unrealistic Expectations or Unnecessary Battles Refusing reasonable compromise, fighting over minor issues, or making decisions without considering long‑term financial consequences creates delays and expenses. Strategic negotiation often leads to better, faster outcomes. Use Lower‑Cost Legal Resources When Appropriate Ask whether certain tasks can be handled by paralegals or support staff at a lower hourly rate. Being attentive of who performs which task can reduce your overall bill. Consider Mediation or Alternative Dispute Resolution Mediation and collaborative law can resolve disputes earlier and at a lower cost than courtroom litigation. These options are especially beneficial when both parties are motivated to reach a fair agreement quickly. Final Thoughts Most family law problems and expenses stem from the same root causes: emotional reactions, disorganization, and poor communication. Clients who stay prepared, follow professional guidance, and seek emotional support outside the legal process tend to reduce their fees and resolve their cases more efficiently. By focusing on long‑range objectives instead of short‑term battles, you can save significant time, money, and stress during an already challenging experience.
January 30, 2026
Business
Rethinking the Early Exit: How Gen X and Millennial Owners Are Selling Smarter in 2026
While much of the exit-planning conversation has centered on Baby Boomers approaching retirement, Millennial and Gen X founders are also a growing segment of today’s middle-market sellers. These generations collectively own a large portion of small and middle-market businesses, and they often do not hold on to their businesses as long as previous generations, prioritizing exits at a stage when they can still pivot to new ventures. This means that earlier-in-career exits are becoming increasingly common, and they present a distinct set of considerations for these younger generations, particularly for those looking to make a move in 2026. Market Conditions in 2026 Starting in 2025, we began to see a much more active merger & acquisition (M&A) market than we have the past few years, and that is expected to continue as we move through 2026. Strategic buyers remain active, private equity firms continue to deploy record levels of dry powder, and financing conditions (particularly in private credit) have improved. At the same time, buyers remain disciplined, and valuations favor businesses with predictable cash flow, strong management teams, and scalable operations, even where growth remains the primary story. For younger founders, this kind of dynamic can cut both ways. Many younger companies are still scaling, reinvesting, or professionalizing operations, which can limit valuation if pursued too early. Therefore, one of the most critical drivers of outcome this year is timing the market, while also allowing the business to mature operationally. The Impact of Boomer Sales on Timing and Valuation It is important for Gen X and Millennial business owners to note that right now, there are many Boomer-owned businesses that are coming to market. While this wave of Boomer business sales is fueling buyer interest, it does present another layer of complexity for younger sellers. Unlike legacy businesses with decades of operating history, companies owned by Gen X or Millennials may lack the same kinds of long-term financial track records. While buyers in 2026 are still willing to underwrite growth, they are going to expect clean financials, recurring revenue, and evidence that performance is durable, not founder dependent. This is why strategic exit planning, often beginning 12 to 24 months before a sale, can materially improve valuation by allowing time to normalize earnings, strengthen leadership, and reduce execution risk. Market cycles and competitive sale dynamics also matter, particularly as so many Boomers will be selling over the next few years. Choosing the Right Deal Structure for Long-Term Wealth Younger sellers typically have decades of professional life ahead of them, making deal structure equally as important as price. Partial liquidity events, rollover equity, earn-outs, and minority recapitalizations remain common in 2026, particularly in private equity transactions. Remember that the structure you choose will have significant tax, risk, and governance implications and should be addressed early with experienced legal and financial advisors. This will all impact your long-term wealth, so choosing wisely here is critical. Gen X and Millennials are certainly taking a different approach to business ownership and exit timing than earlier generations, opting for exits earlier in life that afford them flexibility and opportunity. While there can be incredible benefits to these early exits, in today’s competitive and disciplined M&A environment, younger owners must think beyond valuation alone, considering timing, structure, and how each decision will impact their long-term wealth. Ultimately, a successful exit for today’s younger business owners is not defined by the sale itself, but by how deliberately it positions them for sustained financial security, future ventures, and the next chapter of their professional lives.
January 30, 2026
Bankruptcy
“Void” Doesn’t Mean “Whenever You Get Around to It”
The Supreme Court has opened the new year with a decision that should convince every company that ignoring a payment demand is a mistake. In Coney Island Auto Parts Unlimited, Inc. v. Burton, the Court resolved a long‑standing circuit split and held that motions to set aside a judgment as void under Rule 60(b)(4) must still be filed within a “reasonable time” under Rule 60(c)(1). Vista-Pro Automotive, LLC entered bankruptcy in 2014. As part of its bankruptcy, Vista-Pro initiated adversary proceedings against Coney Island Auto Parts Unlimited, Inc., to collect $50,000 in allegedly unpaid invoices. Vista-Pro attempted to serve process on Coney Island by mail, but in doing so, it did not allegedly comply with the mail-service requirements in Federal Rule of Bankruptcy Procedure 7004(b)(3). Coney Island never answered the complaint, and the Bankruptcy Court entered a default judgment against Coney Island in 2015. The Vista-Pro bankruptcy trustee attempted to enforce the judgment over the next six years. The trustee sent a demand to Coney Island’s CEO in April 2016, which the Court treated as sufficient notice of the judgment and the trustee’s enforcement efforts. In 2021, a marshal seized funds from Coney Island’s bank account in satisfaction of the judgment. Only then did Coney Island file a motion to vacate the judgment as void for improper service. The Bankruptcy Court and the Sixth Circuit denied the motion. The Supreme Court has now affirmed. Federal Rule of Civil Procedure 60 permits a court to “relieve a party . . . from a final judgment, order, or proceeding,” and subdivision (b)(4) specifically authorizes a court to Federal Rule of Civil Procedure 60 permits a court to “relieve a party . . . from a final judgment, order, or proceeding,” and subdivision (b)(4) specifically authorizes a court to have granted relief from void judgments long after their entry, especially when the issuing court lacked jurisdiction over the defendant. See, e.g., Harris v. Hardeman, 14 How. 334, 338, 344–346 (1853) (affirming a lower court order that set aside a judgment 11 years after its issuance where the plaintiff did not make proper service and the defendant did not appear). The Court’s core reasoning is straightforward. A Rule 60(b)(4) motion is a Rule 60(b) motion. Rule 60(c)(1) says all Rule 60(b) motions must be filed “within a reasonable time.” The Court rejected the position endorsed in several circuits for decades — that a “void” judgment is a “legal nullity” and can be attacked at any time. The Court emphasized that many legal errors cannot be cured by time, yet procedural rules still impose deadlines to prevent perpetual uncertainty. And importantly, the Court noted that a flexible “reasonable time” standard already protects defendants who truly had no notice, because what is “reasonable” depends on when the party first learned of the judgment. Why This Matters Litigation, especially bankruptcy litigation, is full of default judgments, service disputes, and defendants who surface years later claiming they never knew about the case. This decision will put defendants on the clock the moment they have actual or constructive notice, thus reducing strategic silence. Practical Takeaways for Defendants Treat every demand letter as a priority item. Ignoring it may cost you your only avenue to relief. Act immediately when you learn of a judgment — any judgment. Preserve records showing when you first learned of the judgment. That date determines whether your motion is timely. Litigants must treat demand letters not as administrative annoyances but as legal events that define rights, deadlines, and consequences. Procedural precision matters, and courts increasingly expect it from everyone. Default judgments remain serious, but defendants still have a path to relief if they move promptly.
January 29, 2026
Estates and Trusts
Don’t Let Your Plan Fail: Why Reviewing Your Trust is Critical
Revocable trusts are often the centerpiece of a client’s estate plan for the many benefits that they provide. Revocable trusts are private agreements that are easily amendable, and avoid the costs and delays associated with probate. They ensure the management of assets in the event of a client’s incapacity and, at death, a seamless transition of assets to the client’s intended beneficiaries. However, even the most carefully drafted and intricate trust agreement will be ineffective if it is not implemented correctly. A revocable trust is essentially an empty shell until it is funded with assets. Advisors and legal counsel will likely take steps to ensure that all of a client’s non-retirement assets are transferred or retitled into their revocable trust at its inception. When assets are later acquired, they must be transferred into the trust to be effective. In the best circumstances, assets that remain outside the trust will necessitate probate, incurring administrative costs and delays that the client sought to avoid by establishing the revocable trust. At worst, failing to properly title or convey assets into the trust may result in the imposition of avoidable taxes and the wrong beneficiaries receiving assets. Why Proper Trust Funding Matters Many clients presume that listing an asset on a schedule included with their trust is all that is required to transfer assets into their trust. In reality, assets must be formally transferred to the trust, or the trust must be listed as the beneficiary of any assets that remain outside the trust, for it to be effective. Some assets, such as bank or brokerage accounts, can be easily retitled and transferred into a trust. Other assets require the preparation of formal legal documents to effect the transfer. For example, real property can only be transferred to a trust by executing a deed. Corporate interests, such as stocks or shares in a small business, may only be transferred with an assignment and the issuance of a new stock certificate from the corporation. If the client owns shares in a co-op, they must go through a formal approval process before their shares can be retitled into their trust. Because transferring certain assets into the trust can be a hassle or incur additional fees and costs, sometimes clients intentionally keep certain assets outside their trust. A client may opt to forgo the expense and hassle of retitling their residence, presuming that they will one day sell it prior to their death. The client might reasonably conclude that incurring fees and costs to convey an asset into their trust which they intend to sell during their lifetime is unnecessary and wasteful. This is a risky proposition as death or incapacity can occur in an instant, making it difficult or impossible to transfer the property later, undoing the benefits of establishing the trust. Risks of Leaving Assets Outside the Trust Some types of assets, such as retirement accounts, must be left outside a trust, but this can also be a trap for the unwary. The client must always consider the assets that the beneficiary will receive outside their trust as part of their overall estate plan. If a client wishes to change the terms of their trust to provide more or less for their intended beneficiaries, they must be mindful to also update their beneficiary designations accordingly. Changed circumstances may also require a change in beneficiary designation. The client may have divorced their spouse since naming him or her as the primary beneficiary of their life insurance or retirement assets. Perhaps the intended beneficiary has died, become incapacitated, or is now a spendthrift; failing to update beneficiary designations may expose these assets to creditor claims or disqualify the beneficiary from receiving government benefits. Safeguards to Prevent Funding Failures While ideally all assets will be transferred into the revocable trust before death, there are many ways where even well-intentioned individuals will inadvertently fail to transfer assets into their revocable trust. Several safeguards that can be easily implemented to mitigate these risks and ensure that the client’s beneficiaries inherit their assets as intended. When implementing a revocable trust in a client’s estate plan, a “pour-over” will should always be executed. A “pour-over” will directs that any assets left outside the trust at the time of death be distributed or “poured over” into the revocable trust. Without a will in place, assets left outside the trust will pass by intestacy. In addition, clients should consider whether it is appropriate to provide their agents broad powers under a power of attorney to gift their assets, change beneficiary designations, and amend the client’s trust, to conform with the client’s wishes. These powers help to ensure that additional estate planning can be done at any time during the client’s life, even if they become incapacitated. Lastly, the client should consider naming their trust as the primary or contingent beneficiary of any assets left outside their trust. By doing so, it not only ensures that these assets will ultimately pass to the trust, but it also enables the client to change their estate plan by simply amending the terms of their trust. Conclusion: Regular Review Ensures an Effective Plan The reality is that while establishing an estate plan may take as little as a few months, it is not a discrete process; estate planning requires continuous monitoring and occasional updates. Clients should be encouraged to review their estate planning documents at least every four to five years, or at major milestones such as the birth of a new family member, moving to another state, or when there is a significant change in the law, to ensure that their estate plan will function as intended.
January 28, 2026
Labor and Employment
New Year, New Employment Laws; What Employers Must Know for 2026
As 2026 begins, employers across the United States face a wave of significant labor and employment law changes that demand immediate attention. From California’s updates to minimum wage, exempt salary thresholds, and equal pay requirements, to Illinois’ expanded workplace transparency and AI-related compliance obligations, these developments reflect a growing emphasis on employee protections, pay equity, and technology governance. Pennsylvania and Texas also introduced targeted reforms, including anti-discrimination measures, paid leave adjustments, and new standards for responsible AI use. The following provides an overview of the changes effective in early 2026 and outlines practical steps employers should take to help ensure compliance and mitigate risk. Jump to: California | Delaware | New York | Illinois | Pennsylvania | Texas California Minimum Wage Increases to $16.90 Per Hour Several cities and counties have their own required minimum wages. Employers should check their local city and county ordinances where they have employees to ensure they are paying the correct minimum wage. Forty (40) California cities and counties have minimum wage rates that are higher than the state minimum wage of $16.90. Twenty-eight (28) of those forty local cities and counties have increases to their minimum wage beginning January 1, 2026, with West Hollywood, at $20.25 per hour, being the highest. What Employers should do: Employers should check the minimum wages for any city or county where they have employees. Make sure hourly rates are updated to comply with state law and the City/County where the employee is working. Employers must pay minimum wage in the city or county where the employee works and not where the employer is located. The Salary Requirement for Exempt Employees Rises to $70,304 In order to be exempt, an employee must meet the duties test and the salary test. The California salary test requires exempt employees to earn twice the minimum wage. With the increase in minimum wage to $16.90 on January 1, 2026, the new minimum salary for California exempt employees is $70,304. What Employers should do: Make sure any California employee who is exempt has an annual salary of at least $70,304. Requirement to Allow Employees to Use Sick Leave for Jury Duty and When Appearing as a Witness Use of sick leave was expanded to allow employees to use sick leave for jury duty or when they are required to appear in court to comply with a subpoena or other court order. What Employers should do: Employers should revise their sick leave policy in their Employee Handbook and make sure that the new 2026 posters are displayed. In the alternative, employers can provide employees with the Notice linked to this Article. The revised and required notice is linked below. Poster English Spanish New Notice Requirement – California Workplace – Know Your Rights Effective February 1, 2026, and each year thereafter, employers must provide notice of employees’ rights. The Labor Commissioner has developed notices that are linked here in Spanish and English. Employers are required to keep records of each written notice provided or sent for three years, including the date provided or sent. Employers may, but are not currently required to, provide a link or show the video developed by the Labor Commissioner’s office. In addition, by March 30, 2026, employers must provide employees the opportunity to name an emergency contact and indicate whether that contact should be notified if the employee is arrested or detained. What Employers should do: Employers should distribute the Notice to employees and keep records of how and when it was distributed. In addition, employers should calendar distribution for each year and give employees the opportunity name an emergency contact if they are arrested or detained. Changes to the California Equal Pay Act The definition of “pay scale” under the California Equal Pay Act has been broadened, and the statute of limitations for claims thereunder has been increased from two (2) to three (3) years, with employees able to get relief for up to six (6) years. The definition of “pay scale” is revised to include a good-faith estimate of the salary or hourly wage range the employer reasonably expects to pay for the position upon hire. “Wages” and “wage rates” are also redefined to include all forms of pay, including, but not limited to, salary, overtime pay, bonuses, stock, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits. What employers should do: Employers should ensure that they review their pay scales and document how they determined the pay scale to show that the pay scales were based on a good-faith estimate. Employment Contracts Cannot Require Employees to Pay Employers for Training (if they leave their employment) For employment contracts entered into on or after January 1, 2026, it is unlawful to include or to require an employee to execute as a condition of employment or a work relationship a contract that includes a contract term that does any of the following: Requires the worker to pay an employer, training provider, or debt collector for a debt if the worker’s employment or work relationship with a specific employer terminates. Authorizes the employer, training provider, or debt collector to resume or initiate collection of or end forbearance on a debt if the worker’s employment or work relationship with a specific employer terminates. Imposes any penalty, fee, or cost on a worker if the worker’s employment or work relationship with a specific employer terminates. This means employers cannot require employees to reimburse them for any training provided to them if they leave their employment. If this new law is violated, employees are entitled to actual damages sustained by the worker or five thousand dollars ($5,000), whichever is greater, in addition to injunctive relief, and reasonable attorney’s fees and costs. There are certain exceptions as follows: A contract entered into under any loan repayment assistance program or loan forgiveness program provided by a federal, state, or local governmental agency. A contract related to the repayment of the cost of tuition for a transferable credential that meets certain requirements. A contract related to enrollment in an apprenticeship program approved by the Division of Apprenticeship Standards. A contract for the receipt of a discretionary or unearned monetary payment, including a financial bonus, at the outset of employment that is not tied to specific job performance, provided certain conditions are met. A contract related to the lease, financing, or purchase of residential property. What employers should do: Make sure new contracts do not have provisions requiring repayment upon an employee’s termination unless they fit within one of the exceptions above. Personnel Files Must Include Education and Training Records Labor Code 1198.5 is revised to require an employer who maintains education or training records in those records in the employee’s personnel file which include the following: The name of the employee. The name of the training provider. The duration and date of the training. The core competencies of a training, including skills in equipment or software. The resulting certification or qualification. What employers should do: If employers have training or education records for employees, ensure they are placed in the employee’s personnel file. In addition, employers should ensure that electronic personnel files include all documents and are properly maintained. Revisions to California’s Baby WARN Act In addition to the prior notice requirements, employers are now required to give notice of whether the employer plans to coordinate services, such as a rapid response orientation, through the local workforce development board, the employer plans to coordinate services through a different entity, or the employer does not plan to coordinate services with any entity. In addition, employers are required to include in the notice a description of the statewide food assistance program known as CalFresh. Regardless of whether the employer chooses to coordinate services with the local workforce development board or another entity, the employer shall include in the notice a functioning email and telephone number of the board and the following description of the rapid response activities offered by the local workforce development board, and specifically: “Local Workforce Development Boards and their partners help laid off workers find new jobs. Visit an America’s Job Center of California location near you. You can get help with your resume, practice interviewing, search for jobs, and more. You can also learn about training programs to help start a new career.” If the employer chooses to coordinate services with the local workforce development board or another entity, the employer shall arrange services within 30 days from the date of the notice. What employers should do: If employers have layoffs that trigger California’s WARN Act, they should ensure they provide the information above in the notices sent to employees. Failure to give proper notice would subject an employer to a violation of WARN because the penalties are significant. California’s Transparency in Frontier AI Act California’s Transparency in Frontier Artificial Intelligence Act (TFAIA) is the first U.S. law specifically regulating frontier level AI systems. The law takes effect January 1, 2026, for covered developers. TFAIA creates the first U.S. regulatory framework specifically targeting developers of advanced, high-capacity AI models. While the law is aimed at AI developers, employers and their Human Resources representatives play a critical role because the Act requires organizational transparency, risk reporting, and safety processes for AI development and deployment. What employers must do: Ensure employees understand new responsibilities, documentation expectations, and escalation pathways and employers should review their AI practices. Determine Whether the Company Is a “Covered Developer” - Employers must determine whether the organization develops “foundation models” or “frontier models” as defined in the Act. - An employer is considered a “frontier developer” if you train or initiate training of a “frontier model,” which is defined as a model that is: (1) trained on a broad set of data, (2) designed for generality of output, and (3) can be adapted to a wide range of distinctive tasks. - A “large frontier developer” is a frontier developer whose entity (and its affiliates) had annual gross revenues exceeding US $500 million in the preceding calendar year. Large frontier developers are subject to additional obligations under the Act. Implementation of Mandatory Training Programs - Employers should develop training programs on compliance obligations, seek to define roles and responsibilities for safety reporting, and implement whistleblower protections aligned with the Act’s transparency goals. Training should cover the required documentation and transparency practices, how to identify and escalate safety concerns, and the ethical use of AI. Critical Safety Incident Reporting - A frontier developer must report “critical safety incidents.” The statute requires the company to establish a mechanism for submission by a frontier developer or member of the public. Internal Reporting & Whistleblower Channels - The Act emphasizes risk disclosure and public accountability for advanced AI systems. Employers must ensure employees know how to report safety issues or misuse, protect employees who raise concerns, and maintain documentation of reports and follow-up actions. Whistleblower Protections - Employees (“covered employees”) who assess, manage, or address frontier model risk are protected when they disclose: - a specific and substantial danger to public health or safety from a catastrophic risk - a violation of the chapter. Large frontier developers must: - Provide an anonymous internal reporting process for such disclosures. - Provide monthly updates to the whistleblower on the status of disclosure. If retaliation occurs, the burden shifts to the employer to show clear and convincing evidence that they would have taken the same action absent the disclosure. Practical Steps: - Update whistleblower policies to cover frontier AI risk disclosures. - Set up anonymous reporting channels (internal or third-party) - Train human resources, legal, and safety teams in handling such disclosures in line with the Act. Monitor Regulatory Updates & Enforcement Trends - Because SB 53 is the first law of its kind, enforcement of the Act will be unpredictable. Employers must regularly track guidance from California regulators, monitor similar legislation in other states, and prepare for potential federal alignment or preemption. California’s Transportation Network Company Drivers Labor Relations Act California’s Transportation Network Company Drivers Labor Relations Act establishes a new labor relations framework for app-based rideshare and delivery drivers. Although drivers remain classified as independent contractors under Proposition 22, the Act creates collective representation or “union” rights, minimum labor standards, and new Human Resources compliance obligations for Transportation Network Companies (“TNC”). Note that this Act does not apply to drivers who are employees. The Act allows workers to form, join, and participate in the activities of driver organizations, to bargain through representatives of their own choosing, and to engage in concerted activities for the purposes of bargaining or other mutual aid protection. To participate, drivers must meet a "20 rides in six months" threshold to ensure a more established connection to the industry. Despite the new rights allowed to gig drivers, they continue to be classified as independent contractors under California law. What employers need to know: Drivers Have New Rights to Representation - The Act allows drivers to form or join Driver Representative Organizations (DROs), which can collectively advocate for drivers, participate in sector-wide “meet and confer” processes, and raise concerns about pay, safety, and working conditions. TNCs must treat these rights similarly to traditional labor relations protections. Anti-Retaliation Rules Apply - TNCs may not retaliate against drivers for joining or supporting a DRO, participating in collective discussions, or raising safety or working condition concerns. Further, the Act emphasizes certain unfair employer practices, including but not limited to failure to provide requested information, interfering with the organization or activities of, discouraging membership, blacklisting, coercing, or otherwise inappropriately engaging with certified driver bargaining organizations. TNCs must ensure that driver deactivation decisions are well documented, performance-related actions are consistent and non-discriminatory, and that no adverse employment action appears in the New Notice and Posting Requirements TNCs must ensure that drivers receive: Written notice of their rights under the Act, information about DROs, and instructions for filing complaints or participating in representation processes. These notices must be accessible in the driver app and be provided in the driver’s primary language. Within two weeks after the end of each calendar quarter, commencing with the quarter ending on March 31, 2026, each covered TNC shall submit the following items to the board: Driver’s name, driver’s license number, and, to the extent known by a TNC, the most recent email address, local residence and mailing addresses, cellular telephone number; and The TNC driver’s first date joining the platform and the number of rides the TNC driver completed in the previous six months, for each TNC driver who has completed at least 20 rides within the State of California within the prior six months to any “union” related protected activity. Further Implications TNCs must be careful to recognize potential protected activity and avoid statements that could be interpreted as discouraging representation. They must also take steps to handle drivers’ complaints neutrally and consistently. Given the nature of the new law and its structure, encouraging interaction between drivers and TNCs, TNCs can reasonably anticipate a sharp increase in driver inquiries, including inquiries about pay transparency and working conditions, and increased scrutiny of deactivation decisions. Drivers will also likely initiate requests for meetings or mediation, creating significantly more work for involved human resource professionals. A consistent, documented process will be essential to ensure compliance. New Ordinance in Los Angeles Effective December 1, 2025, Los Angeles hotel employers with 60 or more guest rooms must provide public housekeeping training of at least six hours on topics including: Hotel worker rights and employer responsibilities. Best practices for identifying and responding to suspected human trafficking, domestic violence, or violent or threatening conduct. Best practices for effective cleaning techniques to prevent the spread of disease. Best practices for identifying and avoiding insect or vermin infestations. Best practices for identifying and responding to the presence of other potential criminal activity. What employers should do: Employers in the City of Los Angeles who have a hotel with 60 or more rooms need to provide the above training to employees. The training must be provided by a certified trainer and the employer, must be 5 ½ hours in length and the employer must pay for the training. Delaware 2025 HS 1 for HB 55: An Act to Amend the Delaware Code Relating to Prohibited Discrimination on the Basis of Military Status Signed by the Governor 7/23/25 (effective immediately) – Adds “military status” as a basis for discrimination to state public accommodation, housing, insurance, education, and employment law. 19 Del. C. Ch. 37: Family and Medical Leave Insurance Program 12/1/25 - Paid Family and Medical Leave Act contributions to the program commence for employers with 10 or more employees. 2026 19 Del. C. Ch. 37: Family and Medical Leave Insurance Program 1/1/26 – Paid Family and Medical Leave Act became effective; employees may begin taking leave under the statute. 2027 HS 2 for HB 105: An Act to Amend Title 19 of the Delaware Code Relating to Employment Practices Signed by the Governor 9/26/25 (effective 9/26/27) – Creates 19 Del. C. 709C, Pay Transparency Act, mandating that employers disclose hourly/salary compensation range plus benefits description to all applicants for employment. Notable Pending Legislation SB 63 w/ SA 1: An Act to Amend Title 19 of the Delaware Code Relating to Labor Expands workplace fraud liability to all upstream prime and general contractors (and construction managers) for workplace fraud (misclassification of employees as independent contractors) violations by downstream contractors, regardless of privity of contract. Passed by Delaware House and Senate, vetoed by the Governor 8/28/25. Future status is uncertain. SB 197: An Act to Amend Title 14 And Title 29 Of the Delaware Code Relating to Project Labor Agreements for School Public Works Contracts Introduced 6/26/25 – Imposes union-only project labor agreements on all public and charter school construction. Likely illegal as pre-empted by NLRA. Future status is uncertain. 19 DE Admin. Code 1322: Proposed Amendments to Delaware Prevailing Wage Regulations Changes proposed but not promulgated due to considerable objections, various changes exceeding statutory authority, and numerous errors and omissions. Future status is uncertain. New York New York City Earned Safe and Sick Time Act, Amendments (Int. 780 A) Effective February 22, 2026, New York City amended the New York City Earned Safe and Sick Time Act (“ESSTA”) to require private employers of any size to provide all employees with 32 hours of frontloaded, unpaid safe and sick time that is available for use immediately upon hire and each calendar year thereafter. These hours are in addition to existing paid safe and sick time hours required under ESSTA. The amendment expands covered uses of leave to include caregiving needs by an employee “caregiver” for a minor child or defined “care recipient,” workplace violence-related needs for the employee or employee-caregiver for a family member, public disasters (e.g., workplace closures, shelter in place orders, school/childcare restrictions), and benefits and housing proceedings. Although no waiting period is permitted to be imposed, employers may set a minimum increment of up to four hours per workday and need not carry over unused unpaid hours. Employers are required to track paid and unpaid leave balances (e.g., on pay statements or other written documentation for each pay period). New York State Paid Prenatal Personal Leave, NYLL § 196-b(4-a) Effective January 1, 2025, New York requires that any private sector employee, regardless of employer size, working in the state be afforded at least 20 hours of paid prenatal personal leave in any 52-week period as part of the New York State Paid Sick Leave Law. This leave obligation, which amends NYLL § 196-b to add section 4-a, is separate from and in addition to the hours of safe and sick leave already required under NYLL § 196-b. Leave under NYLL § 196-b(4-a) may be used only by the pregnant employee for prenatal healthcare services such as medical appointments, exams, procedures, testing, monitoring, and fertility treatment. Employers cannot require employees to exhaust other accrued safe and sick leave first, and the 52-week period begins the first time the employee uses prenatal leave. If an employee separates from the employer, the employer has no obligation to pay the employee for unused paid prenatal leave hours. Notably, guidance issued by the New York Department of Labor states that spouses, partners, or other support persons are not eligible to use paid prenatal leave to attend prenatal appointments with a pregnant person. Employers should update their handbooks or create a standalone policy describing eligibility, covered uses, procedures to request leave, and an anti-retaliation provision. Employers should also update their payroll or paid time off tracking systems to comply with the requirement to separately track a prenatal leave balance. New York State Paid Prenatal Leave/FAQs New York City Paid Prenatal Personal Leave, NYC Admin Code § 7-216 Effective July 2, 2025, New York City amended the New York City Earned Safe and Sick Leave Law to add the same 20-hour paid prenatal leave requirement as added by New York State earlier in the year. The city law contains additional requirements beyond the State’s law, such that employers must provide a written notice on pay stubs detailing hours used and any remaining balance for each pay period, as well as specify that “reasonable” notice for foreseeable leave is at least 7 days and that “as soon as practicable” is the standard for unforeseeable leave. The City law further requires maintaining records of leave use, dates, and amounts for at least three years, and that employers distribute an updated “Notice of Employee Rights” to new and existing employees. New York State Right to Paid Prenatal Leave/FAQs New York City Lactation Accommodation, Local Law 109 (2014 109) Effective May 8, 2025, NYC Local Law 109 of 2024 amends the New York City Human Rights Law (“NYCHRL”), primarily codified in New York City Administrative Code § 8-107(1)(b), to modify the City’s existing lactation room and policy obligations, including that employers must physically and electronically post their lactation accommodation policy and the policy must acknowledge New York State law which provides 30 minutes of paid lactation break time per pumping session. Employees may use paid break or meal time for any additional needed time. NYC Commission on Human Rights Retail Worker Safety Act, NYLL §27-e Effective June 2, 2025, employers with ten or more retail employees must adopt a retail workplace violence prevention policy that is equivalent to the model policy or more protective and train all employees annually. Notice of training must be provided at each annual session. For retailers with 500 or more employees in New York State, silent response and panic buttons, as well as training on their use, are required in covered retail locations starting January 1, 2027. NY Department of Labor/Retail Worker Safety Expanded Mental Injury Coverage, Workers’ Compensation Law § 10(3) Effective January 1, 2025, New York amended the Workers’ Compensation Law § 10(3) to allow any worker to file a claim for a mental injury caused by extraordinary work-related stress. This amendment expands workers’ compensation coverage for mental injuries from extraordinary work-related stress beyond first responders to all workers. As of June 4, 2025, the Workers’ Compensation Board may not disallow a claim simply because the stress was not greater than normal workplace stress where the claim is for PTSD, acute stress disorder, or major depressive disorder premised on extraordinary work-related stress attributable to distinct work-related events and supported by medical evidence under the DSM criteria. The mental health condition can be a standalone claim and does not need to be tied to a physical injury. New York State Medical Treatment Guidelines Reproductive Health Decision-Making, NYLL § 203-e As of January 1, 2025, employers were again required to include a notice of employee rights and remedies under NYLL § 203-e in handbooks or as a standalone policy, as the U.S. Court of Appeals for the Second Circuit vacated the prior injunction, which had eliminated the written notice requirement. There is no model policy available at present. Policies should thus be carefully crafted to note that the employer will not request or seek to access an employee’s personal information regarding the employee’s or the employee’s dependent’s reproductive health decision making, including but not limited to, the decision to use or access a particular drug, device, or medical service, without the employee’s prior informed affirmative written consent. The policy should include decisions to use contraception, fertility treatments, or other reproductive health services as covered reproductive health decision-making. A policy should also note that the employer will not discriminate or retaliate for these choices, and employees’ related medical information disclosed to the employer will remain confidential. https://www.govinfo.gov/content/pkg/USCOURTS-ca2-22-01076/pdf/USCOURTS-ca2-22-01076-0.pdf New York State COVID-19 Quarantine Paid Sick Leave New York’s COVID-19 quarantine/isolation paid sick leave mandate expired July 31, 2025. Employees may rely on the New York State Paid Sick Leave Law and, if applicable, the New York City Earned Safe and Sick Leave Law, for illness, diagnosis, treatment, or care for COVID-19, including COVID-related health conditions. Equal Rights Amendment to N.Y. Const. Art. I § 11 Effective January 1, 2025, the New York State Constitution’s equal protection clause prohibits discrimination based on ethnicity, national origin, age, disability, and sex (including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy). Employers should revise EEO statements to list the new protected classes and consider EEO training refreshers referencing the constitutional amendment. Illinois Illinois has enacted several new laws effective January 1, 2026, impacting employment agreements, workplace practices, and employee rights. Workplace Transparency Act Amendments (HB 3638) These amendments expand protections for employees and contractors, covering all violations of state and federal employment laws, not just discrimination. Employers cannot impose unilateral contract terms that shorten statutes of limitations, apply non-Illinois law, require out-of-state venues, or restrict truthful disclosures or concerted activity. Confidentiality clauses in settlement or termination agreements must include separate consideration and cannot waive future concerted activity. What employers should do: Review and update all agreements, revise confidentiality provisions, and train HR and legal teams on compliance. Human Rights Act Amendments (HB 3773) Employers must not use AI in ways that discriminate based on protected classes or use zip codes as proxies. They must also notify employees when AI is used in employment decisions. What employers should do: Audit AI-driven hiring and decision-making systems, implement clear notification processes, and train HR and IT teams. Nursing Mothers in the Workplace Act Amendments (SB 212) Employers must pay employees for lactation breaks at their regular rate and cannot require the use of paid leave for these breaks. What employers should do: Update break policies, adjust payroll systems, and communicate changes to staff. Blood and Organ Donation Leave Amendments (HB 1616) Part-time employees are now entitled to 10 days of organ donation leave, with pay calculated based on their average daily pay over the last two months. What employers should do: Revise leave policies and ensure payroll accuracy. Victims’ Economic Security and Safety Act Amendments (HB 1278) Employers cannot retaliate against employees who use employer-issued devices to document domestic or gender-based violence. They must grant access to related information on those devices and post notices explaining employee rights. What employers should do: Update device-use policies, ensure proper notice postings, and train managers on retaliation prohibitions. Pennsylvania CROWN Act During this period, the most significant statewide development was the expansion of Pennsylvania’s anti-discrimination framework through amendments to the Commonwealth’s CROWN Act, which became effective on January 24, 2026. These amendments expressly prohibit employment discrimination based on hair texture, protective hairstyles, and certain head coverings and hairstyles historically associated with religious creeds. The statute specifically identifies styles such as locs, braids, twists, coils, Bantu knots, afros, and extensions, making clear that appearance-based policies can no longer be justified where they disproportionately affect racial or religious groups. What employers should do: This change requires a careful reassessment of grooming standards, dress codes, and professionalism policies, as well as supervisor training to ensure that enforcement practices do not give rise to disparate treatment or disparate impact claims under the Pennsylvania Human Relations Act. Workplace Posting Requirements In early January 2026, Pennsylvania employers also became subject to a new workplace posting obligation aimed at increasing awareness of benefits available to veterans and their families. Effective January 3, 2026, employers with more than 50 full-time employees must post a notice prepared by the Pennsylvania Department of Labor and Industry that outlines federal and state veterans’ benefits and services. The required posting includes contact information for the U.S. Department of Veterans Affairs Crisis Line and county directors of veterans affairs. What employers should do: Although this change does not alter substantive employment rights, it adds a compliance obligation that employers must integrate into their standard posting practices, particularly those operating multiple worksites across the Commonwealth. Pittsburgh’s Paid Sick Days Act Amendments to Pittsburgh’s Paid Sick Days Act, effective January 1, 2026, increased the annual caps on paid sick leave accrual while maintaining the existing accrual rate of one hour for every 30 hours worked. Under the amended ordinance, employers with 15 or more employees must now permit employees to accrue and use up to 72 hours of paid sick leave per year, while smaller employers must allow accrual and use of up to 48 hours annually. What employers should do: These changes require Pittsburgh employers to update payroll systems, written leave policies, and employee handbooks. Texas Responsible Artificial Intelligence Governance Act (HB 149) Effective January 1, 2026, Texas’s Responsible Artificial Intelligence Governance Act establishes a comprehensive regulatory framework governing anyone who conducts business in the state or develops or deploys AI systems for use in Texas. The Act adopts a broad, technology-neutral definition of artificial intelligence systems and assigns compliance responsibilities based on whether an entity develops or deploys such systems. More specifically, the Act prohibits the development or deployment of AI intended for social scoring or discriminatory purposes, imposes baseline duties on developers and deployers, and requires governmental entities to notify individuals when they interact with AI. It also preempts local AI regulations, vests exclusive enforcement authority with the Texas Attorney General, and creates both an Artificial Intelligence Council and a first‑in‑the‑nation regulatory sandbox to support supervised testing of AI innovations. What employers should do: Audit AI tools to ensure they are not developed or deployed for any prohibited intent, update internal policies to prohibit harmful or discriminatory AI uses, and train staff on compliance with the new legal standards. Amendments to Non-Compete SB 1318, amending SB 1318, amending Effective September 1, 2025, healthcare practitioner non-compete amendments take effect under SB 1318, amending Tex. Bus. & Com. Code Ann. § 15.50 and adding Tex. Bus. & Com. Code Ann. § 15.501. Under the amendments, non-compete agreements with physicians and other health care practitioners, including dentists, professional and vocational nurses, and physician assistants, must (1) allow the physician to buy out the non-compete for no more than the physician’s annual salary and wages at the time of terminating the contract or employment, (2) not last more than one-year post-termination, (3) be limited geographically to no more than five miles of the physician’s primary practice location, and (4) be clearly and conspicuously stated in writing. The statute further caps non-compete buy-outs at the employee’s salary. The amendments apply only to new or renewed agreements after the effective date. Trey’s Law, SB 835 Effective September 1, 2025, Texas’s Trey’s Law, Senate Bill 835 adding Tex. Civ. Prac. & Rem. Code Ann. §§ 129C.001 and 129C.002, voids and renders unenforceable non-disclosure or confidentiality agreements and provisions prohibiting a person from disclosing an act of sexual abuse or facts related to an act of sexual abuse. The law covers all civil cases for sexual assault, regardless of the victim’s age or when the abuse occurred. The law applies to agreements made before September 1, 2025, but enforcing prior NDAs will now require a court order. Other parts of settlement agreements, like the monetary amount, can remain confidential.
January 26, 2026
Trademark and Copyright
Actor Matthew McConaughey Registers Sensory Trademark “Alright, Alright, Alright” in Enforcement Effort Against AI Deepfakes
Well-known actor Matthew McConaughey has attracted headlines following the registration of a number of trademarks, not just related to brands with which he may be associated, but also those that address his pop-culture persona. Most interesting among these is McConaughey’s recent registration of the phrase "Alright, alright, alright," first uttered by the actor in the 1993 film Dazed and Confused, which has become strongly associated with the actor’s laid-back, Texas public image. McConaughey, however, has not only registered “Alright, Alright, Alright” as a trademark, but also as less common sensory marks. Sensory marks are trademarks that identify brands through senses other than just text or static logos. Well-known examples include the three-note (G-E-C) NBC Chimes, the MGM lion’s roar accompanying many well-known films, and the specific scent of Play-Doh. According to McConaughey’s legal team, the registration of these sensory marks and other recent registrations represents an attempt to enforce against the ever-increasing problem of AI-generated “deep fake” videos, in which celebrities or other well-known individuals are impersonated, in strikingly authentic fashion. The registration of “Alright, Alright, Alright,” (Reg. Nos. 7995951 and 8070191) as sensory marks, specifically, has the potential to represent a tactical shift in celebrity rights management. By securing federal trademark protection for the specific sound and motion of his delivery of the phrase, McConaughey attempts to move beyond the patchwork of state-level "right of publicity" laws. A federal trademark registration provides nationwide constructive notice of McConaughey’s ownership and creates a legal presumption that his distinct mannerisms and delivery of the phrase serve as source identifiers for the registered Class 09 goods and Class 41 entertainment services, which constitute his on-screen performance. In the context of AI, this allows his legal team to pursue infringement claims under the Lanham Act against entities using AI voice clones or deepfakes to endorse products. Unlike a right of publicity claim, which often requires proving the appropriation of one's "likeness," a trademark claim focuses on consumer confusion; specifically, whether an AI’s use of the catchphrase falsely suggests McConaughey’s sponsorship or approval. However, relying on trademark law to police AI has significant limitations. The primary hurdle is the "commercial use" requirement; trademark laws are designed to prevent consumer confusion in the marketplace, not to protect personal dignity. Consequently, this registration may be ineffective against non-commercial AI generations, such as artistic deepfakes, memes, or satire, which may be protected by the First Amendment or the doctrine of Fair Use. Ultimately, the scope of protection offered by these new registrations may be narrow. While McConaughey can now vigorously enforce against an AI creation saying “alright, alright, alright," this specific registration offers little recourse against an AI model mimicking his voice to say anything else. Infringers could potentially bypass this protection by simply creating AI content that avoids his registered catchphrases while still exploiting his vocal timbre and mannerisms. While this registration adds one weapon to his arsenal, it is likely a specific deterrent rather than a comprehensive shield against unauthorized digital exploitation.
January 26, 2026
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