Construction
Practical Steps to Take When a Schedule or Time Impact Dispute Arises
Construction projects are frequently delayed and take longer than originally anticipated. When a project is delayed, claims often arise for liquidated damages, delays, disruptions, and cost overages. Here are a few practical considerations for where to start when organizing your time impact dispute. Start with the Schedule Often, litigants immediately send threatening letters regarding costs, claims, losses, blame, etc.; however, it is best to start with a clear understanding of the delay as shown on the schedule. To do so, your project manager, attorney, and any expert consultant should start by reviewing key, fundamental information. Was there a written contract with a completion date or milestone deadlines? Were those deadlines extended by already approved change orders or extensions of time? Did the contract have a baseline schedule? Was the project schedule updated throughout the project? Were there updated as-built schedules (showing the work durations, as actually performed), as well as updated projected schedules for the work yet to be completed? Are the schedules available in the native software format? Are there accompanying schedule narratives? An initial analysis should start with a clear understanding of the schedule itself. Establish why the Project was Delayed Alongside the schedule for as-built and projected work, it is necessary to understand what events, incidents, acts, or omissions are the supposed causes of the delay. Frequently, claimants will identify a list of issues or problems on the project and assert that these caused the delays. That’s a good start. But even better: You should be able to identify a list of time-impact events (incidents, acts, or omissions) that are the cause of the delay. And for each event, identify how and to what duration/extent it impacted the critical path of the work. Additionally, for each event there should be proof. Text messages and emails are typically very burdensome, inefficient, and sometimes inadequate to show the event. For example, if your work is delayed because a separate trade’s predecessor work is incomplete (or incorrect), it is best to have more documentation than an email. There should be documentation showing the origin, investigation, remedial action, and conclusion of the incident. There should be photographs, daily logs, meeting minutes, RFIs, redesign, and/or change order proposals. For each event, you should be able to present a narrative and supporting proof that concisely explains what the event was and how it impacted the critical path for the work. Establish that Notice of the Event was Issued, and Progress it to a Formal Claim if Necessary Typically, the contract documents differentiate notice of the event as different than a formal claim. Notice of the event is for the purpose of addressing the issue. This serves both a legal purpose, as well as a construction purpose— to keep the project moving forward. Most contract documents will require notice to be given with reasonable promptness. This should be a documented written notice, which might accompany an RFI or other documentation, such as a change order proposal. Recognize that notice of the issue should clarify what the issue is, and if you believe it will cause additional costs or time. If you only request additional costs or additional time, but not both, you may be waiving your right to full relief. Generally, after the notice of the event has been issued, if the matter has not been resolved through some other means, it is best practice to issue a formal request for equitable adjustment, change order, or invoice, seeking the remedy of additional time, money, or both. It is important to track costs and delays with precision so that your requested relief is specific, reasonable, and supported by the evidence. If you fail to submit the REA/CO, then, it may be more difficult to obtain relief. Most contracts have deadlines for submitting such requests, and, further, most project players are unimpressed with end-of-project REA/CO, because it is preferred to address these issues while the item is pending and immediate. Most contract documents will then have a “claims process” for transitioning the proposed or rejected REA/CO to a formal claim. When consulting with your attorney or expert, the quantifications (and supporting proof) for the requested time or compensation should be organized to facilitate the most efficient approach to claims handling. To summarize: Start with clear, organized documentation of the project schedule and deadlines Prepare organized explanations and proof of the time impact events Accurately quantify the impact with supporting proof so that the requested time and compensation are based on credible data/evidence Promptly notice the time impact issue, the request for relief and, if the request is rejected, the claim When handling time impact issues on a project, whether that be delays, disruptions, liquidated damages, or related cost overages, it is best to consult with your attorney and experts. By properly organizing, supporting, and noticing requests/claims, the preference is to reach amicable resolutions without the need for lengthy claims processes or litigation. This article also appears in the January 2026 edition of the Spokesman, a publication of ABC Keystone.
January 14, 2026
Family Law
Penalty Clauses in Prenuptial Agreements: Lessons from the Reported “Cocaine Clause”
Prenuptial agreements have long evolved beyond simple asset division roadmaps. Modern prenups address conduct during marriage, incorporating so-called “penalty” or “incentive” provisions that attach financial consequences to specific behaviors. While these clauses can be powerful planning tools, they also sit at the intersection of contract law, family law, and public policy — an intersection that courts carefully scrutinize. Frequently, penalty or incentive clauses find their way into celebrity prenuptial agreement. Keith Urban is an Australian-American country music performer who has won four Grammys and 15 Academy of Country Music Awards. Nicole Kidman is an Australian-American actress and producer. The couple was married on 25 June 2006 at Cardinal Cerretti Memorial Chapel on the grounds of St Patrick’s Estate, Manly, in Sydney. They have two daughters. Various news outlets are reporting that Keith and Nicole negotiated an extensive, detailed prenuptial agreement before getting married. Interestingly, it appears that one clause of the prenuptial agreement provided a monetary reward to Keith if he maintained his sobriety. Per sources, Keith was to abstain from alcohol and other drugs, including cocaine, and would earn $600,000 per year for doing so. Considering Keith has reportedly been sober since 2006, he could be in line to receive more than $11 million as a result of the alleged prenuptial agreement clause. Penalty clauses in prenuptial agreements generally impose financial consequences if one spouse engages in specified conduct during the marriage. These provisions may be framed negatively (a reduction or forfeiture of benefits upon breach) or positively (financial incentives for compliance.) Common subjects include infidelity, substance abuse, gambling, or other addictive behaviors, and failure to pursue agreed-upon education or employment goals. Other not so common subjects include weight gain, boundaries on family visits— even going so far as to ban specific relatives from making appearances—regulating social media behaviors, clauses protecting pets and money available for their support. A creative mind can find a penalty for the gambit of behaviors. In theory, these clauses allow parties to align financial outcomes with shared values or risk management goals. However, in practice, enforceability is far from guaranteed. Courts typically analyze prenuptial agreements under contract principles, tempered by heightened scrutiny due to the marital context. Penalty clauses raise particular concerns: Public Policy Courts are reluctant to enforce provisions that appear to regulate personal behavior in a way that undermines the marital relationship or encourages divorce. A clause that functions as a punishment rather than a reasonable allocation of risk may be deemed void as against public policy. Fault-Based Restrictions Many jurisdictions have moved away from fault-based divorce regimes. Provisions that effectively reintroduce fault — by attaching severe financial penalties to personal misconduct — may be disfavored. Vagueness and Proof Problems Behavioral clauses often hinge on subjective or difficult-to-prove conduct. What constitutes “use,” “relapse,” or “impairment”? Who bears the burden of proof? Ambiguity can render a clause unenforceable. Unconscionability at Enforcement Even if a clause was reasonable at the time of signing, courts may examine whether enforcement at divorce would be unconscionable given the parties’ circumstances at that time. Whether or not the reported clause would ultimately be enforced, it serves as a useful illustration of how parties attempt to balance compassion, risk allocation, and financial certainty. For practitioners and clients considering penalty clauses in prenups, several best practices emerge: Frame provisions as incentives or risk allocation, not punishment Define conduct precisely and address evidentiary standards Ensure proportionality between the conduct and the financial consequence Confirm full disclosure and independent counsel for both parties Revisit public policy considerations in the relevant jurisdiction Penalty clauses in prenuptial agreements occupy legally sensitive territory. While high-profile examples like the reported Urban–Kidman provision capture public attention, their real value lies in what they teach about careful drafting and realistic expectations. Prenuptial agreements are strongest when they anticipate future uncertainty without attempting to police the marriage itself — a balance that remains as delicate as it is essential. Stay tuned for what interesting penalties may find their way into the potential and highly probable Taylor Swift and Travis Kelce prenuptial agreement.
January 13, 2026
Trademark and Copyright
Embedded Videos — Fair Use or Infringement? What the Latest Court Decision Means for Publishers
In early December 2025, the Southern District of New York issued a decision in Level 12 Productions, LLC v. Mediaite, LLC. The holding highlights a growing risk for publishers and businesses that use embedded social media content in their online publications – a widely used practice among a multitude of media companies. This case concerns two videos created by journalist Brendan Gutenschwager, both of which are owned by Plaintiff Level 12 Productions. Defendant Mediaite embedded these videos in articles without obtaining licenses from the plaintiff. The first video showed an anti-immigration rally outside New York City’s Gracie Mansion; the second captured celebrity couple Chrissy Teigen and John Legend walking through a protest at a White House Correspondents’ Dinner. Mediaite’s use of the latter video also included commentary by pundit Megyn Kelly during the playing of the video. Both videos were registered with the U.S. Copyright Office. Mediaite argued that its embedding of these videos did not constitute infringement under the Ninth Circuit’s “server test” and claimed its use was fair use. The Ninth Circuit’s “server test” doctrine holds that a website does not infringe when it embeds protected material hosted on a third-party server, because the site never creates or stores a copy of the work. Instead, a user’s browser is merely directed to retrieve it from its original source. In other words, embedded video is considered to be equivalent to linking to a source rather than a public display as defined by the Copyright Act. The Second Circuit has previously declined to adopt the Ninth Circuit’s server test in prior disputes involving similar uses of embedded video. Judge Vargas followed the Second Circuit’s precedent, rejecting the server test and reaffirming that embedded video constitutes a public display under 17 U.S.C. § 101 even if the content itself is hosted on a third-party server. Regarding fair use, the court reached different conclusions for the two videos. In video one, the court did not overturn the lower court’s holding, which found no fair use. For video two, however, the court held that Mediaite’s use was fair, since Mediaite embedded the copyright-protected video in a manner featuring Megyn Kelly’s commentary on the same, and thus the copyright-protected material was effectively transformed. The fact that media publishers cannot rely on the Ninth Circuit’s server test in the Second Circuit, while not surprising, remains significant, as it limits publishers’ ability to embed media in online publications without a license. On the other hand, this holding does little to affect either Circuit’s application of highly contextual fair use analyses. Courts will still look for a transformative purpose to establish that a use is fair. For publishers and media outlets, the takeaway is clear: audit your embedding practices and treat embedded social media content as you would any other copyrighted material. When in doubt, secure a license, especially if the embedded content is central to your story but not the subject of commentary.
January 9, 2026
Labor and Employment
The Post-Holiday Reset: Re-Establishing Communication and Availability Norms
The weeks following the holidays often bring a familiar feeling: full inboxes, overlapping priorities, and a sudden return to urgency after a brief pause. During the holiday season, many teams naturally loosen expectations around response times and availability. The challenge in January is not simply returning to work, but resetting clear and healthy norms before old habits (or unhealthy ones) take hold again. In today’s hybrid and remote work environments, boundaries around communication are rarely self-correcting. Without intentional reset moments, employees may assume they are expected to remain as available as they were during peak periods, even when that level of responsiveness is no longer necessary or sustainable. The post-holiday return provides a rare opportunity to recalibrate. One of the most common sources of confusion is silence. When organizations do not explicitly restate expectations, employees are left to infer them based on behavior. A single late-night email or weekend message can unintentionally signal that immediate responses are once again required. Over time, these small signals shape norms that are difficult to unwind. Re-establishing healthy expectations starts with clarity. Teams benefit from shared understanding around what constitutes urgent communication versus what can wait. Not every message needs an instant reply, yet modern tools make everything feel immediate. Resetting norms means reinforcing that responsiveness should be purposeful, not constant. Manager behavior plays an outsized role in this process. Employees tend to mirror what they see, not what they are told. If leaders resume sending messages at all hours or praising rapid responses, boundaries quickly erode. Conversely, when leaders model reasonable response times and respect off-hours, those practices spread organically across teams. It is also important to acknowledge that flexibility cuts both ways. Many employees value the autonomy to step away during the day or adjust schedules as needed. That flexibility works best when paired with mutual respect for personal time. Resetting expectations is not about reducing productivity; it is about ensuring that availability aligns with actual business needs rather than habit or inertia. January is also an ideal time to address roles that genuinely require extended availability. Rather than allowing informal expectations to creep back in, organizations should be intentional about when and why off-hours communication is necessary. Clear parameters reduce frustration and help employees understand when responsiveness truly matters. Healthy communication norms do more than protect work-life balance. They improve focus, reduce burnout, and enhance collaboration. When employees are not operating in a constant state of interruption, the quality of work and decision-making improves. As teams settle back into routine after the holidays, the question is not how quickly everyone can return to being “always on.” The better question is: which norms will support sustainable performance throughout the year? A thoughtful reset now can prevent misunderstandings, protect morale, and set a tone that lasts well beyond the first quarter.
January 7, 2026
Mergers and Acquisitions
Preparing for a Sale in 2026: What Retiring Business Owners Need to Know
As we begin 2026, we find ourselves right in the middle of “Peak 65,” the period of time between 2024 and 2027 when approximately 4.1 million Americans will turn 65 each year. Also known as the “gray tsunami,” this powerful demographic shift has profound implications for closely held and family-owned businesses. For many of these business owners finding themselves at retirement age, 2026 will be a pivotal year, particularly for those who want to exit on their own terms through a sale. We previously examined this issue in 2025, but as the next round of business owners look at a potential sale in 2026, it’s time to revisit the issue and some of the specific considerations for sellers this year. Market Timing and Buyer Behavior In 2026, buyers are still disciplined. They will pay for quality, predictability, and growth, but they will penalize uncertainty. This means it is important to position the business as “recession-resilient,” showing recurring revenue, diversified customers, and stable margins. Sellers should also avoid sending a signal of urgency. Many buyers view a retirement-driven sale as a “must sell.” This can weaken the leverage on the seller’s side. In 2026, sellers should also anticipate longer diligence and tougher deal terms, especially if your house is not in order. Financial Readiness Having strong, clean financials is the single biggest value driver. 2026 buyers are going to heavily scrutinize everything from the last 24-36 months of financials to working capital trends to cash flow vs. EBITDA. This means it is important that your financials tell a clean story. Look carefully at issues such as owner compensation, what family is on the payroll, personal expenses, and one-time expenses. Remember that buyers will discount anything that is unclear or that you must overly explain. If it takes more than 30 seconds to explain an adjustment, you can likely expect pushback. Owner Dependence and Transition It is important to understand that buyers are not buying you. They want to buy a business that works without you. They will be looking for red flags such as too much control over key customer relationships or pricing, hiring or spending. If the owner is the only one who really “knows how things work,” it doesn’t instill confidence in the future of the business. Make sure you are delegating customer relationships, creating formal processes for pricing, approvals, and reporting, and identifying or elevating a second in charge or leadership team that can carry the torch moving forward. You should also document key processes and procedures so that there is a clear roadmap once you exit. Deal Terms In 2026, deal terms are going to be just as important as the headline price. Many sellers are focused just on the price, but they will regret the deal terms down the road. This year, buyers will be focused on terms such as earnouts tied to performance, seller notes, escrows and indemnity exposure, and post-closure employment or consulting obligations. Before you decide to sell, you must determine how long you are willing to stay involved, as well as what level of risk you’re willing to tolerate after the close. Are you looking for certainty or are you looking for upside? The more clarity you have on these issues going into negotiations, the less likely you are to make an emotional decision you will regret later. Family Dynamics One often overlooked issue that sellers do not consider is the dynamics of the family within the business. Emotional risk is viewed as financial risk, and this can be tricky when a family business comes up for sale. Do you intend for any children or relatives to stay on with the business? Is everyone aligned on value and timing? And what kind of family perks are embedded in the business? All of these are vital questions to answer well ahead of a sale. 2026 buyers will move away from uncertainty around family involvement or adjust the price accordingly. Looking Ahead For retiring business owners, selling a company is one of the most consequential transactions of their lives. In the context of the gray tsunami and an increasingly active middle-market M&A environment, 2026 is filled with opportunities as well as risks. With thoughtful preparation, it is possible not only to maximize value, but also to protect the legacy built over decades and transition into the next chapter on favorable terms.
January 6, 2026
M&A Nuggets
M&A Nugget: A Failed Transaction is Not the End — It is the Beginning of M&A Success
Many business owners have experienced a failed transaction. After devoting months, if not years, and extraordinary amounts of time, resources, and money to complete a business sale, the acquirer backs out. The reasons vary from external forces (general market or industry conditions) to seller’s internal issues (usually operational or financial challenges) to substantial due diligence items that raise the risk level for the acquirer (such as a large unanticipated liability, tax debt, or technology debt) to a change in the acquirer’s business direction. Although a termination of a transaction by an acquirer is disappointing, it can also present an opportunity to the business owner. The failure of a transaction should lead the business owner to examine the reasons for the acquirer backout and address them diligently and continuously. For example, one common internal factor leading to a buyer backout is an inadequate sales team, resulting in lower than expected revenues, or an insufficient EBITDA. Like a major league baseball team that makes a sizeable investment by signing a free agent, investing in an upgrade in the sales team can provide an ultimate payoff multiple times the investment. If an acquirer backout is a result of risky due diligence items that arose, steps should be taken to address them, for instance, by implementing more robust risk management policies and procedures. The fact is that many sellers left standing at the altar by their purchaser ultimately engage in a very successful transaction. Two specific experiences I have had in this regard are (1) a seller whose purchaser backed out in early 2020 because of lower than hoped for EBITDA projections, the seller then doubling down its efforts to increase sales and EBITDA with a resulting transaction three years later with the same purchaser for a purchase price 40% higher than the proposed 2020 purchase price; and (2) a seller’s potential acquirer backed out of a $100,000,000 purchase in 2022, leading to the seller redoubling its efforts to increase sales and EBITDA, with an ultimate sale only one year later for an enterprise value of $160,000,000. The lesson here is that in the M&A world, as in life, a failure can lead to great success.
January 6, 2026
Construction
Will New Rules Kill Mid-Level Construction in NYC?
In politics, in building, in personal goods, and in anything else, for years now I’ve been asking the same question…how is that going to be paid for? New government programs sound great if the funds are available, but if they will require raising taxes, in my lifetime, it has been a nonstarter. My kid wants a drone for Christmas, but I can’t afford it. And for builders and contractors, new legislation has led to another step in the direction of development being just too darn expensive. RPAPL 881 was amended and recently signed into law by New York Governor Hochul, and it contains provisions that will drive development costs even higher. In my opinion, amendments will either cause or contribute to pricing the small and medium size players out of the market, thereby impacting all construction projects other than the very, very biggest. Anecdotally, New York buildings have been turning over beautifully at all economies of scale. Many tenements of old have been replaced by new, more modern low and medium rises and other types of buildings. The city now has a vibrant new look, and I don’t just mean the skyscrapers. I would hate to see that stunted. The principle behind amending RPAPL 881 was a good one, to make an extraordinarily ambiguous statute more specific. Its aim was to provide guidance and to manage everyone’s expectations. However, in my reading of the final language, even though the governor has requested amendments, the bill primarily opens new cans of worms rather than closing them. For instance, there’s expanded consideration of the occupants of multiple dwellings. Under the old law, developers typically only dealt with neighboring boards and building owners. Now they are going to have to deal with the tenants and occupants, too. Litigation is going to be untenable insofar as requiring joinder of numerous parties, to effectuate service on that expanded number of people, and to engage with many more parties in the litigation process. Negotiations will be just as onerous. Agreements will have to specifically consider the needs and wants of everyone affected down to the individual. Each individual in a building will have expanded standing and a larger seat at the table to assert their own priorities. In addition, the new bill provides for the potential of a license fee for a reduction in value of a neighboring property. This will impact costs across multiple areas. In litigation, it will require expanded expert testimony and fact-finding, and in a negotiation context, practitioners will be seeking fees higher than what was previously available on this basis. In my humble opinion, the largest problem with this bill, actually benefits the developer over the neighbor. I read the legislation as having a private takings clause. The new bill permits a court to grant a developer the right to underpin the adjoining property. If you understand what underpinning is, you will know that this inclusion constitutes a permanent takings clause that does not have to involve any government. Eminent domain in a private context, is not permissible. Only governments may seize property from others on a permanent basis, and even in those cases they must provide fair market value (which, if implemented, would be an additional cost to the developer) as a result, I believe this provision to be unconstitutional. In this world where insurance costs for New York development are through the roof, or strict liability should cause any developer to look over their shoulder, anything that further drives up development costs, in my opinion, is going to kill mid to low-level development. Jobs that are under $5 million, those jobs that the big guys don’t want to do, the risk will simply be too high for the medium and smaller players. I fear that aside from the ivory towers, the buildings in NYC will be left to crumble. There will be too few willing to take the risk due to ever escalating costs. The underpinning rule is at least one portion of the bill that I believe to be unconstitutional, so if that can be attacked, perhaps they will go back to the drawing board and start again. **The impressions contained herein are the impressions and interpretations of the author based upon review of the new statutory language, synthesized with existing law; not on any updated decisional authority.
December 30, 2025
Bankruptcy
2025 WRAPPED
2025 is nearly in the books, but before we turn the page, we’re taking a step back to reflect on some overlooked lessons from the bankruptcy courts. We’ve combed through the year’s rulings and selected three cases that merit a closer look, along with practical takeaways you can apply going forward. Bankruptcy Remote Structures, In re 301 W N. Ave., LLC, 666 B.R. 583 (Bankr. N.D. Ill. 2025) 301 W North Avenue, LLC is a Delaware limited liability company. Its primary asset is a mixed-use real estate development known as the North Park Pointe Apartments, located at 301 West North Avenue in Chicago, Illinois (“301 West North Property”). The debtor borrowed $26 million secured by the 301 West North Property. The lender required the debtor to be a bankruptcy-remote entity and to have an independent director. The independent director was sourced through CT Corporation Staffing, Inc. (“CTCS”). As part of the financing, the debtor entered into a limited liability company agreement (the “LLC Agreement”) and appointed the independent manager identified by CTCS. The LLC Agreement governed the duties of the managers and the actions requiring the manager’s consent, including the filing of a bankruptcy petition. 301 W. North Avenue LLC ultimately defaulted on the loan and filed for bankruptcy without the consent of an independent manager. The debtor asserted that the consent was not necessary because lender-mandated terms imposed constituted provisions eliminating its right to file bankruptcy, and as such, violated public policy and unenforceable. In its analysis of whether the filing was properly authorized, the Court ruled that the LLC Agreement and appointment of the independent director were enforceable. In 301 W North Avenue, the debtor’s LLC agreement required unanimous consent of the managers, including the independent manager, to file for bankruptcy. The independent manager was neither consulted nor consented. The court dismissed the case: no authority, no case. At the same time, the court distinguished disfavored “golden share” vetoes held by creditors, considered void as against public policy, from fiduciary-based consent structures, which are enforceable when drafted to protect the entity and its stakeholders — not just the lender. Takeaway: If a lender has the right to appoint an independent director for a limited liability company, and the operating agreement creates a structure in which a director’s fiduciary duties are respected and that complies with applicable statutes, the agreement is enforceable. Treatment of SAFEs In Bankruptcy Proceedings, In re Rhodium Encore, 2025 WL 2501132 (Bkrtcy.S.D.Tex.) SAFEs (Simple Agreement for Future Equity) are financial instruments commonly used in startup financing as an alternative to convertible notes. In a first reported decision, the Bankruptcy Court for the Southern District of Texas found that SAFE notes in that case gave their holders not a mere equity interest but a contingent claim, and they could recover ahead of common stockholders. The Court emphasized that the contractual language mandated this outcome and followed Delaware’s objective theory of contracts, i.e., a contract's construction should be that which an objective, reasonable third party would understand. The SAFEs were not shares of stock but contracts that required the company to return the purchase price received from SAFE holders upon certain triggering events. This right to payment contingent on future events fits the Bankruptcy Code definition of a “claim” under 11 U.S.C. § 101(5)(A). The notes also explicitly created a liquidation priority for cash-out amounts. The relevant provision stated that the cash-out amount was junior to creditor claims but senior to common stock. Takeaway: If your SAFE has cash out on dissolution/liquidity, you likely hold a contingent claim that ranks ahead of common but behind creditors. When drafting a SAFE note, if the economic deal is equity-only risk, remove cash-out rights, or subordinate expressly to common; if investor protection is essential, state the cash-out priority unambiguously and ensure charter and cap table modeling reflect it. SPAC Redemptions, In re Indus. Hum. Cap., Inc., No. 23-11014-LMI, 2025 WL 3534176, at *1 (Bankr. S.D. Fla. Dec. 9, 2025) The court addressed whether funds held in a SPAC trust account were property of the bankruptcy estate. Industrial Human Capital (“IHC”), a SPAC[1], raised $116.7 million in its IPO and deposited the proceeds into a trust account managed by Continental Stock Transfer & Trust Company (“CSTTC”) under a Trust Agreement. The Trust Agreement provided for CSTTC to manage, supervise, and administer the Trust Account. Although the parties to the Trust Agreement are IHC andCSTTC, the named beneficiaries of the Trust Agreement are IHC and the purchasers of the shares issued through the IPO, identified as the “Public Stockholders.” IHC did not find suitable acquisition targets, and investors asked for redemption, which the company made. Against the advice of counsel that payment to creditors should be made first, IHC CEO authorized CSTTC to release the funds to investors. Then, creditors put the company in an involuntary Chapter 7 proceeding, and a trustee was appointed. The trustee filed lawsuits to claw back the payments. Although the agreement named the public stockholders as beneficiaries, the court emphasized that the funds originated from the sale of IHC’s stock and were therefore property of IHC and, upon bankruptcy, property of the estate. The investors’ argument that the funds were held in trust for their benefit was rejected because the trust did not alter the fundamental nature of the funds as proceeds of stock sales belonging to the debtor. Takeaway: SPAC trust funds remain property of the debtor’s estate in bankruptcy, even if held in a trust account for redemption purposes. The existence of a trust agreement and redemption rights does not override the fact that IPO proceeds are corporate assets. Investors should understand that redemption rights do not insulate funds from clawback or estate claims in insolvency proceedings. [1] As the Court explained, a SPAC, also known as a blank check company, is a company that is formed for the sole purpose of acquiring, usually through merger, another company. In addition to funds contributed to fund the cost of forming the SPAC, the SPAC then raises funds from investors, which are placed in trust until the target is identified. Generally, there is a time limit to find the target; after the expiration of that time, the funds are subject to return by the original investors.
December 30, 2025
Estates and Trusts
Five Big Estate Planning Mistakes — and Why You Should Act Now
Each year, I revisit the most common estate planning missteps I see in my practice. These mistakes cost families time, money, and peace of mind. If you’ve been putting off your plan, consider this your annual nudge to take action. Tomorrow is never guaranteed; start today. #5 - Inequity Trying to treat everyone ‘equally’ can be just as problematic as treating loved ones differently because you think they don’t need (or, perhaps, don’t deserve?) anything. Maybe you’ve given more to one child already and plan to ‘balance things’ later. Unless you’re prepared to include a detailed accounting (and even then), think twice. The same goes for naming fiduciaries (executor, trustee, attorney-in-fact) based on perceived fairness. Choose the right person for the job, not the one who ‘should’ do it (for instance, because they’re the oldest.) And please, resist naming your only two kids as co-fiduciaries without a clear tie-breaker. Two decision-makers with no way to resolve a deadlock means one thing: court intervention. If you insist on co-equals, at least give them a mechanism to break ties (best two out of three coin flips, anyone? Rock, paper, scissors, perhaps?). #4 - Sentimentality Assuming you know what your loved ones will want, or won’t want, is a recipe for conflict. People rarely talk openly about what matters to them, and even if they say, ‘I don’t want anything,’ that may not be the whole truth. Style, space, and timing all play a role. Over-communicate rather than under-communicate. Force the conversation, even if it’s uncomfortable. It beats leaving behind a family feud over misperceived intentions. #3 - Communication Failing to involve all beneficiaries (even minimally) is a major mistake. You don’t need to give everyone a vote, but you should let them know a plan exists and where to find it. You might even consider a couple options to help arm against an undue influence claim later. Tell everyone if/when you change the plan (not just the person caring for you who you come to believe now deserves something more). Here’s one I’ve not yet seen tried: give everyone a copy and include a provision that says you conditionally give up the right to change your will and that no future changes shall be effective unless you communicate them yourself to all of your beneficiaries along with a copy of the new document(s). Confirm with those who will have roles: executor, trustee, guardian. They may not want or be able to serve. And always name backups (and backups to backups). A little foresight here prevents a lot of chaos later. #2 - Indecision Changing your plan isn’t wrong, but timing matters. Last-minute changes—especially near death or after cognitive decline—invite litigation and resentment. If you revise, communicate clearly and broadly. Unexplained changes breed hostility, even among those who benefit. Transparency is your best defense against family discord. #1 - Inertia The biggest mistake? Doing nothing. As Harvey Mackay famously said: “Failing to plan is planning to fail.” Not creating a will or other directives means you’ve chosen the default: a costly, time-consuming mess for your loved ones. Don’t let intestacy dictate your legacy. Make a plan and execute. Do it now.
December 30, 2025
Immigration Law
The Gold Card Gamble: High Stakes for U.S. Residency
The United States Citizenship and Immigration Service has released the brand-new form I-140G – the Immigrant Petition for the Gold Card Program. This form can be used by applicants who have previously registered on www.trumpcard.gov. The form also requires a $15,000 filing fee per applicant. The USCIS also explains the “gift” requirement for the filing. Individuals filing an I-140G must provide a gift of $1 million per applicant. The per-person rule is a significant increase in the program’s anticipated costs since its initial inception. While more details of the process have emerged, significant questions and concerns regarding the program remain. What We Know About the Gold Card The Gold Card offers a $1 million payment to the United States in exchange for legal permanent residence. The 24-page I-140G form lays out the process for potential Gold Card applicants, including biographic information and the usual attestations regarding potential grounds of inadmissibility. The form includes entirely new sections on the applicant’s source of funds and net worth. The source-of-funds instructions lack the complexity of EB-5 applications and are likely to be subjected to additional screening. Further, the form includes a section for corporations to complete if they are the sponsoring entity. Lastly, the G140 form requires a potential recipient to indicate if they are seeking an immigrant visa under one of two categories: the first preference alien of extraordinary ability, or the second preference alien of exceptional ability seeking a National Interest Waiver (NIW). This path was outlined early as the proposed mechanism for gold card applications to be counted with annual immigrant visa limitations imposed by the Immigration and Nationality Act. The form and its instructions state that the entire process will be completed online with biometrics required for all applicants, even if abroad. What We Don’t Know While a form is now available, details are still lacking. Vague instructions regarding filing the case online after paying the substantial filing fee are provided, with no evidence that the online portal at MyUSCIS can actually process the cases. No timelines or processing details are provided. The Department of Homeland Security has indicated that proposed rulemaking for the employment-based immigrant petitions is scheduled for early 2026. It is possible that clarity and the creation of the regulatory framework for the gold card will be included. Significant questions remain regarding the actual program. For example, is the program authorized under the Immigration and Nationality Act? That question is still up in the air. There are some major issues with the current proposed format, as the Executive order that created the program differs from the application process as described. In addition, the authority of the USCIS to create programs is limited by its mandate from Congress. This means that, without a change in the law (not regulation) new programs cannot be created that materially impinge on existing programs such as the EB-5 investment visa. Given the major questions relating to the legal underpinning of the program, as well as the technical details of its processing, any potential applicant should consider whether to proceed very carefully. For example the stated “nonrefundable” filing fee of $15,000 per applicant would be at risk, should the program be found in violation of the will of Congress, not to mention the gifted funds should an applicant progress that far. The examination of the potential risk for loss here is critical, especially when compared to existing programs such as the EB-5 investment visa, which also involves risks but provides for a repayment of investment funds to the intending immigrant.
December 23, 2025
Labor and Employment
The Amazon v. PERB Decision: Reaffirming Federal Supremacy in Labor Law
The November 26, 2025, preliminary injunction issued by Judge Eric R. Komitee of the U.S. District Court for the Eastern District of New York in Amazon Services v. New York State Public Employment Relations Board represents a critical reaffirmation of federal preemption doctrine in American labor law. The decision found that amendments to the New York State Employment Relations Act (SERA) are preempted under the Supreme Court's holding in San Diego Building Trades Council v. Garmon. The Constitutional Context At the heart of this dispute lies a fundamental question about the structure of American governance: when a federal agency faces operational paralysis, can states step in to fill the regulatory void? New York's September 2025 amendments to SERA attempted to do precisely that, granting the state's Public Employment Relations Board (PERB) jurisdiction over private-sector labor disputes traditionally handled by the National Labor Relations Board (NLRB). The legislation emerged from a genuine governance crisis — following President Trump's removal of Board Member Gwynne Wilcox, the NLRB was left without the quorum necessary to issue decisions on union representation petitions or unfair labor practice charges. Governor Kathy Hochul signed the amendments as a stopgap measure, arguing they were necessary to protect workers' rights during federal dysfunction. The law would have allowed PERB to exercise NLRB powers unless and until the federal board obtained a court order establishing jurisdiction — effectively reversing the presumption of federal authority that has governed labor relations for decades. The Garmon Doctrine: A Pillar of Labor Law Judge Komitee's decision rested heavily on the doctrine established in the Supreme Court's 1959 Garmon decision, which holds that when an activity is even arguably subject to the National Labor Relations Act, states must defer to the NLRB's exclusive competence. This principle reflects a deliberate congressional design: to create uniform national labor policy administered by an expert federal agency rather than allowing potentially conflicting state regulations. The Garmon preemption doctrine applies not only when the NLRB has actively asserted jurisdiction, but also when the board has declined to exercise its authority. This breadth serves a critical purpose — preventing the very jurisdictional conflicts and regulatory uncertainty that New York's law threatened to create. As the court emphasized, states cannot regulate labor activities simply because the federal agency is temporarily unable to act. The Court's Rejection of "Unique Circumstances" New York and the Amazon Labor Union advanced a novel argument: that the unprecedented circumstances of the NLRB's lack of a quorum, combined with the constitutional challenge to board members' removal protections, justified an exception to traditional preemption principles. The district court firmly rejected this position, holding that temporary federal dysfunction cannot justify state legislation that directly contradicts Supreme Court precedent. This rejection is significant for several reasons. First, it establishes that preemption is not contingent on federal capacity but on federal authority. The NLRA remains the supreme law governing private-sector labor relations regardless of whether the NLRB can currently adjudicate cases. Second, it prevents states from using administrative or political crises as opportunities to expand their regulatory reach into areas Congress has reserved for federal control. Third, it maintains the principle that doctrinal exceptions must come from the Supreme Court, not from state legislatures responding to expedient circumstances. Implications for American Federalism The Amazon decision arrived at a moment when multiple states — including California, New Jersey, and Massachusetts — have proposed or enacted similar legislation attempting to fill the NLRB's vacuum. Judge Komitee's opinion serves as a warning shot to these efforts, reasserting the primacy of federal labor law even during periods of federal incapacity. While states traditionally possess broad police powers to protect workers' health and safety, labor relations have long been recognized as requiring national uniformity. The New York court's decision reinforces the principle that constitutional preemption doctrines are not suspended during administrative crises, however genuine those crises may be. Practical Consequences For employers like Amazon, the injunction prevents the nightmare scenario of navigating conflicting state and federal labor systems. Without the injunction, companies operating across multiple states could face dramatically different legal frameworks for identical conduct, undermining the uniformity that the NLRA was designed to achieve. For workers and unions, the decision is more complicated. It removes a potential avenue for expedited resolution of labor disputes at a time when the NLRB remains effectively paralyzed. Looking Forward The Amazon decision is unlikely to be the final word. New York will likely appeal to the Second Circuit, where the case could produce important appellate guidance on the application of preemption doctrine in contexts of federal administrative failure. Moreover, the underlying constitutional questions about NLRB members' removal protections remain pending before the Supreme Court, and their resolution could reshape the landscape that produced this controversy. Conclusion Judge Komitee's ruling in Amazon Services v. New York State Public Employment Relations Board is important because it reaffirms principles of federal preemption at a moment when those principles faced their most serious state-level challenge in decades. The decision prioritizes constitutional structure and legal consistency over pragmatic problem-solving, holding that even genuine governance crises cannot justify state encroachment into areas of exclusive federal jurisdiction. For labor law specifically, the decision maintains the NLRA's primacy and the Garmon doctrine's vigor, ensuring that private-sector labor relations remain governed by uniform national standards rather than fragmenting into state-by-state variations The decision leaves unresolved the deeper problem it illuminates: what happens when the federal government's institutional mechanisms fail, yet constitutional doctrine prohibits states from filling the void? This question extends beyond labor law to implicate numerous regulatory domains where federal preemption is broad but federal capacity is fragile. Judge Komitee's opinion answers the legal question decisively, but the practical and political challenges it exposes will likely persist long after this litigation concludes.
December 19, 2025
Business
USPS Postmark Changes Could Impact Tax Filing Deadlines
A couple of years ago, I wrote a blog about the importance of sending any correspondence to the Internal Revenue Service via Registered or Certified Mail or by an approved overnight courier, rather than relying solely on the regular USPS First-Class postmark to determine timely mailing. I like to know the IRS receives what I send. On more than a few occasions, the IRS loses mail, and the only evidence of receipt is the return receipt or proof of delivery. Recently, the USPS announced an upcoming change to its postmark date system, effective December 24, 2025. This change makes it even more critical that taxpayers and their representatives use Registered or Certified mail, or an approved overnight courier, when filing a federal tax return. Here is why this change matters. “Postmarks are generally applied by the Postal Service via automation on machines in originating processing facilities but may also be applied manually by Postal Service personnel at those facilities, or by a Postal Service employee at a retail unit when a customer presents a mailpiece at a retail counter and requests a postmark.” FR Doc. 2025-20740. Under the USPS’s current system, the postmark reflects the date the mail is given to the USPS, i.e., handed to a USPS employee at a USPS counter or placed in an official USPS mailbox. Under IRC § 7502, a return is considered timely filed if it is postmarked on or before the due date of the return. For example, in 2025, the filing deadline for an individual taxpayer who did not request an automatic extension was April 15, 2025. Under the USPS’s current system, if the taxpayer mailed the return on April 15, 2025 by depositing the return, with sufficient postage, in an official USPS mailbox prior to the last mail pickup posted on the USPS mailbox, the return would have been postmarked April 15, 2025. It would be considered timely filed even if the return was not received by the IRS until days or weeks later. However, under the soon to be implemented USPS change, a machine-applied postmark indicates the date of the "first automated processing operation" at a processing facility, which may be later than the date the mail was dropped off, which could happen anytime but particularly during periods of high volume, i.e., April 15 (March 15 for calendar year tax year corporate and partnership taxpayers). With this change, even if the return were deposited into a USPS official mailbox, the return may not be postmarked with the official USPS postmark until after the filing deadline when the return was processed in a processing facility. Still, because most postmarks are applied at processing facilities, the postmark does not represent either the place or date on which the USPS first accepted possession of the mailed return. This means the return would not be considered timely filed, and failure to file penalties and interest would be assessed by the IRS. With this USPS change, an ounce of prevention is worth more than a pound of cure. Mail returns, Register or Certified mail, and get a hand-cancelled receipt, or use an approved overnight courier with an approved level of service. And just in case you were wondering, the postmark on the office postage machine is never sufficient. The views expressed herein are solely those of the author, are not intended as, and do not constitute legal or tax advice.
December 18, 2025
Labor and Employment
Union Types Explained: How They Impact Employer Strategy
When employers receive notice that employees have filed a petition with the National Labor Relations Board (NLRB) to unionize, one question becomes immediately important: What type of union are we dealing with? Employees might be joining a well-established, nationally affiliated union such as the Communication Workers of America or the International Brotherhood of Teamsters. Or, as has been the trend in recent years, they could affiliate with an independent union of their own creation. The answer can shape negotiation strategy, resource planning, and long‑term labor relations management. Understanding the Two Models Well-established, national unions provide robust infrastructure support: assistance with election procedures, contract negotiation expertise, legal representation, strike funds, and training programs. These organizations bring decades of collective bargaining experience and established relationships with labor attorneys. Independent unions, by contrast, operate with greater autonomy. Examples such as the Amazon Labor Union – prior to its affiliation with the Teamsters – demonstrate how workers maintain more direct control over internal operations and strategic decisions. Members avoid contributing high percentages of their dues to national overhead costs, keeping resources concentrated at the local level. At the bargaining table, both union types pursue the same fundamental goal: negotiating over wages, benefits, and working conditions. Key Differences that Impact Employers Once employees vote to unionize, the process moves into collective bargaining, and national and independent unions bring different expertise and resources to this process. National unions bring professional negotiators with extensive experience and established bargaining strategies. Employers face well-prepared adversaries but ones that may be more predictable. Independent unions may initially lack professional negotiating experience, leading to longer, more unpredictable sessions, but they may be more flexible and creative when responding to employer proposals during negotiations. In addition, more established unions may provide strike funds, legal support, and public relations resources that enable sustained labor disputes. On the other hand, independent unions operate with limited resources but often generate strong member commitment and community support that resonates locally. A third key difference is that national unions feature formal procedures and hierarchical structures, offering employers clear points of contact but potentially resulting in bureaucratic delays. Independent unions often use direct democracy, facilitating faster problem-solving but potentially complicating negotiations when leadership must repeatedly seek membership approval. Whether facing a well-established, national union with decades of experience or an independent union born from your workplace, success requires thorough preparation, legal compliance, and commitment to constructive dialogue.
December 18, 2025
Landlord Representation
December’s Enduring Legacy: From Emancipation to Equitable Housing
Every December, we are encouraged to reflect on a defining milestone in American constitutional and civil rights history – the ratification of the 13th Amendment on December 6, 1865. This amendment abolished involuntary servitude, legally closing the door on an era of slavery in which entire communities were denied autonomy, dignity, and the most basic conditions of safety and freedom. However, the abolition of slavery did not guarantee equal access to shelter, property, or equitable protections in the marketplace. Those rights have been shaped over more than a century of legislation, advocacy, and heated litigation. For those in the multifamily housing industry — owners, operators, managers, and developers — December offers a historical reminder and a practical moment to reexamine how this legacy informs modern-day obligations under the Fair Housing Act (FHA). Understanding how far the law has evolved helps us understand why compliance is not simply a regulatory matter, but a continuation of a long and unfinished civil rights effort. A Brief History of Post-Emancipation Housing Exclusion Following formal emancipation, formerly enslaved people faced numerous additional hurdles. Although slavery was now outlawed, discriminatory practices (e.g., Black Codes, Jim Crow segregation, sharecropping systems, and violence) denied African Americans safe, stable, and equitable access to housing. In the decades that followed, local and federal policies entrenched segregation across society. Racially restrictive covenants, exclusionary zoning, government-backed redlining, and federal underwriting systematically barred Black families and other minorities from homeownership, quality rental housing, and opportunities for wealth accumulation. Many of these policies persisted well into the 20th century, long after they were socially discredited and, ultimately, legally banned. The Fair Housing Act exists because of this legacy. Housing professionals now operate within a framework designed to dismantle prior patterns of subversive discrimination. A Turning Point: The Fair Housing Act The Fair Housing Act was enacted in April 1968, amid national mourning following the assassination of Dr. Martin Luther King Jr. Its passage marked a watershed moment — explicit recognition that discrimination in housing perpetuated systemic inequality and necessitated federal intervention. The Act prohibits discrimination in any housing-related transaction, including any action or inaction taken related to renting or selling housing, based on: Race Color National Origin Religion Sex (including gender identity and sexual orientation) Familial Status Disability Despite this landmark law, the housing marketplace shifted from overt exclusion to more subtle practices. Instead of engaging in explicit acts of discrimination based on the protected classes above, facially neutral policies were implemented that had either the intended or unintended effect of discriminating against people based on their protected class. Regulations, case law, and HUD guidance have continued to evolve in the years since the passage of the Fair Housing Act in response to modern iterations of discrimination that past lawmakers did not foresee. For example, the Fair Housing Amendments Act of 1988 was enacted in response to some of these changes. Further, HUD’s guidance has since incorporated “disparate treatment” and “disparate impact” in its definition of unlawful discrimination in housing. Disparate treatment is an overt or explicit policy that dictates different terms, conditions, or services to someone because of their protected class. This is often the most obvious form of discrimination, because the policy on its face is discriminatory. On the other hand, disparate impact discrimination involves a seemingly neutral policy that has the unintended (or perhaps subliminally intended) effect of discriminating against a particular protected class because they are the ones most likely (or solely) to be negatively affected by the policy. Examples of disparate impact discrimination may include: criminal record screenings, credit screenings for victims of domestic violence, zoning barriers to supportive housing, disregarding disability accommodations, predatory marketing, or algorithmic rental determinations. Notably, in late 2025, HUD announced that it intends to cease all enforcement of disparate impact claims and focus solely on disparate treatment complaints. This could drastically shift the fair housing enforcement landscape and have unexpected repercussions for multifamily regulatory compliance. In sum, this is why the housing industry’s compliance obligations are dynamic and constantly changing. What Multifamily Professionals Can Learn From This Legacy Compliance Requires Adaptability & Intuition Discrimination does not have to be intentional to be illegal. A legally compliant and otherwise neutral policy can still have a discriminatory impact. Courts continue to scrutinize how tenant screening, occupancy limits, advertising strategies, and property safety policies may disproportionately harm certain protected classes. Owners and managers of multifamily properties should conduct annual disparate-impact audits and seek counsel if a policy is having biased results on a particular demographic. Accessibility Is a Civil Rights Issue Since the Fair Housing Amendments Act of 1988, multifamily developers have been required to incorporate basic design and construction accessibility features. Increasingly, litigation and DOJ enforcement are focused on persistent non-compliance. Moreover, discrimination complaints based on “disability” status or failure to grant a reasonable accommodation continue to be the most prevalent, accounting for more than 50% of the complaints filed each year. Treat accessibility as a civil rights mandate, not a line-item cost. Stay Attuned to Evolving Protected Classes Recent interpretations make clear that sexual orientation, gender identity, and gender expression fall under the Fair Housing Act’s sex-based protections. Some state and local jurisdictions have codified these expressions into articulated protected classes. HUD’s enforcement priorities continue to expand as courts interpret the Fair Housing Act in light of broader civil rights movements. From the housing provider’s perspective, it’s clear that a broader interpretation of protected characteristics is the safer option. Risk Management & Reputation: Algorithms and AI Tools Are the New Frontier Automated tenant-screening products and digital advertising platforms may unintentionally replicate historical biases — repeating old patterns of exclusion with new technology. Owners should demand transparency from screening vendors and ensure human review before any adverse decision is issued, particularly given HUD’s guidance on criminal record screening and the push for an individualized assessment of a person’s criminal history. Investors and insurers increasingly view fair housing compliance as a key component of responsible operations. Violations, even for inadvertent screening errors, carry not only civil penalties but also reputational harm. In an increasingly competitive market, with a push for more transparency, eyes are on housing providers. Honoring December’s Legacy Through Fair Housing Leadership The abolition of slavery was the beginning of a transition toward civil rights, and the Fair Housing Act remains one of the strongest tools we have to dismantle the residual discriminatory structures that followed emancipation. For the multifamily housing industry, compliance is more than adherence to a regulatory framework — it is stewardship of the idea that housing should be safe, accessible, and free from discrimination for every person, regardless of their background. This December, as we reflect on our nation’s journey from emancipation to the present, the work is not finished. Each applicant screening decision, each accommodation request, each accessibility plan, and each interaction with a resident or prospect is part of our ongoing civil rights legacy.
December 17, 2025
Labor and Employment
Holiday Parties Without Headaches: Handling Complaints with Care
The annual holiday party is meant to lift spirits, reward employees, and create a sense of connection as the year draws to a close. It is often one of the few opportunities for your team to relax together outside the workplace. Yet the same relaxed atmosphere can also lead to missteps. When an employee later reports harassment arising from the event, an employer suddenly faces a complex combination of legal obligations, workplace culture concerns, and employee relations challenges. I regularly help organizations navigate these situations. How you respond in the hours and days after receiving a report matters greatly. With the right approach, you can address the issue responsibly, protect all parties involved, and strengthen trust within your workforce. Responding When an Employee Comes Forward When an employee reports harassment related to a company event, the first and most important step is to acknowledge the complaint and ensure the employee feels heard. Even though the behavior occurred outside the office, the legal analysis does not change when the event is employer-sponsored or reasonably connected to work. Your obligations under federal, state, and local anti-harassment laws still apply. Begin by gathering the essential facts: what occurred, who was involved, where the incident took place, and whether any witnesses or relevant communications exist. Holiday events often generate photographs, videos, or social-media posts that may become significant pieces of evidence. Preserve anything that may be relevant as early as possible. Once you have the initial information, move promptly to an impartial investigation. A trained internal investigator or outside counsel can do this. The key is neutrality: no one involved in the investigation should have a personal connection to the individuals involved, and the process should follow the same procedures you would use for any other workplace complaint. While the investigation is ongoing, consider whether temporary steps are necessary to prevent retaliation or further interaction between the individuals involved. These measures need not imply wrongdoing; they are simply safeguards while the facts are being gathered. At the conclusion of the investigation, determine whether your policies were violated and identify appropriate corrective actions. Communicate the findings to the individuals involved in a way that preserves confidentiality while assuring them that the matter was taken seriously. Finally, check in with the reporting employee afterward to ensure that no subtle form of retaliation has occurred, whether through scheduling changes, exclusion from meetings, or other shifts in workplace dynamics. Why Holiday Parties Create Unique Risks Although holiday gatherings feel informal and festive, the legal standards governing workplace conduct do not disappear at the door of the venue. When the employer organizes, sponsors, or encourages attendance at an event, it is generally considered an extension of the workplace. Alcohol service, dimmer social boundaries, and a sense of celebration can cloud judgment and create opportunities for conduct that someone later perceives as inappropriate, unwelcome, or intimidating. Employers also sometimes assume that what happens after official party hours is beyond their responsibility. But if employees continue the celebration in a way that directly follows the company event, the conduct may still be viewed as connected to the workplace. Understanding this continuum is essential when assessing what occurred and how to address it. A consistent theme in my work with clients is that risk increases when boundaries are unclear: unlimited drinks, a lack of visible leadership presence, or an atmosphere that drifts too far from the professional culture you maintain during the workday. When employees are unsure where the lines are, the potential for misunderstanding increases. Creating a Celebration That Reflects Your Values Most employers do not want to cancel holiday events, and they shouldn’t. With thoughtful planning, these gatherings can remain enjoyable while aligning with your legal obligations and your organizational culture. The most effective preparation begins before the party. Communicate expectations clearly but respectfully. A simple reminder that all workplace policies still apply, including those on harassment, professionalism, and retaliation, sets the tone without dampening spirits. Consider the format of the event and whether the venue, timing, and availability of alcohol reflects the environment you want to create. Provide non-alcoholic options, ensure food is available, and, if alcohol is served, rely on trained bartenders rather than self-serve. Managers play a crucial role. A brief refresher on their responsibilities can make a substantial difference. They set the tone and often serve as the first point of contact if an issue arises. Their visible, engaged presence communicates that the organization values both celebration and safety. After the event, a short message thanking employees for attending and reminding them that any concerns can be reported without fear of retaliation further reinforces your culture of respect. When a Report Occurs: The Guiding Principles If you receive a complaint related to the party, approach it with the same care you would apply to any workplace concern. Ask whether the event was employer-sponsored, what evidence may exist, how quickly the complaint was made, and whether any safety or interim measures are needed. Consistency and fairness are essential. So is prompt action. Delays can undermine credibility and may create legal exposure. When handled well, the response to a complaint not only addresses the immediate issue but also strengthens the organization’s culture. Employees notice when leadership acts thoughtfully and with integrity. That trust is valuable long after the holiday season ends. A well-planned holiday party can bring your team together in meaningful ways. With clear expectations, attentive leadership, and a willingness to act quickly when concerns arise, employers can enjoy the benefits of these celebrations without creating unnecessary risk.
December 17, 2025
Real Estate
Business Legal Maintenance: What to Review Before January
As the year comes to a close and businesses prepare to wrap up 2025, there’s one critical task that should not be overlooked — a comprehensive legal check-up. Just as we schedule annual physicals to safeguard our personal health, your business deserves the same level of care. Whether this year was highly productive or presented challenges, it’s essential to keep your finger on the pulse of your operations and potential liabilities. If your business didn’t meet expectations, a thorough check-up is even more critical—sometimes the insights we least want to hear are the ones that help us move forward. Below are several key legal areas to review as you head into the new year. Assessing these items will help you determine whether it’s time to consult your business attorney. Business Structure and Governing Documents Whether your business is an LLC, a partnership, or a corporation, its structure is controlled by state law. Operating agreements, partnership agreements, and bylaws are the foundational documents every business should have in place. Take a look, do you have one? If not, it is certainly time to discuss this with an attorney. If you do, read through the pages to review key terms. Make sure you understand them and that they continue to be accurate. The terms that are most likely to change are as follows: Are all current members/owners listed on the schedule of owners or in the document? Has the purpose of the company shifted/changed since it was originally formed? Are the capital accounts property reflected? (you should consult your attorney or accountant on this one) If you have two or more members/owners, do you have a Buy-Sell Agreement. You should. Are the roles and responsibilities of the members/owners clearly defined? Trademarks and Patent Work If you want to secure your business name and reputation, you will likely want to file for trademarks at some point. The same holds true if this has been a growth year or a rebranding year. For those of you who are working in any field where you routinely develop something, you may want to seek the assistance of a patent attorney. Patent attorneys help protect your inventions, source codes, and processes from competitors. Licensing and Regulations When are your licenses up for renewal? Have any laws or regulations changed in how you get those renewals? Take a quick look and create a system to make sure you never miss a deadline for registrations, which can throw a huge wrench in your business effectiveness. Website Does your website need updating? How does it hold up to privacy laws? Several states have privacy laws regarding what information you can collect, or at least how you can collect it. A well-written privacy policy can alleviate many of these concerns. Legal Forms and Contracts Do you routinely use standard forms or contracts to conduct your business? You should review them to ensure these documents address all your needs and legal updates. The best way to avoid a lawsuit is to have a robust documentation system. Employee Agreements, Handbooks, and Non-competes Review your company’s source documents, i.e., handbooks, employee contracts, and non-competes, to ensure they still address your needs. Note: If you do not have these documents, contact an attorney. Review your employee files to ensure they are complete. Does each employee have a signed receipt for the employee handbook? Does each employee for whom it is applicable have a signed non-compete and/or non-solicitation agreement? Do you have I-9’s and other required documentation for each employee? Legal and Pseudo-Legal Matters Insurance: Do you have it? Do you have all the correct coverages? You should also review your lease(s) and/or mortgages to make sure your insurance coverages match the requirements of those documents. This yearly business legal checkup is not exhaustive. These are some easily identifiable legal issues that typically require review and updates from year to year. There are numerous other legal topics that should be discussed with your business attorney regularly to ensure your business is well-protected. Cheers to a profitable, productive, and healthy 2026.
December 16, 2025
Estates and Trusts
Holiday Harmony for the Sandwich Generation: Boundaries, Delegation, and Self-Care
The holidays arrive each year with that familiar blend of anticipation, nostalgia, and — if we are being honest — a fair amount of anxiety. For members of the Sandwich Generation, that pressure can feel magnified. You are balancing end-of-year school events, office deadlines, holiday parties, travel plans, gift lists, and meal planning while simultaneously managing the medical appointments, emotional needs, and household logistics of aging parents. The season that promises joy often demands more than anyone can give. In the middle of it all, I, like most people, find myself longing for the simpler holidays of childhood, when someone else did the worrying. Yet here we are, stuck in the middle, holding together the needs of multiple generations. If this is your role, you are not failing when it feels overwhelming. You are doing complex emotional and logistical work, and the holidays simply spotlight that reality. This is precisely why remembering three core principles — boundaries, delegation, and self-care — is not just helpful, but essential. These are not indulgences or luxuries, they are survival skills. Boundary-Setting: A Gift to Yourself and Everyone Else The holidays tend to activate our instinct to say “yes”: yes to hosting, yes to attending, yes to keeping every tradition alive. Sandwich Generation members feel even more pressure during the holiday season, as they often operate with already limited bandwidth. Without firm and healthy boundaries, the season can shift quickly from meaningful to unmanageable. Setting boundaries does not make you less generous or less committed to your family; it can mean the difference between sustainable and not. When you clearly identify what you can realistically handle — whether that means declining to host this year, catering instead of cooking, limiting travel, or being upfront about needing to leave an event early — you are honoring your own humanity and limitations. Boundaries also spare your loved ones the silent resentment, not-so-silent commentary, or exhaustion that builds when you push beyond your limits. If set up properly, boundaries can actually improve relationships: they create predictability, reduce friction, and allow you to remain emotionally present. Saying “no” or “not this year” is not a rejection of a person or tradition; it is an act of respect for your energy, your time, and your wellbeing. Delegation: Letting Others Step Into Their Roles Many Sandwich Generation caregivers take pride in being the one who manages everything. This “can do” attitude is essential on many days and certainly comes from a good place. Trying to do all things generally reflects a desire to protect, shepherd, and smooth the path for those who rely on you. But during the holidays, the instinct to take on everything can often become unsustainable. Delegation becomes not merely practical, but vital. And despite what many fear, delegation is not a sign that you are incapable or weak. It is a sign that you recognize the importance of shared responsibility. Whether it means asking siblings to manage a parent’s appointment, inviting older children to take over part of the holiday meal, hiring someone to help with errands, or letting a friend wrap gifts, delegation strengthens your support system. Almost equally important, delegation also allows others to feel invested and helpful: family members and friends often want to contribute but simply do not know how. When you provide concrete tasks, you offer them a pathway to meaningful participation. You are also creating space for your own rest, which ultimately benefits everyone around you. Self-Care: The Foundation That Holds It All Together Pop culture often portrays self-care during the holidays as lighting a candle as you sink into a beautifully drawn bath larger than a bedroom or escaping to a snowy holiday getaway in a picturesque New England village. And while these images reflect the perfect picture, true self-care for the Sandwich Generation often runs deeper and less ideal. Images of self-care instead should be reframed to reclaim the internal resources the season tends to drain. Self-care can be simple: scheduling a quiet hour early in the morning before anyone else wakes up, maintaining your own medical appointments rather than postponing them to accommodate others, stepping outside for a walk, closing your office door for an hour, and giving yourself permission not to attend every gathering. Most importantly, self-care is not something you earn only when everything else is done. It is a non-negotiable part of ensuring you can keep caring for the people who depend on you. Neglecting yourself does not make you more devoted; it makes you depleted. When you protect your own emotional and physical well-being, you are building the resilience the holidays demand and ensuring that you can keep going when the holiday chaos is over. Finding Your Own Pace in a Season of Expectations Being a member of the Sandwich Generation during the holidays means carrying the weight of competing needs — your desire to ensure a magical holiday season for your children and your parents’ needs for care and stability, all while trying to maintain your own sense of center. It is no small task. And yet, with boundaries, delegation, and self-care, you can consciously shape a season that honors both your family and yourself. This year, allow yourself to rewrite some of the holiday scripts. Create new traditions that fit the realities of your life now. Let go of unnecessary pressure and focus on presence instead of perfection. It is possible to protect your energy, share the load, and still create a meaningful season for multiple generations — without losing yourself in the process. The holidays will always be full, but they do not have to deplete you physically and emotionally. By embracing these three principles, permit yourself to experience the season with the steadiness, clarity, and compassion you deserve.
December 15, 2025
Estates and Trusts
A Future Worth Celebrating: Estate Planning for the New Year
As the holiday season approaches, families gather to reconnect, reflect, and prepare for the year ahead. For many households, it is one of the few times when adult children, aging parents, and extended family members are all in the same place. While the focus is rightfully on celebration, this period also presents a crucial opportunity to ensure one’s estate planning is current, coordinated, and capable of carrying out one’s wishes. It is not uncommon for many families to be experiencing events which are integral to estate planning, whether it is a sick family member, a loved one looking at long-term care options, or a new baby being welcomed into the family. In my practice, I routinely see how proper planning can prevent confusion, conflict, and unintended tax consequences down the line. The holidays offer a natural opportunity for clients to revisit these issues with clarity and intention. Why the Holiday Season Matters for Estate Planning Key Decision-Makers Are Under One Roof Modern families often live across multiple states or even countries. When everyone gathers during the holidays, clients have a rare chance to discuss practical considerations such as: Who is best suited to serve as executor or trustee Preferences regarding healthcare decisions and end-of-life care Expectations surrounding real estate, family businesses, or sentimental personal property These conversations can be sensitive, but addressing them proactively almost always leads to better outcomes and ensures that wishes are being fulfilled. Life Changes Frequently Go Unaddressed Over the course of a year, significant life events occur — marriages, divorces, births, deaths, home purchases, new accounts, or changes in financial circumstances. Outdated estate plans are one of the most common, and most avoidable, problems that families face. A holiday-season review helps ensure that: Wills and trusts reflect current intentions Powers of attorney and healthcare directives remain accurate Beneficiary designations on retirement accounts and insurance policies align with the overall plan Real estate titling is consistent with estate-planning goals Potential Pennsylvania inheritance-tax exposure is properly managed A Preventative Step Before the New Year Without fail, the beginning of the year brings emergencies that reveal the absence of planning: an unexpected death, a sudden medical event or accident, a property issue, or a dispute among family members. When documents are outdated — or nonexistent — families can find themselves navigating the court system without clarity or guidance. Encouraging clients to update their planning before year-end provides stability during periods of uncertainty. Key Documents Worth Reviewing Now A comprehensive year-end estate review should include: Last Will & Testament Revocable Living Trust (if applicable) Financial Power of Attorney Healthcare Power of Attorney and Living Will HIPAA Authorization Beneficiary designations Real estate deeds and titling Gifting strategies or year-end tax considerations For Pennsylvania and New Jersey residents, this is also a valuable time to confirm inheritance-tax implications and evaluate whether certain planning steps may reduce the overall tax burden for beneficiaries. Planning as an Act of Care Estate planning is ultimately a gift to one’s family. It reduces stress, minimizes uncertainty, and ensures that a lifetime of work is preserved and transferred in accordance with the client’s wishes. The holiday season when family, gratitude, and reflection are already front of mind offers a meaningful opportunity for clients to take this important step. A Thoughtful Reminder for Clients As clients focus on wrapping up the year, now is an ideal time to encourage them to: Review and update their estate-planning documents Consider whether their planning reflects current circumstances Schedule a consultation if their documents are outdated or incomplete An hour spent reviewing a plan today can prevent months (or years!) of confusion tomorrow.
December 8, 2025
Labor and Employment
Employee Handbooks: Essential Guide or Outdated Relic?
For years, employee handbooks were treated as routine onboarding documents, i.e., something handed out on a new hire’s first day and rarely revisited unless a legal issue arose. But in 2026, the pace of workplace change has rendered the “static handbook” approach obsolete. With hybrid work now firmly embedded across industries and compliance obligations multiplying at a rapid rate, the modern employee handbook has become one of the most critical tools an employer can maintain. Whether an organization views it as a cultural roadmap or a liability shield, the reality is that a well-maintained handbook is no longer optional. One of the biggest drivers behind this shift is the transformation of how and where employees work. Traditional handbooks were built around the assumption of a centralized, physical workplace. Today’s workforce operates across multiple states and time zones, and home offices, often using company systems in spaces the employer cannot control. Without clearly defined expectations (how time should be recorded, what equipment must be secured, how quickly employees should respond, and what “professionalism” looks like through a webcam), employers unintentionally create inconsistencies that can later breed miscommunication or even litigation. The hybrid model has also introduced new questions around expense reimbursement, data security, and workplace safety, all of which require written guidance to manage effectively. Legal compliance is another area where employers face mounting pressures. The last several years have brought sweeping changes in employment law at every level. From expanding privacy laws governing employee data, to new protections for caregiver status and reproductive decision-making, to the resurgence of federal scrutiny over non-competes and independent contractor classification, the regulatory landscape is complex and evolving. A handbook that has not been meaningfully updated within the last one or two years is almost certainly missing something critical, and often something required by law. Even policies that feel evergreen, such as anti-harassment or leave provisions, may be outdated if they do not reflect newer protected categories or recent state-level paid leave mandates. What many employers do not realize is that the handbook is also one of the most important documents in a dispute. Courts and agencies regularly review handbook policies to determine whether employers communicated expectations clearly and applied them consistently. When a policy is vague or outdated, employees and managers may interpret it differently, leading to discrimination claims, retaliation allegations, and wage-and-hour challenges. A modern, accurate handbook not only provides clarity to employees — it becomes a critical defense exhibit when disputes arise. The content of today’s handbooks looks very different from that of just a few years ago. Remote and hybrid work policies now need to be specific and actionable, addressing topics such as performance expectations outside the office, the use of AI-based tools, and the handling of confidential information in remote environments. Anti-harassment standards must acknowledge that misconduct can occur in virtual settings just as easily as in physical workplaces, and reporting procedures must be accessible to employees who may rarely visit a company office. Likewise, timekeeping rules must squarely address off-the-clock work and break compliance in a distributed workforce, where supervisors cannot easily observe employee activity. Technology and data privacy have also become essential components of the handbook. With the growing use of monitoring software, AI-assisted performance evaluation, and increased reliance on personal devices, employees expect transparency around what data is collected and how technology will be used. Many states now require employers to provide written disclosures regarding privacy practices. A handbook that avoids these topics leaves both employees and the organization vulnerable to confusion and legal risk. One notable shift in recent years is the move away from static paper or PDF manuals. The most effective organizations now treat their handbooks as living compliance resources: digitally housed, easily searchable, and updated regularly. Electronic acknowledgments have replaced signature pages, and some employers are even incorporating short explainer videos or interactive elements to help employees better understand complex policies. In this environment, a handbook is no longer a document that sits untouched for years; it is a dynamic framework that evolves alongside the organization and its legal obligations. The process of modernizing a handbook does not stop with rewriting policies. Employers must ensure that the document accurately reflects actual workplace practices. Courts scrutinize discrepancies between written policies and managerial behavior, and inconsistencies can undermine an employer’s defense. Training supervisors on the content of the handbook, especially policies related to leave, performance management, and remote work expectations, is just as important as updating the text itself. Multi-state employers must also account for the varying state and local laws that apply differently across their workforce, often through state-specific addenda. In many ways, the increase in complexity has reaffirmed the purpose of the employee handbook. Rather than becoming outdated, the handbook has become essential for navigating the uncertainties of the modern workplace. It provides structure in an era of evolving norms, clarity in a landscape of regulatory change, and consistency across a workforce that may never gather under one roof. Employers who update their handbooks regularly (and, ideally annually, and more often if operating in multiple states) position themselves to stay ahead of compliance risks and maintain a more informed, engaged workforce. The bottom line is simple: if your organization has not reviewed its handbook in the last 12 to 18 months, 2026 is the year to do it. A thoughtful, modernized handbook supports your culture, protects your business, and ensures that employees understand what is expected of them (no matter where they work).
December 4, 2025
Family Law
Trust Structures Under Fire: What High-Net-Worth Divorce Means for Advisers
What began as a high-asset marital dissolution between John and Laura Overdeck has transformed into a wide-ranging challenge to modern trust planning and the professionals who support it. The litigation now reaches beyond the parties’ marriage and calls into question long-held assumptions about the durability of “irrevocable” trusts—particularly when they are funded during the marriage with assistance from lawyers, trustees, or corporate personnel. Regardless of where the facts ultimately fall, the case is already functioning as a bellwether. It forces practitioners, wealth managers, and corporate stakeholders to confront a reality that has been developing quietly for years: in today’s financial landscape, trust structures and corporate entities are no longer insulated from matrimonial disputes merely because they were designed to be. Background According to the pleadings, Laura Overdeck alleges that billions in marital assets were transferred into a series of Wyoming trusts with assistance from Seward & Kissel and, allegedly, certain Two Sigma employees. Her proposed amended complaint adds claims for fraudulent conveyance, aiding and abetting breach of fiduciary duty, civil conspiracy, and professional negligence tied to what she asserts was a deliberate effort to “divorce-proof” assets. If the amendment is granted, the litigation expands dramatically. It becomes not just a battle over distribution, but a test of how far courts may go in scrutinizing complex trust structures created during the marriage. Why High-Net-Worth Divorce Has Escaped the Bounds of Matrimonial Court For decades, matrimonial courts were the default arena for resolving marital property issues. That model worked when most marital estates consisted of real estate, traditional investments, and business interests that were relatively easy to value. That world is gone. Modern high-net-worth estates are built from layered LLCs, private-equity, and hedge-fund interests, carried interest, offshore vehicles, and sophisticated donor-advised and trust networks. Matrimonial courts simply do not have the jurisdictional tools to penetrate these frameworks. The Limits of the Matrimonial Forum Matrimonial courts cannot: compel discovery from non-party trustees, law firms, or corporate insiders adjudicate claims for professional negligence or fraud award damages against third parties unwind complex asset-protection strategies Their jurisdiction is confined to the spouses and the property they can see. The Turn to Parallel Civil and Trust Litigation Ultra-wealthy spouses increasingly turn to civil courts because they offer: extensive document discovery depositions of advisers and corporate personnel forensic transfer analysis fraud-based claims are unavailable in matrimonial court access to internal corporate records and communications Civil litigation becomes the pressure point — often the only means to learn where assets went and who helped move them. The Unique Sensitivity of Business Interests Hedge-fund stakes, founder shares, carried interest, and private-equity interests are typically: illiquid difficult to value highly confidential nested within multiple tiers of entities When a spouse alleges that such interests were transferred into trusts during the marriage with help from insiders or advisers, courts have shown increasing willingness to probe deeply. In the Overdeck matter, even limited survival of Laura’s claims could trigger unprecedented discovery into Two Sigma’s valuations, communications, and internal planning. That level of inquiry into a prominent financial institution — emanating from of a divorce — is extraordinary. Does This Case “Upend” Trust Law? Not Exactly — But It Does Move the Needle John Overdeck argues that permitting these claims would “turn the trust and estate world on its head.” The core architecture of trust law is not in danger. Trusts funded with separate property and managed by independent fiduciaries remain secure. What is threatened is a set of assumptions that practitioners have leaned on for decades: that an irrevocable trust funded during marriage, even with marital assets, is structurally insulated from later attack. Courts have always possessed the authority to scrutinize transfers made to diminish a spouse’s property rights. They have simply exercised that authority sparingly — until now. What Could Now Be Fair Game If the proposed claims proceed, the litigation may reach: communications among trustees, counsel, and corporate personnel the timing and purpose of trust creation the source of funds used to capitalize the trusts any marital discord surrounding the transfers the role of advisers in facilitating asset migration This is precisely the scrutiny many asset-protection strategies have been designed to avoid. Likely Litigation Path if Amendment Is Allowed Significant Discovery Directed at Two Sigma Even as a non-party, Two Sigma could be compelled to produce: valuation materials communications with trust counsel documentation relating to trust funding internal compliance or governance communications For any major financial institution, that type of probing discovery is disruptive and potentially reputationally damaging. Potential Recharacterization of the Trusts A court could determine that the trusts: were funded with marital property were established to reduce the marital estate constitute fraudulent conveyances That does not rewrite trust law; it applies longstanding equitable doctrine to new financial realities. The Practical Outcome: Settlement The combination of business risk, broad discovery, and corporate exposure makes settlement the most probable resolution. But even a confidential settlement will influence future trust planning by high-net-worth families and their advisers. Why This Trend Is Accelerating in Modern High-Net-Worth Divorce Complex Assets Have Outpaced the Traditional System Marital estates today include: private-equity and hedge-fund interests multi-tiered partnerships offshore entities donor-advised funds family-office holdings extensive trust structures These assets are built for opacity. Matrimonial courts were not. Civil Courts Provide the Necessary Tools Civil litigation allows: subpoenas to third parties depositions of advisers and insiders damages theories forensic tracing document production far beyond matrimonial limits Courts Are Less Willing to Accept Trust Structures at Face Value Judges increasingly ask: Who really controls the trust Was marital money used to fund it Were professionals involved in insulating assets Was the structure created in anticipation of marital discord These questions now shape litigation strategy. The Broader Impact: A New Paradigm in High-Net-Worth Divorce The Overdeck litigation signals a systemic shift. More Aggressive Challenges to Marital-Period Trusts Courts will scrutinize: funding sources timing retained control professional involvement Heightened Exposure for Advisers Law firms, trustees, and family-office personnel may face liability for their roles in asset movement — something historically rare. More Conservative Trust Planning Expect: explicit spousal consents prenups and postnups addressing trusts avoidance of marital-funded transfers earlier and cleaner planning Greater Corporate Entanglement Corporations employing wealthy principals should anticipate subpoenas, discovery burdens, and reputational exposure. Parallel Litigation as the New Normal Matrimonial actions will increasingly run alongside: trust litigation fraudulent-transfer suits professional-negligence claims valuation disputes Conclusion This case is far larger than a single marital dispute. It sits at the crossroads of modern wealth planning, trust law, corporate governance, and matrimonial litigation. Whether Laura Overdeck’s claims ultimately prevail, her legal strategy reflects a new reality: spouses are no longer confined to matrimonial court, and courts are increasingly willing to look behind trust structures when significant marital assets may have been moved out of reach. The message for planners, trustees, and corporate advisers is unmistakable: trusts funded during a marriage with marital assets — and the professionals who touched those transfers—are not beyond judicial reach.
December 4, 2025
Business
The American Franchise Act Could Secure the Future of Franchising in the U.S.
A bill pending before the U.S. House of Representatives, if signed into law, would finally establish clarity on how and when employer responsibility is shared by franchisors and franchisees under the National Labor Relations Act and the Fair Labor Standards Act. The “joint employer” issue, which has cast a cloud over franchising’s continued viability in the U.S. since the Obama Administration, can finally be resolved in the long-term if this 119th Congress passes the bill. The current President has publicly committed to signing it into law if it comes to his desk. The American Franchise Act, H.R. 5267, states, “a franchisor may be considered a joint employer of the employee of a franchisee only if the franchisor possesses and exercises substantial direct and immediate control over one or more essential terms or conditions of the employees of the franchisee.” It sets forth, in some detail, the essential terms and conditions of employment, the level of control that the franchisor must exert over the term or condition (such as wage rates), and examples of assistance or guidance provided by a franchisor concerning an employment term or condition that do not constitute control. The bill’s original 14 cosponsors were seven Republicans, including U.S. Rep. Kevin Hein of Oklahoma, a former McDonald’s franchisee, and seven Democrats, including U.S. Rep. Hillary Scholten of Michigan, who said the bill will help the franchise model, which she called an “economic powerhouse” for entrepreneurs. “This bill will bring the clarity small business owners need to continue creating jobs and building up our communities,” Scholten said in a statement. “The franchising model is unique. It requires a tailored approach that properly recognizes the relationship between franchisors and franchisees.” Representative Scholten noted the uncertainty with shifting regulations “is costly to our entrepreneurs,” and the AFA “provides a clear path forward so they can focus on running their businesses.” The uncertainty to which Rep. Scholten refers is that, under a broader standard for finding a franchisor to be the “joint employer” of the franchisee’s employees, many or most franchisors would be at risk of sharing liability with franchisees on matters such as labor and wage-and-hour law violations. They might also have a legal obligation to negotiate with unions. The most recent uncertainty on the issue occurred in 2023 and 2024, when the National Labor Relations Board (“NLRB”) promulgated a regulation defining joint employment in a broad fashion nearly identical to the rule issued during the Obama Administration. The International Franchise Association, the U.S. Chamber of Commerce, and other groups challenged the rule’s legal validity in court. A U.S. District Court judge struck down the rule in March 2024, and the NLRB did not appeal the ruling. In addition, both houses of the last (118th) Congress approved a bill to reverse the NLRB’s regulation, utilizing the Congressional Review Act, including the U.S. Senate which then had a Democratic majority. However, President Joe Biden vetoed the bill in May 2024. An important effect of the uncertainty caused by expansive joint employer definitions has been to discourage franchisors from providing their franchisees with valuable tools and guidance for recruiting and managing their workforce, thereby eroding the value of the franchise for the franchisees themselves. In addition, the possibility of future administrations enacting a broad joint employer definition has a chilling effect on the continued success of the franchise model as a growth vehicle. In the absence of legislation, which is more difficult to overturn than regulations, the reticence of a quality brand to franchise will deprive potential franchise buyers of opportunities to develop successful locations of famous brands in their communities. The American Franchise Act now has 48 co-sponsors in the House of Representatives, including 12 Democratic representatives. This 119th Congress is the best chance to enact this type of legislation. To learn how to support it by telling your positive franchising story, please go to Joint Employer - International Franchise Association.
December 3, 2025
Business
Middle-Market M&A at the Close of 2025: What Business Owners Should Expect in 2026
As 2025 ends, the merger and acquisition (M&A) market, especially in the $5–$100M deal range, is closing out the year on firmer footing than it began. After two years defined by higher borrowing costs, valuation gaps, and cautious buyers, the middle market spent 2025 recalibrating. Today, we’re seeing disciplined but real momentum. There is better alignment between buyers and sellers, renewed lender appetite, and a more predictable rate environment that is finally allowing exit windows to open. Heading into 2026, small and mid-sized business owners should feel cautiously optimistic. Deals are getting done, but strong fundamentals matter more than ever. Below is a year-end look at the data, the trends, and the opportunities for middle-market deals. Deal Volume For transactions involving PE firms, deal volume appears to be on the rise in late 2025. According to a report from EY, while deal value was down for PE deals in October, deal volume in this area was up, indicating a move to more mid-market and smaller transactions for PE firms as opposed to mega deals. In terms of the overall picture for the M&A market, Deloitte’s 2026 M&A Trends Survey signals that while total deal value rose 56% in Q3, total deal volume only jumped 1.6%. They say this could “present an opportunity for increased value realization, especially with midmarket and smaller deals.” Valuation Gaps EY’s Private Equity Pulse from Q3 of this year also points to a narrowing valuation gap between buyers and sellers. In their most recent global general partner (GP) survey, two-thirds of respondents cite a narrowing valuation gap that is allowing “buyers and sellers to find common ground and move forward with confidence.” So, what is driving this gap to close? More stable interest rates and improved credit access are two of the most significant factors, along with sellers adjusting their expectations and buyers who are willing to use structure (earnouts, seller notes, rollover equity) to bridge any gaps. Sellers entering the market prepared with reliable financials, clear forecasts, and realistic expectations are the ones securing the strongest multiples. Financing Conditions EY’s Private Equity Pulse from Q3 also indicates significantly improving financing conditions. They say direct lenders are staying highly active and offering competitive pricing and flexible structures, while the broadly syndicated loan market has reopened for larger buyouts. Their report cites PitchBook LCD data showing that in the U.S., syndicated loan activity reached a record $404 billion in Q3, reflecting renewed confidence from both borrowers and lenders and signaling stronger overall credit availability heading into 2026. The 25 basis point rate cuts by the Fed in September and October have been a much-needed bright spot in 2025, freeing up access to capital, and we could see one more before the end of the year. Deloitte’s 2026 M&A Trends Survey says that if that next rate cut materializes, it would be a “welcome tailwind for deal activity.” Strategic Buyers While private equity remains active, strategic buyers were the surprise strength of 2025. Solomon Partners M&A Outlook and Trends from October indicates that strategic M&A remains steady, with strategic deal volume up 21% in Q3 2025 vs 2024. They highlight elevated cash reserves and tariff-driven cost pressures as two factors that are encouraging consolidation. Strategics are also less rate-sensitive than financial buyers, giving them more room to compete on valuation. What Small & Mid-Market Sellers Should Expect in 2026 A Healthier, but Highly Selective, Universe of Buyers Expect a strong pipeline of buyers in 2026, but not necessarily for every business. Buyers are increasingly becoming more selective, prioritizing factors such as strong margins and stable cash flow, as well as recurring or contractual revenue. AI-enabled operations or meaningful data visibility, clean financials with audit-ready records, and a clear, demonstrable growth runway will continue to drive premium valuations. Businesses that lack these characteristics should anticipate more intensive diligence and a greater reliance on structured deal terms. Diligence Will Be Even Tighter Buyers will continue to push for deeper and more comprehensive diligence in 2026, making quality of earnings reports a baseline expectation and expanding operational reviews to cover technology infrastructure, cybersecurity, and AI adoption. They will scrutinize things such as inventory practices, working-capital trends, and customer concentration more closely, while also increasing their focus on data-privacy and overall regulatory compliance. Well-Prepared Sellers Will Have the Advantage Owners considering an exit in 2026 should begin preparing now. The most successful sellers in 2025 entered the process with 12–24 months of clean, normalized financials, a strong management team ready to support the transition, and early engagement with their legal, tax, and accounting advisors before going to market. This level of preparation consistently results in shorter diligence timelines and more secure, defensible purchase prices. While the market is improving, buyers remain disciplined, and seller-friendly terms are not guaranteed. Overall, the outlook for 2026 is cautious optimism with real opportunity. If 2025 was defined by recalibration, 2026 is poised to be a year of execution, particularly in the lower and middle markets. For business owners considering a sale, 2026 may present the best environment we have seen since 2021, but only for those who are preparing today to seize the opportunity of tomorrow.
December 2, 2025
Trademark and Copyright
Termination Rights Under Scrutiny in Harper Lee Adaptation Cases as USCO Steps In
It’s said: “you never really understand a person until you consider things from his point of view,” but the Dramatic Publishing Company (“DPC”) is not so interested in considering the point of view of the Harper Lee Estate in the disputes over the rights to produce stage adaptations of Lee’s seminal work, To Kill a Mockingbird. The suits center on the exercise of termination rights under Sections 203 and 304 of the U.S. Copyright Act, invoked by Harper Lee in 2011 to terminate the exclusive right granted to DPC in 1969 to create and license amateur stage adaptations of the novel, and whether a derivative work created prior to such a termination may continue to be licensed by the licensee. The Lee Estate seeks to terminate Lee’s 1969 grant of dramatic rights, however DPC argues that its adaptation constitutes a lawful derivative work created prior to the effective date of termination, thereby preserving its continued exploitation rights under the derivative works exception to Sections 203 and 304. This conflict places the parties at odds, in both the Second and Seventh Circuits, over the scope of the termination right and the durability of licenses which permit the creation of derivative works, pre-termination. The U.S. Copyright Office (“USCO”) weighed in on April 15, 2025, by amicus brief, saying “Terminate all the rights you want, but it’s a sin to expand a derivative post-termination.” Addressing the core legal issue, the USCO supported a narrow reading of the derivative works exception, warning that an expansive interpretation would erode the statutory policy underpinning termination rights. The brief emphasizes that post-termination exploitation of derivative works should be confined to uses that do not alter or expand upon the original derivative work, and that new derivative post-termination uses should remain unauthorized. The brief thus urges the courts to adopt an interpretation that protects the integrity and utility of Sections 203 and 304. This position reinforces the principle that termination rights are intended to give authors and their heirs a meaningful opportunity to renegotiate or reclaim control of their works. Note that Section 203 of the Copyright Act does not cut off the right of a former licensee to exploit lawfully created derivative works. Instead, the law specifically allows the continued use of derivative works prepared before the termination date. The termination only reverts the licensed rights to the original copyright owner and prevents the creation of new derivative works after the termination date. The result of these suits may drastically limit an author’s ability to control the use of derivatives versions of their works, provided such works were created during the original grant period. While we do not know when we can expect the Seventh and Second Circuits to issue their decisions, rest assured we will provide an update at that time. The USCO’s amicus brief echoes the rationale they employed when confirming their final rule regarding termination rights of songwriters under the Music Modernization Act in July 2024, which further reinforces the narrow interpretation of the derivative works exception advocated in the brief. While the rule addresses royalty distributions for, specifically, musical works (as opposed to other copyright-protected works), its underlying principle, that post-termination exploitation must not expand upon pre-existing derivative works, applies in this Harper Lee dispute. Here, DPC’s continued licensing of stage adaptations arguably constitutes an expansion of the original derivative work, especially if new productions introduce changes or reinterpretations. The Office’s rule affirms that termination rights are meant to restore meaningful control to authors and their heirs, and that derivative works created under an original grant should not serve as a perpetual license to innovate or profit post-termination. The principle underlying the USCO’s July 2024 rule lends weight to the Lee Estate’s position and may influence how courts assess the scope of permissible post-termination uses.
December 1, 2025
Estates and Trusts
Maximizing Wealth Preservation with a South Dakota Special Spousal Trust
If you are married, regardless of where you live, you should consider adding a valuable tool to your estate plan: a South Dakota Special Spousal Trust, also known as a Community Property Trust (CPT). A CPT can help couples maximize tax benefits and plan for the future. Moreover, these trusts offer excellent flexibility: they can be irrevocable or revocable and neither you nor your property need to be located in South Dakota! The Big Advantage: Step-Up in Basis One of the most compelling reasons couples use a CPT is the step-up in basis. When assets—such as stocks, real estate, or business interests—are held in this type of trust, the surviving spouse typically receives a 100% step-up in basis at the first spouse’s death. In non-community property states, the surviving spouse often receives only a 50% step-up in basis, resulting in a higher capital gains tax burden if the asset is sold during the surviving spouse’s lifetime. In most common law states, like Pennsylvania and New Jersey, property acquired during marriage is either separate or jointly owned, depending on title. If an asset is jointly owned, spouses typically receive only a partial step-up in basis at death. By contrast, under the South Dakota regime, property transferred to a CPT is treated as community property for purposes of basis step-up—leading to a 100% step-up at the first spouse’s death. Couples from common law states can opt into a community property-type system for particular assets and access the step-up benefit. Ownership and rights are defined by the trust agreement and South Dakota law rather than the law of the state in which the couple resides or where the property is located. Who Benefits Most from a South Dakota CPT? While any married couple can take advantage of a South Dakota CPT, this trust is particularly suited for couples who: Are in a long-term, stable relationship so that the trust assets will truly get the step-up at deathBecause CPTs can significantly affect how assets are handled during a divorce — and the 100% basis step-up only applies if you remain married — avoiding divorce is essential. Own property that could benefit from a 100% step-up in basis. Such property includes:Substantially appreciated assets—owned either by one or both spouses. Assets that the surviving spouse does not want to manage and may immediately want to sell. Property that is highly depreciated, has a negative basis, or is collectible. The Role of a South Dakota Trustee One or both spouses may serve as trustees of the South Dakota CPT, but the trust agreement must designate at least one qualified South Dakota trustee — either a resident individual or a trust company/bank. Bottom Line A South Dakota Special Spousal/Community Property Trust gives married couples a powerful way to reduce taxes and strengthen their estate plan. By leveraging the full step-up in basis, this trust can help minimize capital gains and create long-term certainty for your family. Working with an experienced attorney and a South Dakota trustee ensures you maximize these benefits while safeguarding your legacy.
December 1, 2025
Title IX and Education
The Fallout of Shrinking Special Education Funding
As public school districts approach the end of the fiscal year, the financial strain on special education programs is impossible to ignore. Across the country, administrators are sounding the alarm that a decrease in government funding threatens the core of services designed to ensure students with disabilities receive a fair and appropriate education. The repercussions are budgetary, legal, and societal. A Crisis in Support and Access The Individuals with Disabilities Education Act (IDEA) has been the cornerstone of special education in the United States for many years, guaranteeing eligible students the right to a Free Appropriate Public Education (FAPE) tailored to their individual needs through an Individualized Education Program (IEP). But as federal and state funding levels stagnate or decline, school districts are struggling to sustain those mandates. Essential services, which include occupational and speech therapy, one-on-one aides, specialized classroom instruction, and adaptive technology, are increasingly at risk. In many districts, administrators face impossible choices to reduce staff, increase caseloads, or limit access to supports, which directly impact student progress. The result is an environment where schools risk falling out of compliance with federal law, opening the door to complaints, state investigations, and civil litigation. Legal Obligations Under Strain The IDEA is an unfunded or underfunded mandate, which becomes more consequential each fiscal year. The federal government initially promised to cover 40% of the excess costs of educating students with disabilities. According to the Congressional Research Service, current funding is at less than 12%, and the IDEA shortfall in the 2024-2025 school year nationwide was $38.66 billion. States and local districts shoulder the rest. Failure to provide appropriate services can expose districts to multiple forms of legal liability. Parents may file for administrative due process hearings, alleging violations of FAPE or procedural rights under IDEA. If unresolved, these disputes can escalate into federal court actions under Section 504 of the Rehabilitation Act or the Americans with Disabilities Act (ADA). Claims of discrimination, denial of access, or failure to accommodate are among the most common special education lawsuits nationwide. Moreover, reductions in special education staff can raise employment law concerns, such as violations of teacher-to-student ratios required by state law or breaches of collective bargaining agreements. If a district reallocates special-education funds to general programming, questions of misappropriation or misuse of federal funds under the Office of Special Education Programs (OSEP) can arise. Effect on Families and Educators Families who rely on these services can find themselves trying to work through appeals and attend numerous meetings to restore previously agreed-upon supports. Teachers and specialists also find themselves in untenable positions. Many are legally responsible for ensuring compliance with IEPs, which gets harder as resources to implement them disappear. Looking Toward 2026: A Troubling Forecast If current trends continue, the 2026 forecast for special education is concerning. Without renewed investment, the quality and equity of special education could sharply deteriorate, leading to widening achievement gaps between students with disabilities and their peers. Legal experts anticipate a surge in litigation as parents and advocacy organizations seek to hold schools accountable. At the same time, policymakers may face renewed scrutiny. The Intersection of Policy, Law, and Equity Special education is a civil right. The IDEA, Section 504, and ADA collectively enshrine the principle that students with disabilities deserve equal access to learning opportunities. When funding is cut, that right is eroded. At the end of the day, this is about accountability. The promise of the IDEA was that every child, regardless of disability, would have access to an education that prepares them for further learning, employment, and independent living. As 2026 planning continues, policymakers need to understand cutting special-education funding shifts costs to families forced to seek private services, to teachers navigating impossible workloads, and to courts addressing the fallout.
December 1, 2025
Estates and Trusts
Protecting Aging Loved Ones from Predatory Partners
As individuals age, they often face unique emotional and financial vulnerabilities that can make them susceptible to exploitation. In recent years, I have noticed a troubling uptick in cases related to one of the more concerning forms of elder abuse, which is at the hands of a predatory spouse or romantic partner. This type of elder abuse often results in a gain of undue influence over an aging individual, leading to manipulation, financial exploitation, coerced changes to estate planning documents, and, in one case, the administration of medication to compromise my elderly client. This type of exploitation is often subtle, masked by the appearance of affection or companionship, and it can have devastating legal and financial consequences for the older adult and their family. Elder exploitation by a spouse or intimate partner typically begins with efforts to isolate the older adult from family members, long-time friends, or trusted advisors. Warning signs may include sudden changes in behavior and secrecy surrounding financial matters, and can result in unexplained transfers of money or property, or the execution of new estate planning documents, beneficiary designations, or a deed transferred to favor the new partner. In many cases, the older adult may not recognize the manipulation taking place or may be reluctant to acknowledge it out of fear, embarrassment, or emotional dependency. Legal Protections and Preventive Measures Proactive legal planning remains the most effective method to protect aging loved ones from predatory relationships. Establishing a comprehensive estate plan is essential. A plan should include a durable power of attorney that appoints a trusted and financially responsible individual — other than the romantic partner — to manage financial affairs upon incapacity. A health care proxy and related HIPAA release ensure that medical decisions reflect the aging loved one’s wishes, rather than the influence of a manipulative partner. In my practice, I encourage the use of revocable living trusts, which further safeguard the individual by centralizing the management and creating a layer of oversight for those assets. Trusts can be drafted so that a trusted individual or an adult child can serve as a co-trustee with the aging loved one, ensuring that they maintain their autonomy while not being subjected to undue influence or decisions that do not benefit them. In some instances, irrevocable trusts can offer additional protection by restricting direct access to funds and preventing third parties from exerting control over assets intended for the elder’s or their family’s benefit. When marriage is contemplated, a prenuptial agreement is vital to protect an individual’s assets and family inheritances. Such agreements can define the financial boundaries of the relationship and prevent disputes or exploitation later. If marriage has already occurred, in some cases, a postnuptial agreement may still provide meaningful protection and clarify financial rights and obligations. Families should also remain vigilant regarding changes to financial advisors, brokerage houses, deeds, joint accounts, and beneficiary designations. If sudden or unexplained modifications occur, or if there is evidence of undue influence or incapacity, immediate legal action may be necessary. In severe cases, guardianship proceedings can be initiated to protect the older adult from further exploitation and to restore financial control to a court-appointed fiduciary. While the risks of exploitation can be significant, it is still critical to approach these matters with kindness and sensitivity to the elder’s autonomy and dignity. The goal of legal intervention should not be to limit the independence of your aging loved one, but to preserve it by preventing exploitation. Thoughtful legal planning involving the aging loved one will provide a structure that allows aging individuals to maintain control over their affairs while minimizing the risk of coercion or manipulation. Timing is Everything Once exploitation has occurred, legal remedies are often complex, time-sensitive, and emotionally fraught: early intervention is key. Families who notice signs of isolation, undue influence or financial abuse should consult with an experienced elder law or estate planning attorney promptly. A knowledgeable attorney can review existing documents, recommend protective legal mechanisms, and, where appropriate, initiate proceedings to safeguard the elder’s assets and welfare. Protecting aging loved ones from predatory spouses or partners requires vigilance, communication, and sound legal planning. By taking proactive steps — establishing comprehensive estate documents, creating appropriate trusts, and, when necessary, pursuing legal recourse — families can ensure that their loved ones’ financial security and personal dignity are preserved. In the end, these legal safeguards not only protect assets but also uphold the fundamental right of every individual to age with safety, with respect, and in peace of mind.
November 21, 2025
Bankruptcy
From the Bench: A Roadmap for Navigating Preference Defenses
Port Elizabeth Terminal & Warehouse Corp., a major marine terminal and warehousing operator serving the Port of New York and New Jersey, filed for Chapter 11 on November 14, 2025, in the Bankruptcy Court for the District of New Jersey against the backdrop of a continued freight recession. Whether this downturn reflects a sector-specific correction or signals a broader economic slowdown amid weakened consumer demand, suppliers of goods and services should take this moment to revisit their exposure to preference claims — particularly when customers show signs of financial distress. A recent decision by Judge Walrath underscores the importance of this review. Miller v. Industrial Finishes & Systems Inc. (In re Calplant I LLC), 23-50690 (Bankr. D. Del. Oct. 27, 2025). The court held that a $72,978.53 payment made just four days before CalPlant’s Chapter 11 filing was an avoidable preference under 11 U.S.C. § 547(b). The vendor argued that the payment qualified either as (1) a contemporaneous exchange for new value, or (2) a payment made in the ordinary course of business. The court rejected both defenses. Case Background CalPlant I, LLC operated a facility converting rice farming byproducts into medium-density fiberboard. The defendant, Industrial Finishes & Systems (“IFS”), supplied materials under a 2019 consignment agreement. Under this arrangement, IFS shipped supplies to CalPlant, which used them as needed. Title transferred only upon use, after which CalPlant reported usage and IFS issued invoices payable within 30 days. On September 30, 2021, IFS invoiced CalPlant for $72,978.53; payment was received on October 1, 2025 just days before the bankruptcy filing. IFS contended it was not a creditor as of September 30, 2021 because its right to payment arose only after invoicing, and there was no antecedent debt. The court disagreed, emphasizing that creditor status does not hinge on invoice issuance or proof of claim filing. The Bankruptcy Code (the “Code”) defines a creditor as an “entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor.” Under the Code, a “claim” includes any right to payment — contingent or otherwise — and a “debt” is a liability on such a claim. While the Code does not define “antecedent,” the court found its meaning is well-established: “earlier; preexisting; previous.” Thus, the court concluded that a transfer is made on account of an antecedent debt if the creditor had a right to payment of that debt before the debtor made the transfer. Thus, the right to payment arose when CalPlant used the supplies, even if invoicing occurred later. This interpretation significantly broadens exposure for vendors operating under delayed billing. The usage in September preceded the transfer date regardless of whether the transfer occurred on September 30 when the debtor initiated the electronic transfer, on October 1 when IFS received the funds. With respect to the new value defense, the decision underscores that the vendor must show actual new value given at or after the transfer — not just business convenience. As to ordinary course defense, the court demands specific industry data, not general statements about internal practices. This decision reinforces the need for vendors dealing with distressed customers to proactively manage preference risk. It is important to monitor payment timing closely and avoid deviations from historical patterns, particularly when payments are made earlier than usual. Consistency in timing can help demonstrate that transactions occurred in the ordinary course of business. Additionally, vendors should document industry standards and maintain supporting data, as this information is critical for establishing an ordinary course defense if challenged.
November 21, 2025
Estates and Trusts
The Dreaded After-Discovered Will
The Estate Administration Curveball that can Change Everything The case of Zappos owner Tony Hsieh, the late billionaire who was initially believed to have died intestate, without a valid will, took an unexpected turn when an apparent original will surfaced years later, halfway around the world, under highly unusual circumstances. This development highlights the complexities that can arise when a previously unknown will appears after a period of presumed intestacy. While many of the legal and factual issues in Hsieh’s case are unique, the story provides a valuable lens for understanding what can happen when an unexpected will emerges and the broader implications for estate planning and estate administration. To understand the impact of an after-discovered will coming to light only after a probate has already begun, or even concluded, taking a quick step back may be in order. This can be equally problematic whether the case had been proceeding under the assumption of intestacy as in the Hsieh (aka Zappos) case, or under a commonly held misperception that the will was the decedent’s “last will.” Probate is the legal process of administering a deceased person’s estate. When someone dies without a will, the state steps in with its own rules — called intestacy statutes — to determine who inherits what. But if a valid will is found after the fact, things can get complicated. Similarly, the discovery of a more recent will after probate has proceeded based on a prior will (believed and understood at the time to be the latest such testamentary document of the decedent disposing of the decedent’s estate assets), raises obvious questions about the voidability of past proceedings and decision making relating thereto. Several key issues that might arise when a will surfaces after the fact include the following. Impact on ongoing probate proceedings. How, if at all, does an after-discovered will impact an ongoing probate process? If an estate is still open and being administered when a will is discovered, Virginia law allows for a significant course correction. Assuming the newly-found will is offered, and, if recognized and accepted by the court as a valid will of the deceased, admitted for probate, the terms of the new will supersede the intestacy-based administration. Because the circuit court has jurisdiction over probate matters, the will should be submitted to the circuit court in the locality where the decedent resided or held property, i.e., the same jurisdiction where an intestate administration ought to have been properly initiated in the first instance. (See Virginia Code § 64.2-443). If the estate has already been closed, reopening the probate may be necessary. Interested parties — such as heirs, beneficiaries, or the original executor — can petition the court to reopen the estate to administer the will properly. While Virginia doesn’t have a specific statute conveniently titled “reopening probate” or the like, courts generally allow it under their inherent authority when new evidence (like a valid will) emerges. Impact on a closed probate estate. How, if at all, does an after-discovered will impact any already-administered or distributed assets? If assets have already been distributed under a presumed intestacy, the discovery of a valid will could trigger efforts to try to recover and redistribute assets to the extent the will calls for an outcome other than the default intestate division. This right to a “redo” is not without limitations, however. Recognizing that it might be appropriate but difficult to near impossible to simply reverse any transactions, the general assembly saw fit to afford an aggrieved would-be beneficiary a window in which to be able to make good. For instance, in Virginia, Section 64.2-457 of the Code of Virginia provides that assets distributed under a presumed intestacy may be subject to recovery if a will is later discovered and admitted to probate. However, this recovery is limited both in scope and time. The statute generally allows for asset recovery only if the will is discovered and probated within one year of the original probate or administration. After that, asset distributions are typically deemed final, and the recipients may not be required to return the assets. In other words, whether property already transferred might be subject to being clawed back into the estate for the benefit of a devisee under a later-discovered will, will be determined by whether the after-discovered will is filed within that one-year period. See also Virginia Code Sections 64.2-456 for further details. Such a limitation is most commonly referred to as a “statute of repose.” Who’s in charge now? What happens, if anything, to prior probate procedural decisions (e.g., executor qualifications; administrator appointments; related fee awards) made based on a previously presumed or later-occurring intestacy? Some prior decisions — such as the appointment of a personal representative or the approval of accountings — may be revisited, especially if they conflict with the terms of a newly discovered will (or the impeachment of a will previously relied upon). However, Virginia courts may uphold actions taken in good faith under the original probate, particularly if the will’s existence was unknown (as opposed to known but undiscovered) and could not reasonably have been discovered. The court has discretion to issue protective orders or modify prior probate orders of the clerk, or deputy, to reflect the actual or new reality, as outlined in Section 64.2-445, which allows appeals and adjustments to probate orders by the circuit court within six months of entry by the clerk. More generally, however, the circuit court is vested with equitable authority to do what is right and just to the circumstances. If a court approved the appointment of an administrator on the presumed non-existence of a will, even after hotly-contested proceedings, only to learn later to the contrary, the court will not be compelled to abide by its prior order and shall, instead, be empowered to make whatever changes the court determines are appropriate to the newly understood situation. Just as the timely discovery of new evidence might justify vacating a prior final judgment in either civil or criminal proceedings, so too would we expect that a circuit court judge to be empowered to do what’s right, regardless of any stated rationale for the prior decision. The Bottom Line When it comes to discovery of a loved one’s estate planning documents, “better late than never” does not always hold true. Certain rights are preserved or upheld by appealing a clerk’s order admitting a will to probate within six months from entry of such an order. When it comes to reversing actions taken prior to the discovery of a valid and/or more recent will of the decedent, the one-year anniversary of a decedent’s date of death is the key differentiator. A will discovered late in the probate process can up-end the entire legal and financial structure of an estate and its administration and completely change the probate narrative. If discovered too late, it may, for all intents and purposes, not have any effect at all – insofar as the probate narrative may, by that time, have been completely and irrevocably rewritten in a manner contrary to the decedent’s intentions. After the one-year anniversary, the decedent’s testamentary intentions may very well have been rendered moot as having been “OBE,” or “overtaken by events,” to the extent that the probate proceeded in the absence of the unknown or missing will. A would-be financer or purchaser from a legal heir, devisee, or personal representative with power to sell, mortgage, or otherwise dispose of an interest in real property, should be mindful of the one-year anniversary and very wary of taking action in advance of that deadline or else risk potential divestment of whatever interest in the property they believed they were acquiring. The Hsieh (aka Zappos) case serves as a stark reminder that document safekeeping and communication about the whereabouts of important testamentary documents matter as much or more as proper planning in the first instance.
November 21, 2025
Labor and Employment
OSHA Reopens After Government Shutdown: What Employers Should Expect
The Occupational Safety and Health Administration (OSHA) is officially back to full operations, now that the government shutdown has ended. With staff fully restored, employers need to recognize that agency activity previously paused is now resuming — and, in many cases, accelerating. As OSHA re-engages inspections, rulemaking, and policy initiatives, organizations that assumed a “wait-and-see” stance during the shutdown may find themselves playing catch-up. During the funding lapse, OSHA’s enforcement was largely limited to imminent danger situations, workplace fatalities and catastrophes, and high-gravity serious violations that could not wait. Programmed inspections, outreach, cooperative-program activity, and some informal conferences were suspended. Yet despite that pause, employers did not gain any regulatory holiday: many deadlines continued to run. For example, the six-month statute of limitations for OSHA to issue citations remained in force, as did the 15-working-day deadline for filing a Notice of Contest once a citation is issued. Because of that, businesses must now review and respond to any enforcement activity that may have been initiated during the shutdown period but did not proceed in a typical manner. With the shutdown behind us, OSHA will begin clearing the backlog of work that accumulated, and that means employers should expect increased activity. Complaints filed during the shutdown may lead to inspections, email inquiries, or phone contact, and cited cases may be pushed toward litigation or settlement as the agency’s Office of the Solicitor resubmits matters to the Occupational Safety and Health Review Commission (OSHRC). The new leadership at OSHA and OSHRC, confirmed during or immediately following the shutdown, signals a renewed policy push: new priorities, new enforcement emphasis, and perhaps fresh interpretations of the rules. On the regulatory side, rulemaking initiatives that were paused are now reactivated. For example, OSHA recently closed its post-hearing comment period for a proposed heat exposure standard, and staff will resume review of comments now that appropriations have returned. Other dockets — related to chemical respiratory protection, changes to the general duty clause, lighting in construction, and workplace violence/infectious disease standards — are also moving forward. Employers should remain alert because while final rules may not be imminent, the path is now open. Given this environment, it is imperative for employers to revisit their safety, health, and compliance programs—and do so with urgency. While the shutdown may have created a temporary lull, it did not suspend employer obligations. During the pause, many firms may have held off on site audits, deferred training programs, delayed record-keeping cleanup, or postponed internal corrective actions. Now is the time to address those gaps. Reporting requirements remain in effect: for example, employers must report work-related fatalities within eight hours and serious injuries (such as amputations, loss of an eye, hospitalization) within 24 hours of occurrence. Furthermore, even in states under federal OSHA plan coverage, the same rules apply: while federal inspectors may have been limited, many state-plan jurisdictions continued inspections and enforcement. Another significant factor: backlog and delay do not mean indefinite delay. When inspections resume in earnest, the accumulation of complaints and deferred cases may result in a surge of agency activity, meaning firms that assumed “no one is watching during the shutdown” could find themselves under scrutiny. In other words, the quiet period is essentially over. Employers should confirm that abatement deadlines, informal conference windows, and contest deadlines have not expired during the shutdown. If citations were issued, the 15-working‐day contest deadline is jurisdictional: missing it means losing the right to challenge the citation. Even if informal conferences were unavailable during the shutdown, the contest deadline continued to run. That means many firms may need to act even before the agency shows up. Documentation of abatement actions, corrective steps, and safety program updates will be vital. In terms of regulatory posture and leadership, the era ahead may bring changed enforcement priorities. With a new assistant secretary for OSHA and a newly confirmed solicitor of labor now in place, OSHA will likely clarify its strategic focus and resume formal rulemaking. Employers should anticipate possible shifts in emphasis — for instance in the areas of musculoskeletal disorders, infectious disease in healthcare, workplace violence protections, and emerging hazard exposures. The agency’s restart also triggers renewed activity at the Mine Safety and Health Administration (MSHA) and its review commission. For employers in mining and heavy industry, that means you should not assume continued dormancy. For practical steps, employers should immediately conduct a legal-compliance health check. Review outstanding citations, confirm whether any deadlines have run or are about to run, track complaints filed with OSHA during the shutdown, and review your injury/illness reporting and record-keeping for accuracy. Update or re-launch training and internal auditing efforts that may have been deferred. Check the status of rulemaking efforts that may affect your industry (for example, the heat stress standard) and monitor whether state-plan jurisdictions are adopting or adapting state-specific rules in response. If your firm operates in multiple states, especially with state-plan OSHA programs, coordinate your multi-state compliance posture now because state enforcement may not have had the same suspension. Finally, ensure your safety culture remains robust: a period of reduced government oversight is not grounds to reduce employer vigilance. In short, OSHA’s return means business as usual — and then some. Employers who treat the shutdown as a pause rather than a break may find themselves at a disadvantage. Now is the time to engage proactively, refresh your compliance strategy, reinforce your safety programs, document your actions, and stay alert.
November 20, 2025
Commercial Litigation
Enforcing Guaranties Quickly in New York Courts
New York law provides creditors with a powerful tool to pursue collection on a written guaranty on an expedited track. CPLR 3213 allows a creditor to serve a summons along with a motion for summary judgment — bypassing the requirement for a written complaint and asking the court to enter a judgment against the debtor. The creditor must be seeking to enforce an instrument that is “based upon an instrument for the payment of money only.” CPLR 3213. Courts have varied in interpreting that phrase in that a written guaranty may contain monetary and nonmonetary obligations. Still, if the instrument imposes nonmonetary obligations on the guarantor, a court may conclude that the instrument is not “for the payment of money only” and deny the motion on that basis. Therefore, it is important that creditors carefully craft their written guaranties. New York courts have held that a prototypical guaranty is “an unconditional promise to pay a sum certain, signed by the maker and due on demand or at a definite time.” Weissman v. Sinorm Deli, Inc., 88 N.Y.2d 437, 444 (1996). In 2021, the First Department Appellate Division held that a guaranty including “an unconditional obligation to pay all rent and additional rent owed under the sublease” qualified as “an instrument for the payment of money only” because “it required no additional performance” of an obligation other than the promise to pay. iPayment Inc. v. Silverman, 192 A.D.3d 586, 587 (1st Dept. 2021). In the creditor’s motion for summary judgment, it must show “the existence of the guaranty, the underlying debt, and the guarantor’s failure to perform under the guaranty.” Pearl River Campus, LLC v. Readyscrip, LLC, 240 A.D.3d 610, 611 (2d Dept. 2025). In that case, the Appellate Division held that the lower court properly denied the creditor’s motion for summary judgment because there was insufficient proof. Specifically, because the Supreme Court “would have been required to examine material outside the lease agreement and make calculations that were not shown by the [creditor]” in its supporting documents, the proof was insufficient to grant summary judgment. Id. In situations like that, when the creditor’s motion is denied, CPLR 3213 states that the papers filed in support of the motion and opposing the motion become the complaint and answer for the case. However, a court could order otherwise — such as requiring the parties to file a separate complaint and answer. Regardless, when the court denies the motion for summary judgment in lieu of a complaint, the creditor then can only proceed with the case and seek its judgment against the guarantor at a later stage of litigation. Creditors seeking to maximize collection in New York courts stand to benefit from reviewing and revising their guaranties to conform with the standard that CPLR 3213 imposes and to pursue motions for summary judgment in lieu of complaints when filing collection actions.
November 19, 2025
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