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
Labor and Employment
Increasing Minimum Wages: Emerging Trends Across the U.S.
The conversation around minimum wage in the United States has gained renewed momentum in recent years. While the federal minimum wage has remained unchanged since 2009, states and municipalities have taken the lead in implementing wage increases to reflect the rising cost of living and economic shifts. State-Level Action in the Absence of Federal Change With the federal minimum wage stuck at $7.25 per hour for over a decade, many states have enacted their own legislation to raise wage floors. These efforts include: State-level minimum wage increases Automatic adjustments tied to inflation Municipalities setting wages above state levels This decentralized approach has led to a patchwork of wage standards across the country, with significant variation depending on location. Widespread Increases Since 2014 The movement to raise minimum wages has gained substantial traction: 28 states and the District of Columbia have increased their minimum wage since 2014 30 states and the District of Columbia now have minimum wages above the federal rate 63 municipalities or counties have set minimum wages higher than their respective state minimums Wage rates exceeding $15.00 per hour are increasingly common These changes reflect a broader recognition of the need for wages that better support working individuals and families. Leading the Nation: Highest Minimum Wage Rates As of mid-2025, several states and cities stand out for their high minimum wage rates: District of Columbia: $18.00/hour (effective July 1, 2025) California: $16.50 Connecticut: $16.35 New Jersey: $15.49 New York (NYC, Long Island, Westchester): $16.50 Washington: $16.66 Municipalities in Washington State boast the highest local rates: Burien, WA: $21.10 Tukwila, WA: $21.10 (for large employers) Seattle, WA: $20.76 These figures highlight the growing trend of local governments stepping in to ensure livable wages. Who Still Earns the Federal Minimum? Despite the federal rate remaining at $7.25, only a small fraction of workers earn this amount: Less than 2% of American workers are paid the federal minimum wage The Bureau of Labor Statistics projects wage growth of 3% to 5% across most states in 2025 By October 2025, over half of all states will have minimum wages above $14.00/hour This data suggests that market forces and state legislation are driving wage increases independently of federal action. Federal Legislation on the Horizon? The Raise the Wage Act of 2025, introduced in both chambers of Congress on April 8, 2025, proposes sweeping changes: Gradual increase of the federal minimum wage to $17.00/hour by 2030 Elimination of the subminimum wage for tipped workers and workers with disabilities Tipped employee minimum wage to rise to $15.00/hour by 2030 Strong backing: 175 Congressional sponsors and support from 85 labor organizations If passed, this legislation would mark a significant shift in federal wage policy and could set a new national standard.
November 19, 2025
Real Estate
The Role of Delaware Legal Opinions in Today’s Corporate Transactions
In commercial transactions, legal opinions often serve as both a risk-allocation device and a due diligence tool. Among the states, Delaware occupies a special place in opinion practice because of its role as the preferred jurisdiction for entity formation, corporate governance, and sophisticated financing structures, as outlined in the previous article, Five Reasons Delaware Reigns Supreme for Business Formation. A “Delaware legal opinion” is typically rendered by counsel admitted to practice law in Delaware on issues governed by Delaware law—most frequently concerning the formation, existence, power, and authorization of a Delaware entity. Legal opinions are not guarantees of outcome; they are professional judgments based on law and fact as of the opinion date. In a Delaware context, legal opinions are most often requested in three categories of transactions: Financing transactions – Lenders frequently require Delaware legal opinions when the borrower or guarantor is a Delaware corporation, limited liability company, limited liability partnership, or limited partnership. Mergers and acquisitions – Opinion letters provide assurances that the Delaware entities involved are duly organized, validly existing, and in good standing. Securities offerings – Opinions regarding valid issuance of shares and due authorization are common in both private placements and public offerings. For counterparties, a Delaware legal opinion provides assurance that the entities they are contracting with are legally valid and authorized to enter the transaction. For clients, an opinion may be a necessary condition to close the deal. Although every opinion letter is transaction-specific, certain opinion points recur with regularity in Delaware practice. These include: Due Organization and Good Standing – Opinion giver confirms that the entity has been duly formed under the Delaware General Corporation Law (DGCL), the Delaware Limited Liability Company Act, or other applicable Delaware law and remains in existence and is in good standing. Power and Authority – The entity possesses the power under its governing statute and charter documents to enter into the transaction. Due Authorization – Proper approvals (board, members, or managers) have been obtained. Execution and Delivery – The documents have been validly executed and delivered by the Delaware entity. Enforceability –The obligations under the agreement(s) are enforceable against the entity, subject to customary exceptions (such as bankruptcy or equitable principles). Opinion givers frequently rely on certificates from the Delaware Secretary of State (e.g., good standing certificates) and officer or manager certificates to establish factual predicates. No Delaware legal opinion is absolute. Instead, it is qualified by assumptions, limitations, and exceptions designed to keep the opinion within the bounds of what is professionally supportable. Some common qualifications include: Bankruptcy Exception – Enforceability opinions are subject to limitations arising under bankruptcy, insolvency, and similar laws. Equitable Principles Limitation – Enforcement may be subject to general principles of equity. Choice of Law Limitation – Opinions are limited to Delaware law; no view is expressed on the law of other jurisdictions. Assumptions – Opinion giver may assume genuineness of signatures, legal capacity of natural persons, and authenticity of documents. Delaware lawyers rendering opinions occupy a careful balance between advocacy and objectivity. Although engaged by a client, opinion counsel owes professional duties to the counterparty receiving the opinion. Courts and bar associations recognize that the opinion recipient is entitled to rely on the lawyer’s professional judgment, but that the lawyer is not an insurer of the transaction. Consequently, opinion practice demands diligent factual inquiry (review of charter documents, resolutions, certificates); accurate legal research grounded in Delaware statutory and case law; clear communication of scope, assumptions, and limitations. Failure to adhere to customary standards can expose opinion counsel to professional liability, even though such claims remain rare. Delaware’s prominence in U.S. business law ensures that Delaware legal opinions will remain a cornerstone of corporate, financing, and M&A transactions. While often treated as routine closing deliverables, these opinions embody careful professional judgment, rigorous analysis, and adherence to customary standards. For opinion givers, the discipline is one of precision, ensuring that each word reflects exactly what can be supported under Delaware law, and nothing more. For opinion recipients, reliance on a Delaware opinion provides comfort that the legal foundation of their deal is sound. In this way, Delaware legal opinions both reflect and reinforce Delaware’s reputation as the nation’s preeminent forum for business law.
November 19, 2025
Intellectual Property
Common Copyright Mistakes That Can Cost Your Business Big
You learned everything you need to know about avoiding copyright infringement in elementary school: don’t copy. And if you do copy, you will be called a copycat. Childish, I know, but it seemed to work. Except copying continues outside of elementary school, and businesses spend time and money resolving claims of unauthorized copying, diverting their attention and resources from their core business. The Problem Although we may learn in elementary school not to copy, the lesson does not always take hold. What harm is there in copying? Who is going to catch us? If it’s online, it’s available for me to use, and I don’t need anyone’s permission. That thinking is one root of the problem. The notion that obtaining permission is too much of a legal slog (too expensive, too time consuming, etc.) is another reason the ‘don’t copy’ rule is ignored (generally seen in tech projects, such as the current use of others’ works to train large language models for AI). More often than not, copiers get caught. This is especially true in the case of parties copying photographs. Photographers are well aware that their photographs are used without permission, and actively police their rights. There have been lawsuits regarding the use of photos of foods used on menus without permission. Creators have received cease and desist letters because they have used, without permission, a photograph as the background for a work they created. Photographers have sued when their images were re-posted on Instagram without permission. Interior design and fashion companies (among others) like to post on their websites and their social media when their items or their work are featured in prominent publications. Such postings are almost always without permission. For example, a wallcovering company could post on its website photos from magazines showing its wallcoverings in houses. The owners of the homes may have consented to the company’s use of the photos, and the magazines may have consented, but that is usually not enough. The photographer must give permission because they generally own the copyright to the photo. Posting photos to social media can also result in claims of copyright infringement if the posts are made without permission. Yes, social media is made for sharing photos. That does not mean that photos can be shared without consent. LeBron James, Gigi Hadid, Versace, Fenty, and Moschino have all been sued for copyright infringement after posting photographs on social media without permission (Gigi Hadid was sued for posting photos of herself taken by paparazzi). News articles, too, present an issue. Reproducing news articles can give rise to copyright infringement claims. Imagine if a company had a news section on its website that reproduced news articles it thought would be of interest to its customers. That would also pose issues. Each article posted would be an infringement. If that posting was a long-running practice (say two or three years), then that company could be in for a significant payment to the owner(s) of the posted articles. If You Copy, Then You Copied Unauthorized reproduction of artistic works is generally known as copyright infringement. The primary defense to copyright infringement is that the original work and the infringing work are not substantially similar, or that one did not have access to the original work. But in the cases we have been discussing, that argument is generally not available, as the copies are usually identical to the original work. Giving credit to the creator of the original work does not avoid a claim of copyright infringement. A photographer or a news organization might decide not to take action if credit is given, but the fact that you gave credit is not a legal defense. In copyright infringement cases, it doesn’t matter that you didn’t intend to infringe. You either infringed or you didn’t. Intent enters the picture, in some situations, when damages are being assessed. Fair use is frequently cited as a defense. While fair use is a defense to a copyright infringement claim, determining whether something constitutes a fair use usually requires determination by a court. Such a determination can take considerable time (a year or more), and it is difficult to predict how a court will decide a fair use question. The fact that the entire work is reproduced will weigh against a finding of fair use, as will the fact that the work has not been transformed into something new — the work has merely been reproduced. If the photograph or news organization has a program for licensing their works, that will also weigh against a finding of fair use. The limited number of defenses works in favor of copyright owners. Copyright Law Favors Copyright Owners If there has been copyright infringement, copyright owners are entitled to recover their actual damages plus the infringers’ profits attributable to the infringement. If the copyright owner timely registered their copyright, they can seek, as an alternative to actual damages, statutory damages, which are generally set by the court and can be up to $30,000 per infringement and up to $150,000 per willful infringement. With timely registration, copyright owners can also seek to recover their reasonable attorney’s fees. That alone is favorable to copyright owners, but recent Supreme Court decisions have decidedly tipped the scales. In one case, the Supreme Court ruled that the Copyright Act’s three-year statute of limitations only applied to when a claim had to be brought, not how far back the copyright owner could reach for damages. In another case the Supreme Court declined to rule on whether the three-year period is calculated from when the copyright owner discovers the infringement or from when the infringement occurs. Most courts calculate it from when the copyright owner discovers the infringement. So take the wallcovering company we discussed above. They have been posting magazine covers and the pages from the magazines featuring their wallcoverings on their website for ten years. One of the photographers used by the magazines to photograph houses learns what the wallcovering company has been doing today. The photographer has three years from the date of discovery to act, and when they do, they can recover damages for every post by the company that infringed the photographer’s rights, even if the post was made ten years ago. That can add up very quickly, and result in payments to copyright owners in the thousands or millions of dollars. What To Do? The penalties for copyright infringement can be steep, making it essential to learn how to avoid copyright infringement exceedingly important. Training employees to ask questions about what they are doing before they do it is a good way to start. Provide users links to images of interest, and do not duplicate them unless you have permission. Linking is not copyright infringement. Ensuring that employees understand the company’s policy against copying and discouraging it is another step. Train employees on what is permissible and what is not. Do not assume that they know — there are many myths and urban legends about what is permissible, and the time to learn what the law actually permits and what it does not permit is before a claim is brought, not after. Hiring your own creators to create photos, images, articles, and the like for your company’s use, is another way to avoid this issue. Yes, there is a cost associated with this. That cost, however, is likely less than the cost of paying to resolve a claim brought by a copyright owner, both in time and in money (and your own attorney’s fees).
November 18, 2025
Business
Before You Exit: Navigating Succession Planning and Growth in Privately Held Companies
The Third Annual Private Business Owner Survey by Brown Brothers Harriman (BBH) is out, and it provides a revealing and timely look into the mindset, priorities, and risks facing today’s private business owners. We're all aware of it by now - the largest cohort of founders and business owners are reaching retirement age. The survey from BBH and findings in the report shed light on the intersection of personal planning and corporate continuity. For business owners, investors, advisors, and those preparing to take the reins, this report offers not just data, but direction. Succession and sustainable growth are clearly interconnected based on the information collected. The BBH report also underscores the importance of understanding the broader exit landscape. In addition to estate planning, it should be considered how search funds, independent sponsors, and family office buyers fit in. As deal volume rises and ownership transitions accelerate, sellers must weigh the nature of their successors just as carefully as the valuation terms. Succession: More Talked About, Still Under-Planned Although 62% of business owners express a desire to pass their business to the next generation, only 23% have taken concrete steps to implement a formal succession plan with key executives. An alarming 30% have no succession plan at all, despite the majority having been in business for decades. The balance (~46%) have some form of succession plan in progress. Key barriers to succession planning were reported to include: Emotional reluctance to step away (28%) Uncertainty over the right successor (41%) Complex family dynamics (46%) The business owner's perception of the successor's preparedness is also likely an issue, where the overwhelming majority reported that the successor is not yet fully prepared. Business owners hope that informal conversations will serve as a roadmap, but the reality is far less forgiving. Without clear documentation and defined leadership roles, businesses face confusion, instability, and risk of value erosion during a transition. Succession isn’t a one-time event - it’s a process requiring candid conversations, objective planning, and consistent follow-through. This is where search funds and independent sponsors can play a unique role. These buyers, often backed by seasoned investors or family offices, are well-positioned to acquire and operate businesses where no natural successor exists. Their appeal lies in their hands-on involvement, long-term view, and ability to step into the role of owner-operator while respecting the legacy of the founder. This also ties into the critical question of estate planning. The BBH report found that of the 70% of business owners with an estate plan, 76% will be using a trust. Growing and Sustaining: A Top Priority with Diverging Paths A strong growth mindset persists among private business owners. 78% of respondents prefer reinvestment and long-term growth over extracting profits or maintaining full ownership. However, this growth focus can lead to diverging opinions within ownership groups, especially when generational views or risk tolerances differ. The survey revealed that while 59% of owners believe their leadership teams are very well aligned on business strategy, 32% admitted to only moderate alignment. That misalignment can be costly—it often leads to stalled initiatives, delayed decision-making, and increased friction over strategic direction. To support growth, owners are considering various funding strategies: 69% plan to use traditional bank financing 30% are open to family office partnerships 20% are exploring private equity as a source of growth capital Still, the most commonly cited barrier to external capital is loss of control. Many owners fear that selling equity or bringing in new stakeholders may compromise their values, culture, or influence. However, those who thoughtfully structure outside capital arrangements may find they unlock opportunities that far exceed the costs. It’s worth noting that the search fund (ETA) and independent sponsor space is seeing a sharp uptick in activity, with many of these buyers receiving funding from family offices and specialty investors. Many of these groups offer capital and continuity without the pressures of a traditional private equity exit cycle. Some family offices are combining direct investment strategies with multi-generational wealth management, leading them to become increasingly active in small and mid-market acquisitions. The Legacy Lens: Transcending the Exit Succession is not simply about exiting the business or passing on shares. It’s about defining and preserving a legacy that goes beyond spreadsheets and valuations. Owners in the BBH survey expressed deep commitments to continuity. They desire to see family harmony, company culture, employee loyalty, and community impact. These “soft” values often matter just as much as legal or tax considerations. To preserve legacy and sustain the business beyond the current generation, owners must: Foster regular dialogue with heirs and management teams Evaluate successor readiness across leadership roles Introduce outside advisors who offer perspective and neutrality Reassess governance frameworks to support long-term strategy Document as much as possible Moreover, it’s vital to build structures that allow next-generation leaders to grow into their roles while being mentored by the outgoing generation. Done well, this approach creates both continuity and momentum. Preparing the Business, Not Just the Owner: Legal Review Succession planning is as much about preparing the business as it is about preparing the people. Even the most well-intentioned plan will falter if the company’s infrastructure, processes, or governance can’t support new leadership. Important readiness steps include: Reviewing key contracts for assignability or change-of-control clauses Establishing clear reporting systems and operational playbooks Addressing concentration risks (customer, supplier, key employee) Implementing equity compensation or retention plans for critical staff Transition planning should include a full enterprise audit of both legal and operational functions of the business to ensure the next owner or leader inherits a stable foundation. This level of diligence is especially critical in independent sponsor or search fund transactions. Buyers in these transactions often inherit businesses with informal structures or legacy systems that require immediate modernization. Business owners planning an exit should prepare for this scrutiny and invest in proactive documentation and governance to avoid valuation discounts or deal delays. This will also help the business command a higher valuation. Final Thoughts Whether your long-term vision includes a family transition, a management buyout, or a strategic sale to a search funder or family office, the path forward must be deliberate. Integrating succession with growth planning is key to protecting enterprise value and maintaining continuity. Planning early provides more flexibility, more stakeholder buy-in, and ultimately, a smoother transfer of both ownership and leadership. The BBH survey reveals a growing awareness of these issues, but this awareness must also be followed by action. Fortunately, a wide range of advisors, tools, and capital partners are now supporting business owners through these pivotal moments. Read the full BBH report here: BBH Thid Annual Business Owner Survey
November 14, 2025
Landlord Representation
VAWA Compliance: New 2025 HUD Forms & What You Need to Know
The Violence Against Women Act (VAWA) has long provided essential housing protections for victims of domestic violence, dating violence, sexual assault, and stalking. For housing providers operating federally subsidized housing programs (e.g., Section 8, public housing, and LIHTC), compliance is mandatory. In March 2025, the U.S. Department of Housing and Urban Development (HUD) released updated versions of several key VAWA forms, which now carry an expiration date of January 31, 2028. These new forms are required to be used by covered housing providers to ensure compliance with VAWA’s housing provisions. Additionally, it is worth noting that VAWA protections apply regardless of gender and are designed to promote safety, mitigate risk, and prevent displacement. Moreover, your state or local jurisdiction might have enhanced VAWA protections in addition to the federal requirements. Which Forms Changed in 2025? Form HUD-5380 – Notice of Occupancy Rights Under VAWA This document informs tenants and applicants of their rights under VAWA. The new form included several changes, such as clarifying the process and documents needed, expanding the definitions of “affiliated individual,” enhancing confidentiality provisions for housing providers to comply with, clarifying the instructions for residents, and adjustments to overall formatting for readability. Covered housing providers are required to provide Form HUD-5380 to residents or applicants at: (a) move-in; (b) with any notice of eviction or lease termination; and (c) when denying an application to a HUD-subsidized unit or program. To safeguard ongoing compliance, covered housing providers must use this updated form and ensure staff are trained on proper use and distribution. If you’re unsure whether your forms are current or need help implementing them, reach out for legal guidance. Form HUD-5381 – Model Emergency Transfer Plan (Optional but recommended) This form is optional, but it provides housing providers with a template for implementing emergency transfer procedures for survivors. Form HUD-5382 – Certification of Domestic Violence, Dating Violence, Sexual Assault, or Stalking This form allows survivors to self-certify their experience and request protections under VAWA. Covered housing providers are required to provide this form upon a request from a resident and/or when a survivor seeks an emergency transfer or protection from eviction. Form HUD-5383 – Emergency Transfer Request Regardless of whether a resident is complying with their lease agreement, this form allows residents who qualify as victims under VAWA to request an emergency transfer to another unit for safety reasons. Residents can request such a transfer if they reasonably believe staying in the current unit poses an imminent threat to their safety and/or if a sexual assault occurred at the property within the past 90 days. Covered housing providers are required to keep this information confidential and separate from other documentation in the tenant’s resident file. Form HUD-5384 – Emergency Transfer Data Collection Form This new form introduces a data tracking component for housing providers, which expects property managers to maintain accurate records for compliance audits. In essence, this form seeks information on emergency transfer requests and outcomes to help HUD monitor response times and identify barriers to safety. Why These Updates Matter & Key Takeaways: Using outdated forms can jeopardize compliance and expose housing providers to risk. The updated forms reflect legislative changes from the VAWA Reauthorization Act of 2022 and are designed to streamline provider responsibilities. Immediately replace outdated HUD VAWA forms with the 2025 versions Ensure staff are trained on when and how to distribute these forms (even to applicants) Maintain the utmost confidentiality when handling VAWA-related requests from residents Update your leasing policies to align with VAWA protections Use translated versions of the HUD VAWA forms for applications and residents who use a primary language other than English
November 13, 2025
Family Law
Preparing for the Tough Questions: Cross-Examination in Divorce Litigation
Divorce proceedings can be emotionally charged, and one of the most stressful moments for anyone involved in divorce proceedings is cross-examination. Whether you are negotiating child custody, spousal support, or asset division, your testimony can significantly impact the outcome. Proper preparation will help you remain calm, focused, and effective under scrutiny. Cross-examination is a tool your spouse’s attorney will use to test your credibility, challenge your statements, and highlight inconsistencies. It is not a conversation; it’s structured legal questioning aimed at uncovering facts that support their case. As you prepare to be crossed-examined, clients are often advised to review the following list: : Review all prior statements, including financial disclosures, deposition transcripts, affidavits, and interrogatories. Ensure you are familiar with the facts, dates, and numbers — don’t rely soley on memory. Be honest. Inconsistencies or exaggerations can be used against you. Listen carefully to each question before answering. Pause to think before answering. Maintain a neutral tone and avoid defensive or argumentative responses. Avoid volunteering extra information. If a question is unclear, ask for clarification. Stick to “yes,” “no,” or brief factual responses, when possible. Your lawyer can simulate cross-examination and help you practice and anticipate tricky questions. Role-playing allows you to practice staying composed under pressure. Focus on maintaining consistency and avoiding emotional reactions. Don’t guess or speculate. If you don’t know the answer, it’s acceptable to say, “I don’t know” or “I don’t remember.” Avoid getting trapped by hypothetical questions that could misrepresent your situation. Dress appropriately and maintain good posture. Avoid fidgeting, eye-rolling, or sighing, which can be interpreted negatively. Show respect to the court, opposing counsel, and yourself. Preparation is the most powerful tool in cross-examination. By reviewing your statements, practicing with your attorney, and staying calm under pressure, you can confidently navigate the process and protect your rights in a divorce case.
November 12, 2025
Family Law
Dividing Private Equity the Smart Way: Protecting Both Sides in Divorce
Private equity assets add a layer of complexity to divorce that goes beyond the standard division of bank accounts and retirement plans. These interests often involve tiered payout structures, vesting schedules, capital commitments, and unpredictable future value. When a spouse holds interests in private equity funds or serves as a General Partner (GP), Limited Partner (LP), or carried-interest recipient, courts and lawyers have to navigate issues that blend valuation, tax, compensation, and property law. The first step is understanding exactly what the spouse owns. This can include limited partnership interests, general partner interests, profits interests, co-investment rights, or carried interest. Each behaves differently and may be treated as either compensation, an ownership stake, or a hybrid. Courts look at when the interest was granted and what it compensates. If the interest was earned for work performed during the marriage, some or all of it may be considered marital property. Interests granted before the marriage, or tied to nonmarital contributions, may be partially or entirely separate. Many cases involve a mixed classification that requires a detailed analysis of vesting, performance hurdles, and labor contributed during the marriage. Unlike publicly traded securities, private equity interests rarely have a clear fair market value. Many are illiquid, subject to complex waterfall structures, or highly dependent on future fund performance. Divorce lawyers typically bring in valuation experts familiar with fund economics. These experts may use discounted cash flow models, scenario analysis, or simulations to estimate a present value. Because private equity interests are hard to value and even harder to divide directly, courts and attorneys often use one of two approaches. Offset Method The spouse who holds the private equity interest keeps it, and the other spouse receives an equivalent share of different assets. This is common when the interest can be valued with reasonable confidence. If/When Distribution Method If the value is too uncertain, the parties agree that future distributions will be shared if and when they occur. This keeps the non-titled spouse from receiving a payout on an asset that may never materialize. Both methods should address tax consequences, capital calls, and potential clawback obligations. Most private equity agreements restrict transfers and do not permit a spouse to become a partner or member. Divorce decrees typically circumvent these restrictions by requiring the titled spouse to remain the legal owner while sharing future distributions pursuant to court order or settlement. If future distributions are to be shared, the agreement must include reporting requirements. These often include providing K-1s, capital account statements, distribution notices, and annual fund updates so both sides can monitor the interest over time. Private equity interests demand careful handling in divorce because they blend compensation, investment value, and long-term risk. When properly analyzed and structured, they can be divided in a way that protects both parties while avoiding unintended tax or financial consequences. The key is early identification, experienced valuation support, and a settlement structure that reflects the realities of private equity economics.
November 11, 2025
Construction
USDOT’s Interim Final Rule: A New Era for DBE and ACDBE Certifications
Update (December 2025) New developments have occurred regarding USDOT’s Interim Final Rule. On December 2, the Pennsylvania Unified Certification Program (PA UCP) issued notice to DBE firms advising that recertification submissions are required under the new USDOT Interim Final Rule. To be considered for recertification, firms must submit updated Personal Net Worth statements, 2024 tax information, and a Personal Narrative demonstrating individualized social and economic disadvantage. All required materials must be submitted by February 5. Firms that do not timely submit complete documentation risk decertification. In 1983, Congress enacted the U.S. Department of Transportation (USDOT) Disadvantaged Business Enterprise (DBE) Program to ensure equitable access to federal contracts involving highway, transit and aviation projects for small businesses owned and operated by socially and economically disadvantaged individuals, including women and members of specific racial and ethnic minority groups. Last month, USDOT issued an Interim Final Rule (IFR) on October 3, 2025 that fundamentally changes how firms qualify as DBE and Airport Concession Disadvantaged Business Enterprises (ACDBE). The rule, which came into effect on the date of its publication, eliminates race- and sex-based presumptions of disadvantage — requiring every applicant and currently certified firms to prove social and economic disadvantage on an individual basis. These changes affect all firms certified or seeking certification under the DBE and ACDBE programs, including thousands of women- and minority-owned small businesses that have historically relied on the presumption of disadvantage. Why the Rule Was Issued The IFR, effective October 3, 2025, follows a series of court rulings and executive orders directing agencies to remove race- and sex-based classifications from federally funded programs. In Mid-America Milling Co. v. U.S. Department of Transportation, the U.S. District Court for the Eastern District of Kentucky held that USDOT’s use of such presumptions likely violate the equal-protection component of the Fifth Amendment. USDOT and the Department of Justice agreed with the court’s conclusion and determined that the DBE and ACDBE programs must now operate in a race- and sex-neutral manner to be consistent with constitutional requirements. Key Changes Under the Interim Final Rule The IFR amends 49 CFR Parts 24 and 26 to remove race- and sex-based presumptions from the definitions of “socially and economically disadvantaged individual.” Instead, each owner applying for or maintaining a firm’s DBE or ACDBE certification must now: Demonstrate disadvantage on a case-by-case, individual basis — based on personal experiences and circumstances within American society, without regard to race or sex Submit a personal narrative establishing disadvantage by a preponderance of the evidence — describing specific experiences of economic hardship, systemic barriers, or denied opportunities in education, employment, or business Explain the resulting economic harm, including type and magnitude — illustrating disadvantage relative to similarly situated, non-disadvantaged persons Attach a personal net worth statement—and any other relevant financial information Immediate Program Wide Impacts USDOT has estimated that roughly 41,000 firms nationwide will need to be reviewed, and each state must assess and revise its DBE goal methodology for approval. Many state DOTs have already paused goal setting and tracking while UCPs develop a process for reevaluation. Until each UCP completes its reevaluation process, recipients of federal transportation funding may not set DBE contract goals, and participation by existing DBEs cannot be counted toward overall goals. Following the reevaluation of all DBEs in the state, recipients must assess, update, and obtain approval of their DBE goal methodology. Importantly, contracts that have already been awarded are not impacted, and the DBE goals stated within those contracts remain applicable. Additionally, the termination provisions outlined in 49 CFR § 26.53 continue to apply, prohibiting contractors from terminating a DBE firm without good cause. However, all contracts that have not yet been awarded must be amended to zero out the DBE goal. Why This Matters The DBE and ACDBE programs have long been essential to ensuring fair access to public transportation project contracts. But the shift from group-based presumptions to individualized proof introduces significant uncertainty and administrative burden for small businesses. Firms that do not respond promptly, or that submit insufficient documentation, risk losing certification and access to set-aside opportunities until they can requalify under the new standards. What DBE and ACDBE Businesses Should Know While the rule applies to all DBE and ACDBE firms, female- and minority-owned businesses will feel the most immediate impact. Under prior regulations, women and certain minorities were presumed to be socially and economically disadvantaged. That presumption no longer exists. As such, to maintain certification, owners must now prepare a detailed personal narrative and financial disclosure demonstrating disadvantages based on lived experience not related to race or gender. For many owners, this will mean documenting: Specific professional or economic barriers encountered Instances of unequal access to capital or contracting opportunities Measurable economic impact of barrier encountered Mid-Atlantic State Responses The IFR requires that each state’s UCP to reevaluate all certified firms “as quickly as practicable.” All DBE firms must complete the reevaluation process in the jurisdiction of their original certification (i.e. the firm’s home state). Below is a brief update from key Mid-Atlantic states. Delaware DelDOT has provided notice stating that all currently certified DBE firms have lost their certification and must undergo reevaluation to remain in the program. In its communication, DelDOT clarified that the IFR does not affect existing contracts, and agencies are not required to recompete or reopen current awards. Maryland With over 10,000 certified firms — nearly 25% of the national total — MDOT, serving as the state’s UCP, has expressed its desire to move swiftly in recertifying and reassessing its DBE program. In fact, MDOT has already initiated the process of securing expedited procurement to hire external reviewers to support the reevaluation process. New Jersey The state’s UCP has issued a notice outlining requirements and prohibitions under the IFR; however, no specific deadlines or guidance regarding the reevaluation process is provided. Moreover, all interstate firms will be delisted from the NJUCP directory and must complete the reevaluation process in the jurisdiction of the firm’s original certification. New York While there is no conspicuous notice of the IFR on the state’s UCP websites, MTA — one of New York’s Certifying Partners — has revised the DBE Participation Provisions within its General Provisions for Design-Build Contracts. These revisions indicate that firms will be recertified through an application process, followed by a reassessment and resetting of the overall DBE goal. Only after this process will the need for new contract-specific goals be determined. Pennsylvania A notice has been sent to DBE firms regarding the IFR requirements; however, no deadlines have been provided for the reevaluation process. The Pennsylvania UCP has also announced that it is not currently accepting any new applications. Southeastern State Responses Georgia The Georgia UCP (GUCP) has issued a notice to DBE firms regarding the IFR’s requirement to demonstrate individual social and economic disadvantage. In its communication, GUCP stated that it is seeking further clarification and will continue to update DBE firms regarding certification status and recertification procedures once additional guidance is received. North Carolina The state’s UCP has acknowledged the IFR through formal notice but has not provided further communication regarding its specific requirements or prohibitions. No deadlines or guidance related to the reevaluation process have been issued at this time. South Carolina SCDOT has announced that all currently certified DBE firms have temporarily lost their certification and must undergo reevaluation to remain in the program, noting that the previous decertification procedures found in 49 C.F.R. § 26.87 do not apply. SCDOT also indicated that it is working expeditiously to complete the reevaluation process and will issue further guidance, including the required documentation, to DBE program participants. How DBE and ACDBE Businesses Can Prepare Affected businesses should begin preparing now to ensure they remain eligible and avoid decertification during the reevaluation process: Collection Documentation – Gather records reflecting challenges obtaining financing, discrimination in lending or contracting, or other business obstacles. Draft a Comprehensive Personal Narrative – Explain, in detail, how personal and economic barriers have impacted business growth. Review Financial Information – Confirm your Personal Net Worth statement is current and accurate. Consult Counsel – Experienced legal counsel can help interpret new requirements, structure the narrative, and ensure compliance with 49 CFR § 26.67 and related provisions. How DBE and ACDBE Businesses Can Be Proactive While the IFR impacts federally funded projects, small and minority business certifications remain active and relevant for state-funded projects. Unlike DBE certification, which is governed by federal regulations, small and minority business certifications are administered under state specific guidelines. Firms undergoing DBE reevaluation may already hold certification as a small or minority business within their certifying state. For instance, Maryland’s UCP evaluates all DBE applicants during the certification process to determine their eligibility for the small business program. Generally, a firm will qualify as a small business if it does not exceed the established size and revenue thresholds. In addition, some states are transitioning their DBE firms to the Small Business Administration’s 8(a) program which certifies socially and economically disadvantaged small business owners seeking to expand in the federal marketplace. Certification under the 8(a) program allows firms to compete for sole-source and competitive set-aside contracts. The program authorizes up to $7 million for acquisitions assigned NAICS codes and $4.5 million for all other acquisitions. Similar to the DBE program, to be eligible for the 8(a) program 51% of the firm’s ownership interest and control of the firm must be in a socially and economically disadvantaged individual whose personal net worth is no more than $850,000. As the landscape continues to shift, DBE and ACDBE firms are encouraged to review their certifications and evaluate alternative certification programs that offer greater stability and alignment with their long-term business goals.
November 10, 2025
Construction
Pennsylvania Supreme Court Decision Supports Legislative Finality Created by Statute of Repose
In a welcome development for Pennsylvania’s construction industry, the Pennsylvania Supreme Court’s recent decision in Gidor v. Mangus reinforces the integrity of legislatively adopted Statutes of Repose. On October 23, 2025, the Supreme Court held that Section 7512 of the Pennsylvania Home Inspection Law constitutes a one-year statute of repose — eliminating the right to bring a lawsuit against a home inspector. The decision signals continued judicial support for the legislative adoption and intent behind statutes of repose. This decision arrives at a critical point, as two high-profile cases involving the Construction Statute of Repose — Aloia v. Diament and Clearfield County v. Transystems — are pending before the Pennsylvania Supreme Court. Each case threatens to erode the protections afforded by the 12-year Construction Statute of Repose, 42 Pa. C.S. §5536. In Aloia, plaintiffs argue that alleged violations of the building code toll the statute of repose. While the County in the Clearfield County appeal asserts that the ancient doctrine of nullum tempus exempts public entities from the Construction Statute of Repose. The Gidor court’s affirmation of the 1-year Statute of Repose is particularly relevant to the construction industry because the court’s decision heavily relies on its prior decisions interpreting the Construction Statute of Repose. The court emphasized that, because the statutory clock starts at a definite event independent of injury or discovery and is not subject to equitable tolling, the statute extinguishes any claim. Critically, the repose period upheld in Gidor was just one year from the date a home inspection report was delivered. The court’s reasoning underscores the judiciary’s willingness to enforce clearly defined legislative statutory repose periods. Moreover, the court’s acceptance and approval of a one-year statute of repose in Gidor lends judicial credibility to legislative efforts such as Senate Bill 399, which seeks to shorten the Construction Statute of Repose period to six years. By reaffirming the distinction between statutes of limitation and repose, Gidor strengthens the argument advanced in amicus briefs filed by Offit Kurman on behalf of leading A/E/C associations: the repose period must remain a firm and predictable legislative boundary eliminating all claims. If the Supreme Court follows its reasoning in Gidor, we anticipate that the Court will preserve the 12-year Construction Statute of Repose’s essential function of providing finality, reducing indefinite liability, and protecting the architects, engineers, and contractors from stale claims. Law Clerk Robyn St. Hilaire provided valuable insight and contributed to this article.
November 5, 2025
Mergers and Acquisitions
Bridging the Gap: The Art of Communicating with First Time Sellers
It is estimated that 75 million baby boomers could retire by 2030. Many of these boomers have built successful businesses over decades, and they are now ready to sell as they move into the next phase of their lives. This is leading to a rise in M&A activity involving first-time sellers who are financially sophisticated and emotionally invested in their business, but they have not experienced the pace, process, or complexity of an acquisition. When this kind of first-time seller is involved, there can be some tension if buyers bring in large law firms who utilize their standard “big deal” approach. This specific client needs more clarity, connection, and practical guidance as opposed to layers of process. The Process Can Overwhelm the Person When a large law firm comes in on the buyer’s side, they bring an undeniable level of horsepower to transactions. But the same approach taken for billion-dollar deals isn’t necessarily a fit for the sale of a closely held business, and it can lead first-time sellers to feel sidelined and overwhelmed by complex jargon, unexpected costs, or rigid workflows. It can also lead the seller’s counsel, who they have likely worked with for years, to feel out of step with the tempo and expectations of the larger firm. The result is often an erosion in goodwill between the buyer and seller before the deal closes. The Advantage of the Middle-Market and the Art of Adapting This significant disconnect has created an opportunity for middle-market firms that understand both sides of the table. Middle-market firms offer sophisticated, deal-tested counsel who still prioritize communication and trust. They are better able to breakdown the jargon of big firms into advice business owners can understand and act on, helping these first-time sellers to feel informed and empowered, rather than frustrated and intimidated. But bridging this kind of a gap isn’t just about legal skill. It also requires a level of emotional intelligence and the ability to recognize when a seller needs context or reassurance. It also requires an understanding that every negotiation does not necessitate a 100-page response. There is an art to adapting the process to the client’s needs and experience level without compromising the quality of the transaction. The Importance of Nuance There is no one size fits all approach to transactions. They are all different, and they all require a nuanced approach. If a first-generation business owner is selling their life’s work to a PE firm, there is a very different set of concerns involved than if a serial entrepreneur is on their fifth exit. It is critical that counsel knows how to balance structure with flexibility and sophistication with accessibility, meeting clients where they are as opposed to forcing the client into a transactional template. Applying this kind of nuance to transactions can lead to a smoother process and a collaborative closing. There is significant value in the firms that can operate in the middle. They bring the kind of insight and technical strength expected from big firms, but they also have the responsiveness and reliability expected from small firms. As the market becomes further shaped by generational transitions and first-time sellers parting with their closely held businesses, the balance that middle-market firms bring to the table is more than just a competitive advantage. It is what gets this kind of deal done.
November 4, 2025
Labor and Employment
Independent Contractor Misclassification: Labels Don’t Shield Liability, Says Eleventh Circuit
In a decision that underscores the importance of substance over form in employment relationships, the Eleventh Circuit recently reaffirmed that contractual labels alone do not determine whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The case, Galarza v. One Call Claims, LLC, involved three insurance adjusters who sued for unpaid overtime, alleging they were misclassified as independent contractors. The plaintiffs had signed independent contractor agreements with One Call Claims, LLC (OCC), which staffed adjusters for Texas Windstorm Insurance Association (TWIA). Despite the agreements, the adjusters worked full-time for TWIA for nearly two years, were restricted from working for other carriers, and had no control over their pay or hours. TWIA dictated how they performed their work—even after transitioning them to remote roles. The Eleventh Circuit applied the six-factor economic reality test from Scantland v. Jeffrey Knight, Inc., emphasizing that no single factor is dispositive. Instead, the focus is on the worker’s economic dependence on the company. The court found that five of the six factors weighed in favor of employee status, reversing the trial court’s summary judgment and sending the case to a jury. Key takeaways from the decision include: Control Matters: The companies’ significant control over the adjusters’ work and schedules undermined their classification as independent contractors. Economic Dependence Is Central: The court stressed that the ability to deduct expenses or maintain licenses does not negate economic dependence. Indefinite Engagements Raise Red Flags: The long-term, exclusive nature of the relationship suggested an employment arrangement. Essential Services Tip the Scale: The adjusters’ work was integral to the companies’ operations, further supporting employee status. The court’s conclusion was striking: “If a jury could not reasonably find that the workers were economically dependent under these facts, it’s not clear that a professional working from home could ever establish economic dependence under the FLSA.” What Employers Should Do This case serves as a cautionary tale for employers. Simply labeling a worker as an independent contractor does not insulate a company from liability. Employers must evaluate the actual working relationship using the economic reality test. Misclassification can lead to substantial legal exposure, including back pay, penalties, and litigation costs. Employment counsel should guide clients in conducting regular audits of contractor relationships, ensuring that classifications align with the realities of the work performed. When in doubt, err on the side of caution — and compliance.
November 3, 2025
Estates and Trusts
Spotlight on Intestacy: Liam Payne and the Importance of Planning Ahead
When One Direction's 31-year-old band member, Liam Payne, fell from an Argentinian hotel balcony to his tragic death in October 2024, he left his then 8-year-old son, Bear, fatherless. However, as the sole heir to his father's fortune, the young grade-schooler had instantly and unwittingly become the playground's "most eligible bachelor." Fortunately, it seems, Bear's "mum," Girls Aloud singer/actress Cheryl Tweedy, has, together with Payne's former music lawyer, successfully secured court-appointed co-administrative control over Payne's estate and with it, Bear’s inheritance. For her part, although Tweedy has remained out of the public spotlight for most of the past year since Payne's untimely death, Tweedy has publicly been quoted as intending to block her son's access to the money until he turns 25 and possibly doling out portions of it in the years thereafter. These are commonly used provisions in trusts intended to protect minors and young adults from themselves. Tweedy is credited with recognizing that unfettered access to Bear’s inherited wealth any earlier would likely be problematic for him in numerous ways, including making him a target for unscrupulous sycophants or blowing it all on any combination of vices (the whole "male frontal lobe not fully closing 'til age 25" reality). While Bear is not expected to want for anything, Tweedy is generally credited with wanting Bear to grow up appreciating the "value of a dollar" (or an English pound, in this case). Commendable, if only due to its apparent rarity these days, for a celebrity to espouse such a grounded outlook. Brava, Ms. Tweedy. Brava. But, if it were truly this easy, why do any estate planning at all? Even assuming the best of intentions of a surviving parent, how could lack of planning, and particularly lack of a trust over one's assets, go completely sideways? Using young Bear Payne’s situation as a guide, let us begin to count the ways: Probate and Taxes. Intestacy necessitates probate, which can be a costly, time-sucking hassle, and delay. Also, depending on the amounts involved and the jurisdiction, the resulting tax consequences could be substantial, especially compared to a potentially tax-free disposition had a simple trust transfer been documented while Payne was alive. Court-appointed estate administrator(s). You cannot presume the person or people you would want or expect to be in charge will actually be appointed by the court. It is not a foregone conclusion that anyone, in particular, will be appointed. In any event, unscrupulous relatives, "friends," and/or advisors may tie things up in costly legal proceedings, vying for access and control (and the enticement of a not-insignificant paycheck for their services)! No creditor protection. Without the typical spendthrift protections of a trust, creditors of Bear will be able to reach the inheritance assets even if Bear’s mum has withheld the funds from Bear to try to protect Bear from himself. Bear the heir. Bear, himself, is empowered to insist on distributions as soon as he comes of age. As if a teenager needed any other excuse to seek early emancipation! Unless a formal guardianship or conservatorship is imposed (for reasons unrelated to his inheritance rights), Bear will be entitled to insist on receiving all of it, regardless of what his mum thinks is best for him at that point. Lest one jump too quickly to buy into the guardianship/conservatorship option, I caution one to look no further than the Brittany Spears saga to appreciate why this is not necessarily the way to go. Co-fiduciary deadlock. For now, at least, there have been no public reports of any disagreement between the co-fiduciaries. As the ongoing litigation between Jimmy Buffett’s co-fiduciaries reflects, even hand-picked equals can find themselves deadlocked. The single-most important takeaway from Liam Payne’s situation is that it is never too early to plan. My first boss, a former Army flag officer, counseled me to always have a back-up plan in case one under our “command” was “hit by a bus” and didn’t make it into work (I had just been promoted, and the bookkeeper and payroll manager reported to me). In the estate planning context, lack of planning means leaving matters to chance and risking both your loved ones and the wealth you hope to leave behind for them. Refusing to address end-of-life decisions can be a very costly choice. And make no mistake, not deciding is still deciding. As the classic rock line goes: “If you choose not to decide, you still have made a choice.” (Rush, Freewill, 1980). Cheryl 'will block Bear from Liam Payne's inheritance' until he reaches major milestone, Metro.co.uk
October 30, 2025
Bankruptcy
Global Capital, Local Law: Navigating the Risks of U.S. Bankruptcy
When raising capital in the U.S., owners and directors of foreign companies have to be cognizant of how restructuring can be used by creditors to displace management and shareholders. A recent decision by the U.S. District Court for the Southern District of New York, which upheld a bankruptcy court’s order imposing sanctions on former owners and directors of Eletson Holdings Inc. (“Eletson”), underscores the importance for company leadership, particularly those facing financial distress, to fully understand the scope of obligations under U.S. bankruptcy law. Eletson was the parent of a Greek-based international gas shipping enterprise operating a fleet of 18 medium- and long-range oil and gas tanker vessels carrying a wide range of refined petroleum products and crude oil. The business was operated through companies that were closely held by several related Greek family groups, each holding equity through offshore trusts. The three majority shareholders of Eletson, each holding a 30.7% interest, included the family of Laskarina Karastamati, controlled Lassia Investment Company (“Lassia”), the family of Vassilis Kertsikoff, controlled Family Unity Trust Company (“Family Unity”), and the family of Vassilis Hadjieleftheriadis, controlled Glafkos Trust Company (“Glafkos”). Each was organized under the laws of Liberia. The minority shareholders of Eletson were Elafonissos Shipping Corp. and Keros Shipping Corp. During the Chapter 11 proceedings, the board of directors of Eletson consisted of 1) Vassilis Hadjieleftheriadis, 2) Konstantinos Hadjieleftheriadis, 3) Ioannis Zilakos, 4) Emmanuel Andreoulakis, 5) Vassilis Kertsikoff, 6) Eleni Giannakopoulou, 7) Panagiotis Konstantaras, and 8) Laskarina Karastamati. Eletson was forced into bankruptcy in March 2023 when three creditors (the “Petitioning Creditors”) commenced involuntary Chapter 7 proceedings against the company and two affiliates (Eletson Finance (US) LLC and Agathononissos Finance LLC) (the “Debtors”). In re Eletson Holdings Inc. et al. (“Bankruptcy Proceeding”), No. 23-10322 (Bankr. S.D.N.Y.) In September 2023, the case was converted to a voluntary Chapter 11 proceeding. The Petitioning Creditors and the Debtors submitted competing reorganization plans. Under the plan proposed by the Debtors, the Greek families who held a majority interest in Eletson prior to bankruptcy, committed to provide funds to the entity in exchange for their continued control. The creditors, by contrast, promised to contribute $53.5 million in cash to Eletson through an offering of equity rights to holders of unsecured claims, which would be backed up by a commitment amount by one of the Petitioning Creditors of the same value. After contentious fights and lengthy hearings, the bankruptcy court found that the plan proposed by the Debtors was unconfirmable and not feasible and approved the creditors’ recapitalization plan. The Debtor’s plan was unconfirmable because it did not contribute new value: (1) the supposed new value contribution was not new because it came from inside the Debtors’ capital structure, (2) the contribution was contingent upon a final award in pending arbitration proceedings, and (3) there was no adequate proof that the funds committed by the majority shareholders would be available over such a long-time horizon. The $37 million in new shareholder value proposed, even if available, did not provide sufficient funding to make all required payments on the effective date of the plan. The Bankruptcy Court ruled in favor of the creditors’ plan of reorganization (the “Plan”) because it provided sufficient funding to meet all effective date obligations, and because the creditors had escrowed $43.5 million in cash to fund the plan. On October 25, 2024, the Bankruptcy Court confirmed the Plan proposed by Petitioning Creditors (the “Confirmation Order”). The Confirmation Order vested control of Eletson in the Petitioning Creditors rather than the three Greek families that had previously controlled the company. On the date the Plan was to become effective, “all property in each estate” vested “in Reorganized Holdings, free and clear of all liens, claims, charges or other encumbrances.” Plan § 5.2(c). Section 5.4 of the Plan provided that all notes and stock and other documents evidencing or giving rise to claims against an interest in debtors were canceled and the obligations of the debtors thereunder or in any way related thereto were released, terminated, extinguished, and discharged. Plan § 5.4. The members of the board of directors of each Debtor, prior to the date the Plan went into effect, were “deemed to have resigned or otherwise ceased to be a director or manager of the applicable Debtor.” Plan § 5.10(c). Eletson Holdings was deemed to be Reorganized Holdings, and the equity of the old Eletson Holdings was vested in its new owners. Reorganized Holdings was to be managed by a new board consisting of three directors: (i) one director selected by the Plan Proponents, (ii) one selected by the Plan Proponents but subject to the consent of the Unsecured Creditors’ Committee, and (iii) an independent director selected by the Unsecured Creditors Committee. The Confirmation Order provided: “The Debtors and the Petitioning Creditors and each of their respective Related Parties were directed to cooperate in good faith to implement and consummate the Plan.” Confirmation Order ¶ 5(i). Furthermore, the Confirmation Order mandated: “Upon entry of this Confirmation Order, all Holders of Claims or Interests and other parties in interest, along with their respective present or former employees, agents, officers, directors, principals, and affiliates, shall be enjoined from taking any actions to interfere with the implementation or consummation of the Plan or interfering with any distributions and payments contemplated by the Plan.” The Plan became effective on November 19, 2024 (the “Effective Date”), 14 days after it was entered. Thus, on the Effective Date, the board members of the former Debtors were deemed to have resigned, the new board of directors was deemed appointed, the equity interest in the former holders was extinguished, and the equity interest was vested in the new holders. Following the Bankruptcy Court’s confirmation of the Plan, but before the Plan was effective, Elafonissos Shipping Corporation and Keros Shipping Company, the former minority shareholders of Eletson, sought relief from a court in Greece to appoint a temporary board to manage the company while the Confirmation Order was being appealed and with the specific mandate to obtain judicial protection, to support an appeal already filed against another order of the United States Bankruptcy Court for the Southern District of New York, and to seek other remedies and means provided by law, before the Greek Courts, in order to challenge the Confirmation Order. On November 12, 2024, the Greek Court issued an ex parte interim order replacing certain resigning directors of Eletson Holdings and appointing “Provisional Appointees” in their stead to join the remaining directors to form a provisional board of Eletson Holdings. On November 25, 2024, reorganized Eletson Holdings filed an emergency motion seeking an order imposing sanctions on Eletson’s former shareholders, officers, directors, and counsel because their actions outside of the United States frustrated the ability of the new owners of Reorganized Holdings to conduct business as contemplated by the confirmed plan. See In re Eletson Holdings Inc., Case No. 23-10322, Dkt. 1268. The Bankruptcy Court held a trial on the sanctions motion on January 6, 2025, which resulted in an oral decision granting the sanctions motion, followed by an accompanying order on January 29, 2025. Dkt. 11396, 1402. Notwithstanding that order, Eletson’s former management continued to fail to comply with their obligations under the Plan. The Bankruptcy Court had to issue orders enforcing the Plan and directing Eletson’s former shareholders and management to cooperate. In March 2025, the Bankruptcy Court found the legacy Eletson board of directors in contempt and ordered a $5,000 per day fine until they obeyed the Plan’s requirements. Id., Dkt. 1536, 1537. On July 2, 2025, the reorganized Eletson debtors obtained a court order granting a motion for attorneys’ fees and costs after asserting that Eletson’s former majority and minority shareholders, among others, treated the Bankruptcy Court’s authority and the confirmed Plan with contempt and “inflicted direct and measurable harm” by, among other things, forcing the reorganized company to seek enforcement of the confirmation order in Liberia and Greece. Dkt. 1712. The Bankruptcy Court increased the sanctions with respect to certain persons to $10,000 per day. Dkt. 1716. The former majority and minority shareholders appealed the orders imposing sanctions. In its September 26 decision, the U.S. District Court affirmed the Bankruptcy Court’s order. The Eletson Holdings illustrates how U.S. bankruptcy law empowers creditors with robust tools to restructure distressed entities, even to the point of displacing entrenched management and shareholders. The court’s willingness to enforce its orders across borders, impose sanctions, and penalize noncompliance underscores the importance of understanding the full scope of creditor rights and judicial authority in U.S. insolvency proceedings. For international businesses, especially those with complex ownership structures, the lesson is clear: cross-border capital raising demands not only financial sophistication but also a deep appreciation of the legal landscape and the risks of losing control.
October 29, 2025
Commercial Litigation
D.C. District Judge Narrows Case Between E-Commerce Giants, Temu and Shein
In December 2023, Temu (operated by Whaleco Inc.), a general e-commerce platform specializing in drop-shipping resale goods sold at deep discounts, filed suit against Shein, a similarly structured fast-fashion clothing manufacturer. In their suit, Temu alleged that Shein perpetuates a "mafia-style" scheme to monopolize the fast-fashion market through supplier intimidation, trade secret theft, and abuse of the Digital Millennium Copyright Act. Temu claimed that Shein coerced Chinese suppliers, who provide the overwhelming majority of Temu’s inventory, into filing over 33,000 allegedly baseless copyright takedown notices on Temu’s website in order to disrupt Temu's operations. Shein countersued in August 2024, accusing Temu of encouraging sellers to infringe intellectual property rights, stealing Shein's trade secrets and product designs, and operating a counterfeiting-reliant business model. This battle between Shein and Temu reached a critical moment on September 30, 2025 when a district judge in the District of Columbia dismissed key claims of plaintiff Temu, while allowing Temu’s intellectual property claims to proceed. This recent ruling proved a strategic victory for Shein. The court dismissed Temu's antitrust claims under the Sherman and Clayton Acts, ruling that the alleged anticompetitive conduct occurred in China and fell outside U.S. jurisdiction. The court dismissed Temu's trade secret claims for similar reasons, as the alleged theft of trade secrets occurred overseas. However, the court left Temu's intellectual property claims intact, finding that Temu adequately pleaded infringement of its trade dress by Shein, direct copyright infringement related to Temu’s promotional mobile phone games, and violations of DMCA Section 512(f) for knowingly issuing false copyright takedown notices. This case underscores critical challenges for companies operating in global e-commerce markets – especially as international drop shipping business models become increasingly ubiquitous. In particular, U.S. courts have faced increasing difficulty addressing allegedly anticompetitive conduct by overseas entities whose actions may still be felt in the U.S. Meanwhile, such actors continue to misuse DMCA takedown procedure to gain a competitive edge in the market rather than as an IP protection tool. As both companies face broader regulatory scrutiny worldwide (Temu recently paid $2 million to the FTC to settle INFORM Consumers Act violations), this case may influence how courts evaluate jurisdictional questions in international supply chain disputes and assess claims of DMCA abuse in competitive marketplaces.
October 27, 2025
Estates and Trusts
The Legal Playbook for Athletes Crossing Borders
The 2025-2026 NBA season started with a bang last Tuesday night. It is reported that 135 international players from 43 countries are on the court this season. When an athlete leaves their home country to pursue a professional or collegiate career in the United States, the transition involves far more than training schedules, new teammates, and different coaching styles. It is also a major legal and financial shift. Immigration status, contract terms, taxes, and estate planning all come into play — often at once. Without the proper legal documents in place, even the most talented athlete can find their career and income at risk. The first and most fundamental step is securing the right visa and immigration documentation. Most international athletes arrive under a P-1 visa, for those internationally recognized athletes competing professionally, or an O-1 visa for athletes who demonstrate extraordinary ability in their sport. Collegiate athletes often enter the U.S. on an F-1 student visa. It’s critical that the visa category matches the athlete’s intended activities, whether training, competition, or endorsement work and that both the athlete and the sponsoring organization (professional team or university) comply with the visa’s terms. Working outside the scope of a visa, such as signing sponsorships or promotional deals without proper authorization, can lead to serious tax consequences and even more dire immigration consequences, which could jeopardize the athlete’s future entry into the country. According to Michael Freestone, Immigration Attorney and Principal at Offit Kurman, “For student athletes, the evolving rules around NIL compensation add another layer of complexity. International students on F-1 visas are generally prohibited from earning income outside authorized employment, meaning many cannot legally profit from NIL activities while in the U.S. Although F-1 students can earn “passive” income, the legal grey area with NIL activities makes such income problematic and could jeopardize the student’s status. Some athletes are exploring creative solutions, such as establishing businesses in their home countries or deferring income until after graduation, but these strategies should always be reviewed by an attorney experienced in both immigration, tax and contract law to avoid inadvertent violations.” Tax compliance often catches international athletes off guard. The U.S. tax system is complex, even for citizens, and foreign athletes are often surprised to learn they may owe taxes in both the U.S. and their home country. To avoid double taxation and other pitfalls, every athlete earning income in the U.S. should consult a tax professional familiar with cross-border income and endorsement deals. Proper withholding and filing documentation are essential to prevent crushing surprises at the end of the season. Beyond taxes, every international athlete must consider basic estate and incapacity planning. A durable power of attorney allows a trusted person to manage financial or legal affairs if the athlete is abroad or incapacitated. A health care proxy ensures that someone can make medical decisions in an emergency. These documents are often overlooked until a crisis strikes, but they help prevent confusion and protect the athlete’s interests during critical and unexpected moments. Estate planning itself is another critical piece of the puzzle. Even young athletes, particularly those signing lucrative contracts or endorsement deals based on their Name Image and Likeness (NIL) rights, can accumulate substantial assets quickly. A trust can make sure those assets are managed and distributed according to their wishes. For athletes with family members abroad, these documents also help avoid international probate complications and unnecessary tax burdens. Insurance coverage deserves equal attention. Health insurance is essential, but athletes should also explore disability insurance to protect against career-ending injuries and liability insurance to cover potential risks from public appearances or endorsement deals. Life insurance can also provide long-term planning options when the athlete’s professional sports career is long over. For student athletes, the evolving rules around NIL compensation add another layer of complexity. International students on F-1 visas are generally prohibited from earning income outside authorized employment, meaning many cannot legally profit from NIL activities while in the U.S. Crossing borders to compete in the U.S. can be a career-defining opportunity, but it also requires a careful understanding of the legal landscape. From visas to trusts, international athletes benefit from assembling a strong team off the field — an immigration lawyer, a tax advisor, an insurance professional, and an estate planning attorney who understands the unique intersection of sports, law, and global mobility. A little preparation now can safeguard a lifetime of achievement later.
October 27, 2025
Mergers and Acquisitions
How Early Legal Counsel Shapes a Smooth Deal
Selling a business is never just about numbers on a page, it’s about preparation, people, and navigating the unexpected. Mike Mercurio presents a compelling series of conversations with client and former Fireline owner Anna Gavin, as she shares the real story behind her company’s sale. From the private moment she first decided to sell, to the surprise challenges of disclosure schedules, and the essential role of trusted advisors, Anna offers a rare, inside look at what the process truly feels like. Whether you’re years away from a sale or already planning one, her journey provides invaluable lessons on timing, team, and trust. In Part 6, the last of our Selling Your Business series, client and former Fireline owner Anna Gavin shares how early involvement from legal counsel Mike Mercurio and Offit Kurman set the tone for the entire transaction. Beyond just reviewing Letters of Intent (LOIs), the legal team played a crucial role in educating and mentally preparing her for complex steps ahead well before they became urgent tasks. This proactive approach helped avoid surprises and ensured the process moved smoothly, highlighting the value of strategic legal guidance from day one.
October 24, 2025
Business
The SMB Market Is Moving: Record SBA Lending, Strong Deal Flow, and What It Means for Buyers
According to the latest BizBuySell report, Q3 2025 saw 2,599 small business sale transactions. This is an 8% year-over-year increase and 11% growth over Q2. Data also shows a steady wave of buyers are seeking the right opportunity to operate and grow established businesses. In parallel, the Small Business Administration (SBA) was on pace to close $4.8 billion in loan approvals before the federal shutdown temporarily paused operations. This is the highest volume of capital deployed to small businesses in a single fiscal year. That includes over 84,400 7(a) and 504 loans, amounting to 1,600 loans a week. The appetite is clear. What’s Fueling the Market? Despite macroeconomic pressures (inflation, tariff-driven supply costs, etc.), many buyers remain focused on long-term fundamentals. The median sale price for a business this quarter was $320,044, down slightly from last year. This is likely a lower sale price than many Searchfunders/Independent Sponsors are targeting, but the data also shows a shorter time on market (149 days), evidencing strong buyer demand. Essential services were the leading category of sales. I work with buyers, investors, and operators on a daily basis. Here is what I am noticing: These Are Small Businesses — Not Just Small Corporations Many of these deals involve main street and lower middle market businesses, where the seller is not just the owner — they’re often the primary operator, manager, and customer relationship lead. This model can work well, but it’s important for buyers to go in with eyes wide open. These are not absentee owner businesses. These are owner-operator businesses, and unless the buyer has a plan to step into the day-to-day, or grow and install leadership, the absence of middle management may lead to significant demands on the business owner's time. Diligence Is Critical — Especially for Deals at or below $1 Million Buyers and advisors need to scrutinize: Owner reliance — Will customer or vendor relationships walk out the door post-close? Documentation gaps — Are there written contracts? Employment terms? Assignable leases? Many of these businesses fail to properly maintain documentation. Employee risk — What’s the true culture, compensation model, and turnover rate? System maturity — Is there any standardization, or will you be rebuilding ops from scratch? The Desire to Own Must Match the Business Type Entrepreneurship through acquisition (ETA) is a powerful path. But not every business fits every buyer. I always advise clients to ask: “Do I want to run this business, or do I just want to own it?” In the start-up world this is called "founder-market fit." The same concept applies here. Some deals are perfect for someone who wants to buy a job and eventually grow it. Others might require an immediate team build or capital outlay to systematize operations. It’s critical to understand the type of role you’re buying into, the basics of the industry, and what that means when operating solo or with lean support. Deals Are Happening — But You Need the Right Team This market shows real momentum. That being said, deals still require precision. That means: Structuring with SBA or seller financing Negotiating reps, indemnities, and transition terms Performing adequate due diligence Aligning tax, legal, and operational diligence Preparing to serve as both the owner and the operator (or installing trusted leadership) I work closely with searchers, independent sponsors, and advisors both during the acquisition and long after the closing. From real estate and contracts to employee issues and outside general counsel support, you need the support to manage the risk and build the value. It is exciting to see the growing volume of deals and buyer interest. But remember not to lose sight of the need to find the right acquisition target and to protect your downside.
October 23, 2025
Labor and Employment
The Warning Signs Managers Miss: How to Build a More Transparent Workplace
It's not uncommon for employers to be caught off guard by union organizing. Managers frequently describe the experience the same way: “I had no idea.” By the time a representation petition is filed with the National Labor Relations Board (NLRB), the campaign may have been underway for weeks or even months, quietly, strategically, and largely unnoticed. Understanding why management often misses the warning signs and how to build a more transparent workplace culture is critical for maintaining trust among employees. Even well-intentioned and attentive managers can overlook early warning signs of organizing activity. A lack of complaints is often mistaken for employee satisfaction, but silence can just as easily signal dissatisfaction, especially when workers feel their concerns won’t be heard or addressed. Communication gaps also play a major role: frontline supervisors are typically the first to notice shifts in morale or group dynamics, yet they may not report these patterns upward or may fail to recognize their importance. Finally, over time, routine dissatisfaction about scheduling, workload, or management style can become so familiar that it fades into the background, even as it quietly fuels collective frustration. The most effective way to avoid being caught off guard by organizing activity is to create a workplace culture where employees feel genuinely heard, respected, and valued. This requires intentional, ongoing effort. First, open and consistent communication is essential, providing employees with regular opportunities to share feedback, raise concerns, and see that their input leads to meaningful action. Second, supervisors should be trained to recognize shifts in morale and to respond effectively, since they are often the first to sense when issues are brewing. Employers can also benefit from conducting periodic check-ins, such as engagement surveys or small-group discussions, to identify recurring themes of employee dissatisfaction. When management understands the root causes of dissatisfaction and addresses them early, employees are less likely to seek outside representation. It's important to remember that employees have a legally protected right to organize and engage in concerted activity under the National Labor Relations Act. The goal isn't to suppress organizing, but to address the underlying workplace issues that may lead employees to seek union representation in the first place. By staying attentive, transparent, and proactive, employers can work towards fostering a cohesive, engaged workplace and avoiding the all-too-common refrain: “I had no idea."
October 22, 2025
Estates and Trusts
Is Your Will Valid After You Move? How Relocation Affects Your Estate Plan
According to a recent study conducted by Consumer Affairs, the average American moves 11.7 times in their lifetime. While the majority of these moves occur within the same county, or city, millions of Americans move every year from one state to another. When a client executes a will and subsequently moves to another state, an obvious concern arises: Will their will, drafted in one state, be admissible to probate in their new state of residence? The short answer is that most states will admit a will to probate that was validly executed under the laws of another state based on the Full Faith and Credit Clause of the U.S. Constitution and basic principles of comity. New York, in fact, has a statute directly on point; EPTL § 3-5.1 provides that a will executed outside the state is valid within the state if it is in writing, signed by the testator, and otherwise executed in compliance with the laws of New York, the jurisdiction in which the will was executed, or the jurisdiction in which the testator was domiciled, either at the time of execution or at the time of death. New Jersey similarly provides, pursuant to N.J.S.A. § 3B:3-9, that a will executed in compliance with New Jersey law is valid within the state regardless of where it was executed. N.J.S.A. § 3B:3-9 further provides that a will that is not executed in compliance with New Jersey law is nevertheless valid if it is executed in compliance with the state or country where the will was executed, or the state or country where the decedent was residing at the time of the will’s execution or at the time of the decedent’s death. However, there are significant differences in the probate laws of each state that can make executing a new will a prudent decision. Choice of Executor Many states only have minimal requirements for who may serve as executor of an estate. For example, New Jersey law provides that so long as an individual is 18 years old and competent, they may serve as executor of a decedent’s estate. In contrast, New York law provides, pursuant to SCPA § 707, that, a non-citizen, non-domiciliary may not serve solely as executor of an estate; a domiciliary co-executor must be appointed. Further, a person who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit, is also disqualified from serving as executor. The court may, in its discretion, also disqualify an executor who is illiterate or who has been convicted of a felony. Inheritance Tax An inheritance tax is levied on the assets received by the beneficiary of an estate. This is in contrast to an estate tax, which taxes the entire corpus of the decedent’s estate regardless of the ultimate beneficiaries. While the vast majority of states do not have a state inheritance tax, several states still maintain an inheritance tax, including New Jersey. The inheritance tax applies to bequests to relatives, including brothers, sisters, aunts, uncles, nieces, nephews, and distant relatives, as well as non-related individuals. Suppose a domiciliary of Florida (which does not have an inheritance tax) wishes to provide a bequest to their longtime romantic partner. If the bequest is made under the client’s will and they later move to a state with an inheritance tax, the client may inadvertently subject their romantic partner to a hefty inheritance tax. Thoughtful planning could be employed to avoid this result. For example, rather than leave the bequest under their will, the client may make the same gift during their lifetime. State-Level Estate Tax Another potential concern when changing domiciles is state-level estate taxes. In 2025, the federal estate tax threshold for individuals is $13.99 million. As such, very few individuals have federal estate tax issues. While the majority of states do not impose a state estate tax, a significant number of states still maintain an estate tax. Overwhelmingly, the state estate tax threshold is significantly lower than the federal estate tax threshold. For example, a will drafted in Oregon will likely have been drafted with the $1 million estate tax exemption threshold in mind. As such, married clients with relatively modest assets may employ an estate planning technique called a “credit shelter trust,” a trust designed to fully use the decedent’s remaining estate tax exemption amount at the time of their death. If the client later moves to New York, where the state estate tax threshold is currently $7,160,000, funding a credit shelter trust may no longer be necessary or even advisable. The trustees of the credit shelter trust, typically the surviving spouse and one or more independent trustees, will likely be obligated to administer a trust that may not serve a functional purpose, all the while incurring unnecessary administrative expenses. Statutory Right of Election Another potential concern is that a will drafted based on the spousal rights of one state may lead to unintended consequences if the client later changes their domicile. For example, many states permit the surviving spouse to “elect” against a decedent’s will, taking an inheritance based on a statutory formula as opposed to what is provided to them under the will. The laws of each state vary significantly in how the elective share of the surviving spouse is determined. A client may prefer to transfer the maximum amount of their assets possible to their children or other beneficiaries at their death, especially if their spouse has significant personal assets or if they are in a second marriage and have different beneficiaries than their spouse. As such, they may provide directions that their spouse is only to receive their elective share. If the client later changes their domicile, they may inadvertently provide significantly more (or less) to their surviving spouse than they may have intended, inviting conflict, ambiguity, and potentially subverting the client’s testamentary intent. Conclusion If a client moves from one state to another, they should strongly consider consulting with local counsel. This ensures that their will is valid under the new jurisdiction and continues to align with their estate planning goals. Even if the client’s will is valid and does not need to be re-executed, it is nevertheless essential that advanced directives such as health care proxies, powers of attorney, and appointments of standby guardianship are updated when moving to a different jurisdiction, as many states have statutory forms, and out-of-state forms may be rejected by health care providers and financial agencies.
October 21, 2025
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