Commercial Litigation
From Onboarding to Offboarding: Building a Turnover Plan That Works
Generally, employees are free to resign at any time. This is the core of “at-will” employment: just as an employer can decide the employment relationship can come to an end, an employee can also make that decision. However, some employees have agreements in place that set the rules for their departure and the associated process. Often, those agreements also set the rules for after the employee has departed. Those rules can include barring the employee from: disclosing confidential information obtained during their employment soliciting the former employer’s clients or customers competing with the former employer If there is no employment agreement, then an employee can leave at any time, and with or without notice. In that situation, it is crucial for an employer to plan what the transition period would look like if an employee chooses to depart. It is a best practice for employers to plan out the offboarding process when the employee is being onboarded. Employers should also prepare for the risk of litigation brought by the former employee. A former employee may choose to file claims against the employer for allegedly violating wage and hour laws, the Americans with Disabilities Act, or federal, state, or local discrimination laws. The statutes of limitations periods for those claims vary, and it becomes crucial that employers focus on keeping records related to each employee. In the event that a former employee commences a lawsuit against a former employer, it becomes crucial to look to documents and records related to the employment relationship. It is a best practice for employers to have an active system for maintaining records related to employees beyond the statutes of limitations periods. Those records may include: Emails Formal reports or complaints Work product Performance reviews Management/operations notes Payroll documents (paystubs, W-2s, 1099s) In New York, courts have strict standards for admitting these types of records into evidence at a trial. The employer’s process for creating and maintaining records is critically important for increasing the chances for success, when faced with these types of claims. One approach that many employers implement is to have an agreement ready for when an employee departs. Often, those agreements include a waiver of claims which can also be customized to the employer’s business, including terms protecting proprietary materials, such as client or customer lists, barring the soon-to-be-former employee from disclosing confidential information obtained during the employment, soliciting the former employer’s clients or customers, or competing with the former employer.
October 16, 2025
Business
Due Diligence: It's Not Just a Checklist
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 5 of our Selling Your Business series, client and former Fireline owner Anna Gavin reflects with her M&A attorney, Mike Mercurio, what it really felt like to go through due diligence and how even with a well-run, clean business, it was more intense than expected. Initially confident and prepared to tackle a long checklist, she quickly realized that diligence wasn’t just about ticking boxes it was a full-blown deep dive into every corner of the business. From finances and leases to operations and infrastructure, nothing was off limits. She compares it to an IRS audit but ten times. If you're heading into diligence, this is a must-watch for understanding what could be ahead.
October 16, 2025
Family Law
Keeping Divorce Out of the Spotlight
When a marriage ends, most people want the details to stay between them - not in headlines, social media feeds, or public court records. For high-net-worth individuals, business owners, or anyone with a public profile, privacy can be one of the most valuable assets in a divorce. Fortunately, there are proactive steps you can take to protect it. The best way to keep a divorce private is to stay out of court. Litigation creates a public record, including financial disclosures, allegations, and agreements. Mediation is a resolution option that allows both parties to work through issues confidentially with a neutral facilitator. The collaborative divorce process keeps negotiations in private meetings with attorneys and other professionals committed to settlement. Even if court filings are required, resolving most issues privately first minimizes what ends up in the public file. In high-profile cases, attorneys often include confidentiality clauses in settlement agreements. These can restrict both parties from sharing details about finances, parenting arrangements, or personal matters. If you own a business or have sensitive professional information, a non-disclosure agreement (NDA) can prevent your spouse or their advisors from revealing proprietary or reputational details. While court records are generally public, judges may seal specific documents for good cause, for example to protect children’s identities, confidential business information, or sensitive financial data. Your attorney can file a motion to seal portions of the case to limit public access. Privacy in the digital age goes beyond court filings. Avoid discussing the divorce online and ask friends and family not to share posts about it. Even seemingly harmless comments can fuel speculation or reach the media. If you are a public figure, your attorney may coordinate with a public relations professional to handle inquiries or issue a short, neutral statement that minimizes attention. Use secure email and file-sharing systems when exchanging documents with your attorney. Avoid using joint devices or cloud accounts. Anything stored or sent through a shared platform could be accessed or copied. It’s natural to confide in close friends, but word spreads quickly, especially in small or social circles. Limit detailed discussions about your divorce and resist the urge to “set the record straight.” Silence often protects more than explanation. Nothing draws unwanted attention faster than public conflict. Staying composed — even under pressure — helps preserve dignity, credibility, and privacy. The less drama you create, the less there is for others to discuss. Divorce doesn’t have to mean exposure. With the right legal strategy and careful communication, you can protect your family, your reputation, and your peace of mind while moving forward privately.
October 16, 2025
Labor and Employment
EEOC Regains Quorum and Signals Major Policy Shifts Ahead
On October 7, 2025, the United States Senate confirmed President Trump’s nomination of Brittany Panuccio as the third commissioner of the Equal Employment Opportunity Commission (EEOC). Her confirmation restores the commission’s quorum for the first time since early 2025 and gives the agency the power to issue, amend, or rescind regulations and guidance, and to take formal policy action under all major civil rights statutes. Since January, Acting Chair Andrea Lucas has led the EEOC without a quorum, which prevented the agency from adopting or revising rules and limited its ability to pursue systemic litigation or other actions requiring a majority vote. With Commissioner Panuccio joining Lucas and Commissioner Kalpana Kotagal, the EEOC now holds a two-to-one Republican majority. The agency is positioned to act quickly in reshaping key regulations and enforcement priorities consistent with the administration’s civil rights enforcement agenda. Acting Chair Lucas has stated that the EEOC will focus on restoring “evenhanded enforcement of employment civil rights laws for all Americans.” She has identified several priorities, including addressing what she describes as race- and sex-based discrimination linked to diversity, equity, and inclusion initiatives, expanding protections for religious liberty, reinforcing sex-based rights rooted in biological distinctions, and increasing enforcement in areas involving national origin and religious discrimination. The Pregnant Workers Fairness Act Will Likely Be the First Target The Pregnant Workers Fairness Act (PWFA) Final Rule, issued in 2024 under a Democratic majority, is expected to be the first regulatory area the commission revisits. Lucas has long expressed concern that the Final Rule improperly expands the phrase “pregnancy, childbirth, or related medical conditions” to include conditions such as menstruation, infertility, abortion, and menopause. She has argued that these conditions are tied to female biology and not to a specific pregnancy or childbirth, and therefore fall outside the statute’s scope. When the Final Rule was approved in April 2024, Lucas voted against it and issued a statement explaining her opposition. She stated that the regulation “fundamentally errs in conflating pregnancy and childbirth accommodation with accommodation of the female sex.” She also warned that the rule’s structure makes it difficult to sever the portions she viewed as unlawful from those she considered reasonable. In May 2025, the U.S. District Court for the Western District of Louisiana agreed in part, vacating the section of the Final Rule that interpreted the PWFA as requiring accommodations for elective abortions. The court ordered the EEOC to revise the rule, but the agency was unable to do so without a quorum. Now that a quorum has been restored, the EEOC is well-positioned to issue a revised version that reflects both the court’s order and Lucas’s interpretation of the statute. Until the revised rule is published, the current PWFA Final Rule remains in effect except for the vacated abortion provision. Employers should therefore continue to comply with existing requirements while preparing for potential revisions that may narrow the definition of “related medical conditions” and reduce the range of circumstances requiring accommodation. Anticipated Shifts in Other Enforcement Priorities The EEOC is expected to move quickly in several additional areas. The first is diversity, equity, and inclusion initiatives. The agency has already emphasized that Title VII does not recognize any “diversity” or “equity” justification for making employment decisions based on protected characteristics. Employers should expect additional technical assistance and enforcement activity aimed at programs that take race, sex, or other protected traits into account in hiring, promotion, compensation, or participation in mentorship and employee resource programs. The second is religious accommodation. Following the Supreme Court’s decision in Groff v. DeJoy, which heightened the standard employers must meet to show that a religious accommodation would create an undue hardship, the EEOC is expected to take an expansive approach favoring employees. Lucas has a long record of supporting religious liberty initiatives and is likely to prioritize this area in future enforcement actions. The third involves LGBTQ protections. The EEOC may reconsider its interpretation of Bostock v. Clayton County and revisit its 2024 harassment guidance, which included examples related to pronoun usage and access to facilities consistent with gender identity. The agency has already removed certain gender identity resources from its website, suggesting that further revisions are imminent. Finally, the restoration of a quorum means that the EEOC can again authorize systemic or “pattern or practice” litigation and file amicus briefs in significant appellate cases. While reports indicate that the commission has deprioritized cases based on disparate impact theory, employers should remember that private plaintiffs and state enforcement agencies can still pursue such claims under Title VII and related laws. What Employers Should Do Now Employers should continue to comply with the current PWFA Final Rule, but monitor developments closely as the EEOC prepares revisions. They should review their diversity and inclusion programs to confirm that participation criteria and selection practices are neutral and compliant with Title VII. Religious accommodation policies should be updated to reflect the stricter standard established in Groff v. DeJoy, and harassment and equal opportunity training materials should be reviewed for consistency with potential upcoming changes to EEOC guidance. The restoration of a quorum marks a turning point for the EEOC. With full authority restored and a clear policy direction under Acting Chair Lucas, the agency is likely to move swiftly to revise the PWFA regulations, issue new guidance on DEI and religious rights, and revisit prior positions on gender identity and sexual orientation. Employers should expect significant regulatory activity in the coming months and prepare to adapt their workplace policies and practices accordingly.
October 15, 2025
Sports Entertainment and Media
Neil Young and Backing Band Hit Like a Hurricane, Sued for Trademark Infringement by Luxury Jewelry Brand
Luxury jewelry and apparel brand, Chrome Hearts, LLC has filed a lawsuit against rock legend Neil Young and his current backing band, the Chrome Hearts, in the Central District of California, alleging that both the backing band’s use of the “CHROME HEARTS” phrase and Young's use of "Neil Young and the Chrome Hearts" on merchandise (NYTCH) generates significant consumer confusion in the market, and infringes Chrome Hearts' federally registered CHROME HEARTS trademarks. The complaint asserts five causes of action including, federal trademark infringement, false designation of origin, unfair competition under California law, and common law trademark infringement and unfair competition. Chrome Hearts, which has operated its brand since 1988, and frequently collaborates with well-known musicians, argues that Young's band’s incorporation of the exact CHROME HEARTS word mark on merchandise and promotional materials violates their federally protected rights. In support of their contention, Chrome Hearts alleges salient instances of actual confusion, strengthening the plaintiff’s allegations beyond mere hypotheticals. Per the complaint, multiple apparel vendors have already mistakenly assumed a connection between NYTCH and Chrome Hearts, strongly suggesting the consumer perception of a purported relationship between Chrome Hearts, Young, and his band. The complaint also includes images of specific instances of use of Chrome Hearts designs, or designs evocative of Chrome Hearts’ IP, by third party vendors adorning the t-shirts and other merchandise sold at Young’s concerts, even though Young’s official merchandise does not use Chrome Hearts’ registered designs. The complaint further alleges that Young and Co. had knowledge of the alleged infringement, as Chrome Hearts had sent multiple notice letters regarding this alleged misuse prior to filing suit. Chrome Hearts seeks aggressive relief including temporary, preliminary, and permanent injunctions to halt all use of the NYTCH name and Chrome Hearts marks, mandatory recall and destruction of infringing inventory, and damages including attorney fees. If Chrome Hearts’ allegations make it to trial, we will see whether Neil Young truly has a Heart of Gold, or whether this Old Man’s callous disregard for well-established intellectual property rights were left Down by the River back in 1969.
October 14, 2025
Landlord Representation
Rent Filings During the Federal Shutdown: What DC, VA & MD Landlords Need to Know
With the federal shutdown underway, landlords in Virginia, Maryland, and the District of Columbia are asking: Should we pause filings for federal workers? The short answer — no, and here’s why. As the federal government shutdown begins, landlords across the region are understandably concerned about the potential impact on tenants who are federal employees or contractors. While certain state laws provide limited relief for furloughed tenants, landlords should not pause nonpayment filings or alter their standard procedures. Virginia Under Va. Code § 44-209, tenants who are federal employees, independent contractors for the federal government, or employees of companies under contract with the federal government may be eligible for a 60-day continuance of an unlawful detainer case for rent due after the shutdown began. To qualify, the tenant must: Appear in court on the initial hearing date, and Provide written proof that they were furloughed or otherwise not receiving wages or payments due to the shutdown. Importantly, this continuance applies only when the case is for nonpayment of rent, not for other lease violations. Landlords should continue to file nonpayment cases as usual; the court will decide whether a tenant meets the statutory criteria for a continuance. Maryland Under Md. Real Property § 8-401(d), courts may stay (temporarily pause) eviction proceedings for tenants who show that: The property is their primary residence They are a federal, state, or local government employee They were involuntarily furloughed without pay because of the shutdown The stay lasts for a period the court deems reasonable, generally not exceeding 30 days after the end of the shutdown, unless a longer delay is justified. Again, this is a court-granted stay, not a reason for landlords to delay filing. Washington, D.C. D.C. previously enacted the Federal Worker Housing Relief Act of 2019, which temporarily allowed furloughed workers to request up to a 90-day stay of eviction proceedings. That law expired in early 2020 and is no longer in effect. Today, landlords should note that under the D.C. Human Rights Act, treating tenants differently based on their source of income, including federal employment, may constitute discrimination. Overall Takeaway Landlords in Virginia, Maryland, and D.C. should continue handling nonpayment matters in the normal course, allowing courts to determine whether tenants qualify for relief. Do not delay filings or make selective accommodations. Do allow the courts to apply the applicable continuance or stay provisions if a tenant demonstrates eligibility. Avoid differential treatment of tenants based on employment type or source of income. In short: issue notices, file as usual — we will handle the rest in court.
October 9, 2025
Business
The Unsung Heroes of a Successful Exit: Your Advisors
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 4 of our Selling Your Business series, M&A attorney Mike Mercurio along with client and former Fireline owner, Anna Gavin touch on the critical role that advisors, including financial advisors and Offit Kurman as legal advisors, play throughout the deal process, especially in those intense final weeks leading up to closing. From reviewing contracts and translating legalese into plain English, to offering a safe space for honest questions, Anna reflects on how her legal team became both a guide and sounding board. If you’re thinking about selling, this is a reminder that having experts in your corner isn’t a luxury, it’s a necessity.
October 9, 2025
Elder Law and Advocacy
Guiding Families and Caregivers Dealing with Dementia: Medicare’s New GUIDE Program
If you are caring for a loved one with Alzheimer’s disease or another form of dementia, you already know how overwhelming the journey can be. Between doctor visits, medications, daily routines, and the emotional toll on the family, it can feel totally overwhelming, patching together resources and support. Medicare has finally recognized just how hard this journey is for the patient and the caregiver and recently launched the GUIDE Program (Guiding an Improved Dementia Experience). The GUIDE program was developed by the Centers for Medicare & Medicaid Services, and its purpose is to provide comprehensive and coordinated care for people living with Alzheimer’s disease and dementia, while also offering much-needed support for the caregiver, who shoulders most of the day-to-day responsibilities. GUIDE was designed to improve the quality of life, enabling individuals to stay in their homes and communities longer while also reducing the strain on families by integrating medical, social, and community resources into a cohesive plan. Instead of leaving families to figure things out alone, GUIDE now offers a way to connect you with a care team and a dedicated dementia care navigator. When you enroll in GUIDE, the program starts with a thorough assessment of your loved one’s needs, as well as yours, as a caregiver. From there, the care team works to create a plan that covers both medical and day-to-day support. Every participant in the program is connected with a dementia care “navigator,” someone who helps coordinate services and create individualized care plans, which are updated as needs evolve. That plan might include help with managing medications, guidance on connecting to community services like transportation or meal programs, or even just having someone to call when you need advice. GUIDE also includes education and coaching for the caregiver so that they can feel more confident in their caregiving role. The care team also manages transitions and offers around-the-clock access to provide guidance in moments of crisis. The best part of the GUIDE program is that it is free. To participate, your loved one must be enrolled in traditional Medicare and have a formal diagnosis of dementia. They cannot already be in hospice care, living in a nursing facility, or enrolled in certain other programs, such as Medicare Advantage or PACE. GUIDE’s focus is on people living and remaining in the community, where support is often the most fragmented and where families typically struggle to navigate a confusing array of resources. What makes this program especially unique is that it puts caregivers at the center of the care plan. Medicare has long covered medical services, but this is one of the first times it has stepped in to consider long-term care and recognize and support the unpaid family members and friends who provide most of the hands-on care. GUIDE acknowledges what caregivers already know: that supporting the caregiver is essential to supporting the person with dementia. Since the program is still new, not every provider is currently offering it. To determine if GUIDE is an option for your family, you should check with your loved one’s primary care physician or reach out to your local Alzheimer’s Association chapter. While GUIDE is just beginning, it has the potential to make a real difference for families. Instead of feeling alone in the maze of dementia care, families will have someone helping to coordinate, guide, and support. For caregivers in the Sandwich Generation who are often stretched to their limits, that extra layer of help means less stress, fewer crises, and more time to focus on what really matters: spending meaningful moments with the person they love.
October 7, 2025
Labor and Employment
Government Shutdown Pauses E-Verify Operations, But I-9 Rules Still Apply
The government shutdown has closed the E-Verify program, meaning employers cannot access their E-Verify accounts. As a result, enrollment, creation of cases, running reports, and terminations are all suspended. Additionally, all customer service channels are closed. Temporary Policies The “three-day rule” for the creation of E-Verify cases is suspended, but the I-9 rules and verification requirements continue. This means that employers must still complete Form I-9 no later than the third business day after an employee starts work for pay and comply with all other Form I-9 requirements. Employers will need to assist employees with completing a paper version of Form I-9, and for any employee whose E-Verify+ cases were “Pending Employee Response” or “Ready for Review” in the E-Verify system. Any pending E-Verify mismatches during the shutdown will not accrue time towards deadlines. If a SSA mismatch has occurred, employees will have to wait until E-Verify is back in operation to correct their mismatch at the SSA. Employers are advised they may not take any adverse action against an employee whose E-Verify case is “Interim case status.” Federal contractors are advised to contact contracting officers regarding deadlines.
October 6, 2025
Business
Due Diligence in M&A Transactions: Why First-Time Buyers Should Avoid Analysis Paralysis
For many first-time buyers, the initial instinct in M&A transactions is to scrutinize every financial detail, prolonging the diligence process until they have an answer to every single question. This is certainly understandable, particularly for first-time buyers; however, this approach can often do more harm than good. The reason many deals fall apart is because they lose momentum, conditions shift over time, or sellers simply lose patience and walk away. All of these are considerable risks when the diligence process extends too long. Over-Diligence While thorough diligence is essential in any M&A transaction, when there is too much focus on financial minutiae, it can result in decision making paralysis. For first-time buyers, this can be difficult as they struggle to quantify risk and get caught in over-diligence, or a cycle of analysis and re-analysis. What can end up happening is analysis paralysis, meaning the fear of the unknown stops a deal from progressing. When buyers engage in over-diligence, it can lead to deal fatigue, where one or more parties lose interest or confidence as the process drags on for too long. When the diligence process stretches out, market conditions can also shift during the delay, or there could be internal changes such as an executive departing or a new business challenge arising. Timing is Essential In any transaction, momentum is key, and timing is everything. During the diligence process in M&A transactions, there are three ways in which timing can make a critical difference. First, timing is essential to the overall process. By keeping diligence tight, you can better ensure that the entire process will be compact and efficient. Then, there is timing of the market. When external factors such as regulatory shifts or new competitors pop up, they can start to impact deal value when a deal lingers. And finally, there is the internal timing of the target company itself. Over time, internal challenges could arise with leadership or operations that can lead to unnecessary hurdles. So, when diligence drags on too long, buyers run a significant risk of paying the same price for a business that could be fundamentally different, or even losing the deal all together. Buyers should also consider the period of exclusivity to complete diligence outlined in the LOI. That period of exclusivity can run out, and buyers could be forced to request extensions if they spend too much time focusing on incremental details. At a minimum, this can erode confidence, and at the worst, the seller could walk. Built In Protections It important for first-time buyers to understand one constant in M&A transactions: there is risk in every deal. But equally as important to understand is that you do not need to chase every risk. That is why there are built-in protections in transactions to help buyers move forward even when every minute detail is not fully uncovered during the diligence process. Buyers should work closely with legal counsel and advisors to structure agreements that include contractual provisions such as representations, warranties, indemnifications, and insurance solutions to protect parties from anything that was not uncovered. These kinds of tools are designed to balance the interests of buyers and sellers, and they allow buyers to focus their diligence efforts on those issues that affect valuation or viability of the deal, rather than wasting valuable time attempting to eliminate all risks. At the end of the day, diligence is designed to manage risk, not to eliminate it entirely. When you resist the tendency to over analyze financials, and stay focused instead, you can better maintain the necessary momentum and avoid paralysis. This leads to deals that close with confidence and are set up for long-term success.
October 6, 2025
Business
The Part of the Deal No One Warns You About: Disclosure Schedules
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 3 of our Selling Your Business series, client and former Fireline owner, Anna Gavin chats with her M&A attorney Mike Mercurio about a step that often catches sellers completely off guard — disclosure schedules. After what feels like the heavy lifting of diligence, you're suddenly asked to translate everything into a legal document that modifies your reps and warranties. It’s tedious, detailed, and critical to the final outcome. Anna shares her first-hand surprise at how complex this stage was and why having the right legal support made all the difference.
October 2, 2025
Labor and Employment
New York City Expands Minimum Pay Protections to Grocery Delivery Workers
On September 10, 2025, the New York City Council voted to override Mayor Eric Adams’ vetoes and enacted legislation extending workplace protections and minimum pay standards to grocery delivery workers. With this development, app-based couriers delivering groceries through third-party platforms, such as Shipt or Instacart, will now be entitled to the same $21.44 per hour minimum pay rate that has been in effect for restaurant delivery workers since April 2025. Background: How We Got Here New York City has steadily built out a framework for regulating app-based delivery work. In 2021, the city became the first in the nation to pass comprehensive legislation creating wage and workplace protections for restaurant delivery couriers. That law prohibited companies from charging workers fees to access their pay, guaranteed restroom access at restaurants, required companies to provide insulated delivery bags, and mandated greater transparency around pay and tips. It also authorized the Department of Consumer and Worker Protection (DCWP) to study working conditions and establish a minimum pay standard. Following DCWP’s review, the city implemented a pay floor for restaurant couriers in 2023. After scheduled increases, the minimum pay rate reached $21.44 per hour as of April 1, 2025. Until now, however, grocery delivery workers have remained excluded from those protections. The July 2025 Legislation On July 14, 2025, the City Council passed a package of bills aimed at closing that gap. In addition to extending the minimum pay standard to grocery couriers, the bills required delivery apps to build in a 10% tipping option at checkout and mandated that workers be paid within seven days of the close of a pay period. When Mayor Adams did not act within 30 days, most of the bills automatically became law on August 13, 2025. However, Adams vetoed two of the most significant measures, including those that would have extended minimum pay to grocery delivery workers. In his veto message, he expressed concern that higher labor costs would lead to rising grocery prices at a time when many New Yorkers, particularly seniors, families relying on SNAP or EBT, and individuals with disabilities, already face food insecurity. The Council Override The City Council strongly disagreed, emphasizing that grocery couriers face the same risks and exploitation as restaurant couriers and deserve equal treatment. On September 10, 2025, the council voted to override the mayor’s vetoes, enacting the measures in full. While some provisions are tied to the effective dates of related safe-access legislation, the core result is that grocery delivery workers are now covered by the same $21.44 hourly pay standard as restaurant couriers. Reactions and What Comes Next The legislation has sparked vigorous debate. Worker advocates and council sponsors hailed the change as a victory for fairness, pointing out that grocery and restaurant couriers often perform identical tasks under similar conditions. Delivery platforms and some grocers, by contrast, have warned that the laws will significantly raise costs, potentially by as much as 46%, reduce tipping, cut shifts, and increase fees for local grocers. At least one company has already threatened litigation against the city. DCWP will continue monitoring compliance, and enforcement is expected to be strict. For businesses operating in New York City, this means both restaurant and grocery delivery models are now subject to enhanced wage obligations, new in-app tipping requirements, and accelerated payment timelines. Employer Takeaway The expansion of New York City’s delivery worker protections represents another step in the city’s effort to regulate the gig economy. App-based service providers should act quickly to review pay practices, update app functionality, and confirm compliance protocols to avoid penalties or reputational risk. Grocers that rely on third-party platforms should also be prepared for potential increases in delivery costs and related contract renegotiations.
September 29, 2025
Estates and Trusts
Who Gets the Sofa? Dividing Up Your Stuff Without Drama
Benjamin Franklin famously said that the only two certainties in life are death and taxes. A close third would be family squabbles over who gets the personal property when someone dies. Even a well-thought-out estate plan may leave room for disagreements. For example, if Mom leaves everything to her children “in equal shares,” assets like investment accounts and real estate can simply be liquidated and divided up. But when it comes to household items like photos and family heirlooms, each item is unique — and sometimes holds deep sentimental value. What’s the value of the old sofa where Dad used to read to the kids versus the cake plate Mom used to pull out for each child’s birthday? These can be difficult questions to grapple with, especially in the emotionally fraught time after a profound loss. With a little extra planning, however, you can help head off a family row over who gets what. The first step is to choose a personal representative (“executor”) with experience in settling estates and distributing personal property. In many cases, a lawyer or other third party who is not a family member can be the best choice. This person has no personal stake in the matter and can remain above the fray of family politics. Regardless of whom you appoint, your personal representative can choose from several methods of administering your tangible property. The beneficiaries can draw numbers and then, in the order of the numbers they chose, take turns picking one item each from the estate until everything has been selected. A similar approach is to have the children take turns choosing an item, starting with the oldest child and working down to the youngest. If the beneficiaries get along well, each can simply be given a pad of Post-its in a different color to place on the items he or she wants. If more than one sticker appears on an item, the beneficiaries who placed them can negotiate who should get the piece, perhaps in exchange for allowing the other person to receive another item that is in dispute. Having all the beneficiaries agree to the process beforehand is the best first step. There may still be grumblings among those who don’t get something they wanted, but at least they can agree that the process was fair. An even better approach is to say who gets what before anyone dies. Specific bequests of tangible personal property can be included in your will. Naming the individual who is to receive an item, whether it’s a laptop, a ginger jar, or an Ikea sofa, will help keep disputes to a minimum. A “catchall” clause can state that any property not specifically named is to be sold, with the proceeds of the sale to become part of the remainder of your estate. Alternatively, many wills allow the testator to write a memo that says that certain items go to certain people. It’s important to verify first that the will allows for such a memo, and the memo should reference the section of the will that does this. The benefit of writing a memo is that it doesn’t need to involve a lawyer or notary. If you decide to sell an item on eBay, or if the relative who was supposed to receive it has fallen out of favor, you can simply tear up the memo and write a new one. A well-drafted will should also allow for the estate to pay for the cost of insuring and shipping any items that go to beneficiaries who live out of the area. “A cynic,” said Oscar Wilde, is someone who knows “the price of everything, and the value of nothing.” Accounting for the sentimental value of your personal property can help prevent an outbreak of cynicism after you are gone. If you’re not sure where to start, call an estates and trusts attorney for help.
September 29, 2025
Bankruptcy
When the Subsidiary Fails: Litigation Risks for Officers and Directors of Parent Companies
A recent decision in an adversary proceeding in Delaware, arising from the Chapter 7 liquidation of Rosetta Genomics, Inc., serves as a cautionary tale for corporate officers and directors — especially those of parent companies operating across borders. In Beskrone v. Berlin (In re Rosetta Genomics Inc.), 18-11316 (Bankr. D. Del. July 14, 2025), the complaint, which survived a motion to dismiss, underscores how fiduciary and fraud-related claims can reach beyond the immediate debtor to implicate leadership at the parent level, even when that parent is based outside the United States. Rosetta Genomics, Inc., a Delaware corporation, was a wholly owned subsidiary of Rosetta Genomics, Ltd., an Israeli biotechnology company. The U.S. entity was created to commercialize diagnostic tests in the American market. The parent company developed new diagnostic tests based on various genomics markets, including DNA, microRNA, and protein biomarkers, using various technologies, including qPCR, microarrays, Next Generation Sequencing (NGS), and Fluorescent In Situ Hybridization. The complaint alleges that the Delaware subsidiary’s most significant assets were its subsidiaries Minuet Diagnostics, Inc. and GynoGen, Inc., as well as the diagnostic test RosettaGX Reveal (“Reveal”). The latter accounted for the vast majority of the debtor’s revenue (up to 85%). The Israeli parent company owned another diagnostic test RosettaGX Cancer Origin Test. In 2012 Medicare established a reimbursement rate for Cancer Origin and published a formalized coverage decision through a Local Coverage Determination. This meant that the debtor and/or parent received approved automatic payments for claims submitted to Medicare and private insurers for Cancer Origin. The Reveal test was rarely reimbursed, but it was often billed under the coding for Cancer Origin. Central to the claims is the alleged miscoding of RosettaGX Reveal, which led to inflated revenues. Despite learning of Medicare scrutiny in mid-2017, the executives allegedly failed to disclose the issue to investors and continued to raise capital, ultimately contributing to the collapse of both entities. According to the complaint, Sabby Healthcare and Sabby Volatility Warrant Master Funds (collectively “Sabby”) and a potential merger partner incorporated financial statements that allegedly misrepresented the true source of revenue, omitting the coding irregularities. After the merger partner walked away, the Delaware subsidiary was placed in a Chapter 7 proceeding in 2018. Years after the subsidiary was put in a Chapter 7 proceeding, the trustee, Don Beskrone, initiated litigation not only against the officers of the debtor but also against the executives of the Israeli parent. Interestingly, a lawsuit was first commenced in the Southern District of New York in 2021, and the case was dismissed without prejudice for lack of personal jurisdiction. What facilitated the litigation was an assignment of claims from the Israeli parent’s liquidator and Sabby, which had invested nearly $8 million in the parent company under securities purchase agreements signed. The lawsuit asserts a number of causes of action, including breach of fiduciary duty, gross negligence, fraud, and negligent misrepresentation on behalf of the bankruptcy estate, against Kenneth Berlin (CEO of the parent and sole director of the debtor), Ron Kalfus (CFO of both entities), and Brian Markison (chairman of the parent’s board). All are U.S. citizens, yet their roles in the foreign parent did not shield them from liability in the U.S. bankruptcy court. The defendants in their motion to dismiss emphasize that Rosetta, Ltd. operated in the intensely competitive and rapidly changing biotechnology marketplace, and it had a consistently disclosed history of losses, as well as extensive disclosures in its public filings detailing the many risks inherent in investment (including, but not limited to, the risks inherent in Medicare billing determinations). Its failure was a risk that was clearly disclosed both early and often. Sabby, on the other hand, was a sophisticated investor that well understood the risks associated with investment in biotechnology and healthcare startups. The defendants challenged the complaint on numerous procedural grounds, including lack of subject matter jurisdiction, statute of limitations, forum non-conveniens, and failure to state claims. Nonetheless, the court allowed the case to proceed, signaling that directors and officers, even of foreign parents, can face serious litigation exposure when a U.S. subsidiary fails. This case is particularly instructive because it highlights how liability can extend across borders and corporate structures, exposing parent company officers to U.S. litigation and broadening the scope of claims through investor and liquidator assignments.
September 26, 2025
Labor and Employment
The Heat Is On: OSHA’s Proposed Heat Safety Rule Advances with June 16 Hearing
Update: OSHA Extends Post-Hearing Comment Deadline On September 17, 2025, OSHA extended the deadline for submitting post-hearing comments on its proposed Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings rule. Chief Administrative Law Judge Steven Henley granted a 30-day extension, moving the deadline to October 30, 2025. As a reminder, OSHA published the proposed rule in the Federal Register on August 30, 2024 and held an informal public hearing from June 16 through July 2, 2025. The agency has received more than 43,000 comments to date. Only stakeholders who filed a Notice of Intent to Appear at the hearing may submit post-hearing comments at this stage. Submissions, including supporting data, must be filed electronically through www.regulations.gov (Docket No. OSHA-2021-0009). What this means for employers: Employers who are eligible to file post-hearing comments should review their earlier submissions and consider whether supplemental comments are warranted before the October 30 deadline. Even if not eligible, employers should continue to monitor this rulemaking closely, as OSHA is moving forward quickly with finalizing the heat standard. Proactive compliance planning — including assessing current heat-illness prevention measures — will help employers stay ahead of regulatory changes. Original article published on June 19, 2025 As summer temperatures soar, so does the urgency for workplace safety measures to protect employees from heat-related illnesses. On July 2, 2024, the Occupational Safety and Health Administration (OSHA) unveiled its proposed rule, “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings,” a groundbreaking step toward establishing the first nationwide standard to combat excessive heat in workplaces. With a public hearing scheduled to begin on June 16, 2025, this proposed rule is poised to reshape how employers across industries manage heat hazards. OSHA will hold the hearing virtually, and it will continue through July 2, 2025. The purpose of the hearing is to gather public input on the proposed rule, which aims to protect workers from hazardous heat exposure. What is the Proposed Rule? OSHA’s proposed standard is a comprehensive framework designed to protect approximately 36 million workers in both indoor and outdoor settings. The rule applies to all employers and activates when the heat index hits 80°F for more than 15 minutes during any 60-minute period — termed the “initial heat trigger.” At 90°F, the “high heat trigger” introduces additional requirements. Here’s a snapshot of what employers would need to do: Written Heat Injury and Illness Prevention Plan (HIIPP): Employers must develop and implement a tailored, written plan to evaluate and control heat hazards. This includes designating a heat safety coordinator to oversee compliance. Temperature Monitoring: Outdoor employers must monitor temperatures frequently to assess heat exposure accurately. Indoor employers need to identify areas where the heat index may reach 80°F and incorporate a monitoring plan into their HIIPP. Mandatory Breaks and Cool-Down Areas: At the initial heat trigger, employers must provide access to drinking water and break areas. At the high heat trigger, mandatory 15-minute breaks every two hours and observation systems (similar to buddy systems) to monitor for heat illness symptoms are required. Training and Acclimatization: Employees must receive training on heat hazards, emergency responses, and acclimatization protocols to gradually build tolerance to higher temperatures, especially for new or returning workers. Hazard Alerts and Signage: Employers must issue heat hazard alerts before shifts or when high heat is recognized, using accessible communication methods that are easily understood by all employees. For indoor areas frequently exceeding 120°F, warning signs are mandatory. This isn’t just a suggestion—it’s a specification standard, meaning employers have little wiggle room to deviate from OSHA’s requirements. The rule’s scope is vast, covering general industry, construction, maritime, and agriculture; however exemptions apply to work with no reasonable expectation of reaching the initial heat trigger or areas consistently air-conditioned below 80°F. Why This Rule Is a Big Deal OSHA’s push for a federal heat standard has been simmering since 2021, fueled by President Biden’s Executive Order 13990 on climate change. The agency’s National Emphasis Program on heat hazards, launched in April 2022, underscored the need for action, though citations under the General Duty Clause have been sparse and often overturned in litigation. This proposed rule aims to close those gaps, providing clear, enforceable requirements to protect workers from heat-related illnesses, which can range from heat exhaustion to life-threatening heatstroke. The timing is critical. Rising temperatures are no longer just a summer concern—record-breaking heat waves are hitting year-round, especially in regions like the Southwest. States like California, Minnesota, Oregon, and Washington already have heat illness prevention standards, and California’s recent indoor heat rule (effective July 23, 2024) shares similarities with OSHA’s proposal. For employers with existing plans, the good news is that OSHA’s rule doesn’t mandate changes if your program already includes the proposed elements. However, aligning your plan with OSHA’s requirements could be a smart move to avoid General Duty Clause violations. The Public Hearing: Your Chance to Shape the Future The public hearing begins on June 16, 2025 (and continues through July 2, 2025), offering a platform for employers, industry groups, and workers to weigh in. Only those individuals who filed a timely Notice of Intention to Appear (NOITA) will be allowed to testify or ask questions at the hearing. The comment period, which closed on December 30, 2024, saw robust engagement, and this hearing is the next step in refining the rule. Recent Supreme Court decisions, such as Loper Bright Enterprises v. Raimondo, have raised questions about the authority of federal agencies, potentially impacting OSHA’s rulemaking. Additionally, the Trump administration’s “Regulatory Freeze Pending Review,” issued on January 20, 2025, could delay or alter the rule’s trajectory, though its impact on ongoing rulemaking remains unclear. The hearing will be a critical moment to gauge the rule’s momentum and OSHA’s response to these dynamics. Practical Tips for Employers While the rule is still in the proposal stage, proactive employers can get ahead of the curve. Here’s how: Review Existing Plans: If you have a heat illness prevention program, compare it to OSHA’s proposed elements. Gaps in training, monitoring, or break policies could expose you to future citations. Engage in the Hearing: Attend the hearing (even if you failed to submit a timely NOITA) to stay informed and, if able, to voice practical concerns, especially if your industry faces unique challenges (e.g., indoor heat in manufacturing or outdoor work in construction). Train Your Team: Start training supervisors and employees on heat hazards and acclimatization now. Early adoption can reduce risks and demonstrate compliance readiness. Monitor State Standards: If you operate in states with existing heat rules, ensure compliance while preparing for potential federal alignment. California’s indoor rule, for example, has trigger points at 82°F and 87°F, slightly different from OSHA’s. The Heat Is On—Are You Ready? OSHA’s proposed heat injury and illness prevention standard is a wake-up call for employers to prioritize worker safety in a warming world. With the public hearing kicking off on June 16, 2025, now is the time to engage, prepare, and adapt. Whether you’re a small business or a multinational corporation, this rule could redefine your workplace safety obligations.
September 25, 2025
Sports Entertainment and Media
Court Reinstates Jury Finding in Disney Motion Capture Copyright Dispute
The Ninth Circuit recently issued a partial reversal of a grant of summary judgment to Disney in a dispute stemming from the misuse of motion capture software. This case arose when Disney's visual effects contractor, Digital Domain 3.0 “DD3,” allegedly used Rearden's copyrighted MOVA motion capture software without authorization during production of the 2017 Beauty and the Beast film. While a jury found Disney vicariously liable and awarded $250,638 in actual damages plus $345,098 in profits, the district court granted Disney's motion for judgment as a matter of law, concluding that Disney lacked the ability to supervise DD3's directly infringing conduct. The ability of Disney to supervise DD3’s misuse constitutes a necessary element of vicarious liability. The Ninth Circuit disagreed on appeal, holding that sufficient evidence supported the jury's finding that Disney had the practical ability to supervise and control DD3's conduct. The court rejected Disney's arguments that it was impractical to conduct due diligence on every piece of software used by vendors and that it had no way to identify the infringement, finding that the jury could reasonably conclude Disney had the reasonable ability to identify DD3's potentially infringing use of MOVA. However, the court affirmed the district court's decision to treat the jury's profit award as advisory, ruling that there is no jury trial right for profit remedies under the Copyright Act. This decision has the potential to motivate large studios such as Disney to rethink their due diligence obligations in cases involving large-scale productions with multiple vendors and complex technological workflows.
September 25, 2025
Mergers and Acquisitions
Finding the Right Deal Partners: Why Pace and Fit Matter
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 2 of our Selling Your Business series, Anna Gavin dives into one of the most overlooked but critical aspects of selling a business: choosing the right partners for the deal. She discusses with her deal counsel, M&A attorney Mike Mercurio, that from legal advisors to teammates, not everyone is the right fit for every situation. From the sell side perspective, she shares how important it was to align not just on expertise, but on pace, communication style, and approach. Keeping things simple, focused, and moving forward became the guiding principle and it made all the difference.
September 25, 2025
Labor and Employment
Visa Uncertainty: The Presidential Proclamation on H-1Bs and a $100,000 for New Petitions
On September 19, 2025, the Trump administration issued a Presidential Proclamation “Restriction on Entry of Certain Nonimmigrant Workers,” effective at 12:01 a.m. September 21, 2025. The Presidential Proclamation specifically targets H-1B Visa Holders who are outside of the United States. Any H-1B visa holder attempting to enter the United States after the effective date must be accompanied by proof of payment of an additional $100,000 fee. This action created panic among large H-1B employers and employees as employees scrambled to return to the United States before the effective date and time. The Administration, through United States Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), and the Press Secretary’s office, had to “clarify” that their rule was only effective for new H-1B petitions. USCIS Statement attempting to clarify the situation: This proclamation only applies prospectively to petitions that have not yet been filed. The proclamation does not apply to aliens who: are the beneficiaries of petitions that were filed prior to the effective date of the proclamation, are the beneficiaries of currently approved petitions, or are in possession of validly issued H-1B non-immigrant visas. All officers of the United States Citizenship and Immigration Services shall ensure that their decisions are consistent with this guidance. The proclamation does not impact the ability of any current visa holder to travel to or from the United States. Accordingly, individuals in H-1B status in the United States are unaffected. The vast majority of H-1B cases pending for this cap year will also not be affected. Individuals traveling outside of the country with valid H-1B visas or seeking to obtain renewal of an H-1B visa, will also be unaffected. Instead, the focus will be on certain key groups. The first major group will be the new H-1B cap applicants in 2026. These applicants will be required to demonstrate payment of a $100,000 fee before filing their petition with the USCIS. Also, the effective date of the order will directly impact cap-exempt employers looking to hire new workers in H-1B status. These employers tend to be in research, medical, academia, and related fields. It should be noted that there is currently no guidance on how to make the fee payment. Exemptions are also built into the order, but they are not specific. Currently, it appears that they may exist for an individual, a company, or potentially a whole industry, if DHS determines that it is in the national interest of the United States and does not pose a threat to the security or welfare of the United States. Crucially, the Proclamation does not address whether the fee and restriction apply to cap-exempt H-1B workers outside of the U.S., who are typically exempt from the majority of H-1B fees. What should employers do? We currently believe that international travel will not be affected for the vast majority of H-1B visa holders. We recommend all non-immigrant visa holders consult with counsel before international travel, given the current climate. Employers and individuals looking to apply in the 2026 H-1B lottery or seeking employment with a Cap Exempt H-1B employer should seek legal advice immediately. How long is this effective for? The Presidential Proclamation is effective for a period of 12 months. What Happens in the future? The proclamation is likely to face legal challenges as it directly contradicts the will of Congress in the issuance of the H-1B visa program and its implementing regulations, including the introduction of application fees without notice and comment. Entry of nonimmigrants, however, is controlled by the executive branch, so potentially a modified version of this proclamation will continue.
September 22, 2025
Family Law
A Game-Changer for Divorcing Homeowners in Maryland
One of the biggest challenges for divorcing clients is determining how to handle the marital home. Even when both parties agree on who will remain in the home, the refinancing hurdle often proves to be insurmountable, especially given the recent climb in interest rates. Starting October 1, 2025, a new Maryland law will give divorcing homeowners the chance to stay in their home without refinancing. Same loan. Same interest rate. Same mortgage payment. But goodbye to financial entanglement with your spouse. For years, I have counseled homeowner clients on how to keep their home while removing their spouse from liability. Most people can’t pay off their entire mortgage, so it meant having to refinance into a new loan, which often involved higher interest rates, closing costs, and the challenge of qualifying alone. If refinancing wasn’t an option, homeowners would either have to sell the home or convince their spouse to stay financially connected on the mortgage. The options weren’t ideal. Starting October 1, 2025, Maryland is changing the game. A new law requires certain mortgage lenders to allow a divorcing spouse to assume the mortgage, that is, take over the mortgage without refinancing. (House Bill 1018). The spouse assuming the mortgage can keep their same mortgage payment and avoid refinancing fees such as closing costs and appraisals. The law applies to new loans but can also be retroactively applied to loans obtained prior to October 1, 2025, if the divorce decree is entered on or after October 1, 2025. Of course, every law has exceptions. The new law applies to most conventional mortgages, which are commonly used by Maryland families when purchasing a home. It doesn’t automatically cover government-backed loans like FHA, VA, or USDA, or mortgages from major national banks such as Wells Fargo, Chase, or Bank of America. That said, assumption may still be possible with those loans. In fact, we have helped some clients successfully arrange assumptions even before this law has gone into effect. Even though lenders will be required to offer assumption, homeowners will still have to meet the lender’s requirements to qualify for the loan. A skilled family law attorney can assist with crafting a settlement or obtaining a judgment that improves the chances of qualifying and gives families the best opportunity to stay in their home. This new law helps Maryland families worry about one less thing when getting divorced. The law will help families stay in their home, keep children in their same schools, and maintain a sense of normalcy during a time of change.
September 19, 2025
Labor and Employment
The Social Media Aftermath of the Charlie Kirk Assassination – Can An Employer Fire An Employee for Offensive Social Media Posts?
In an article in the September 16, 2025, edition of The Washington Post, the lead paragraph read as follows: “The wave of companies and other institutions firing or suspending employees over what they’ve said in reaction to last week’s killing of conservative influencer Charlie Kirk has expanded in recent days, as some of his supporters in and outside the government amp up a push against speech they say crosses lines.” Thus, the question that arises in the minds of both employees and employers related to the voluminous publicity surrounding the recent Kirk assassination is whether an employee’s social media post, which is deemed to be offensive, can justify the potential termination of such an employee. The short answer to this inquiry is that in the private sector, as opposed to the arena of public employment, where First Amendment protections may be applicable, employers have wide discretion to discipline and even fire employees for posts which are deemed to be unduly offensive, inflammatory, or violative of their cultural or internal policies. The caveat for private sector employers is that employees enjoy statutory protections under the National Labor Relations Act for speech of a political or social nature when such speech or posted comment is related to such employee’s workplace’s wages, hours or terms and conditions of employment. Furthermore, employees also enjoy protections under Title VII of the federal Civil Rights Act if, for instance, their social media posts protest discrimination in the workplace, when that alleged discrimination refers to any protected status, such as religion, national origin, race, disability, etc. Private employers would be well-advised in this incendiary political climate to analyze each situation based on the facts and circumstances of the post in question, and to evaluate whether such post is violative of its internal policies, is deemed to be overly inflammatory and/or offensive to a person(s), is disparaging or defamatory to the employer or its employees or customers, is damaging to the company’s reputation or cultivated image, or is deemed to be simply inconsistent with civilized and acceptable societal discourse. In any situation where termination may be predicated upon a social media post and where uncertainty may exist regarding potential legal exposure and/or a looming public relations crisis, it is always advisable for the employer to consult with competent employment counsel and/or a public relations crisis expert. Howard Kurman is a founder of Offit Kurman, a AmLaw 200 law firm. He is a principal in the firm’s labor/employment practice and regularly counsels employers on all facets of employment and labor relations law and practice. To contact Howard, he may be emailed at hkurman@offitkurman.com, or by phone at his office: 410-209-6417.
September 18, 2025
Estates and Trusts
Planning for Responsible Inheritance: What "Brewster’s Millions" Can Teach Us About Estate Planning
The plot of the 1985 comedy “Brewster’s Millions,” starring Richard Pryor and John Candy, centers around Montgomery Brewster, a minor league baseball player who stands to inherit $300 million from a previously unknown great-uncle. The catch? To receive his inheritance, he must spend $30 million[1] within 30 days without receiving any assets in return, and without merely giving away all the money. If Brewster does not spend the entire $30 million in 30 days, he will inherit nothing. Hijinks ensue. At its core, the movie is a satire on capitalism and consumerism, playing on the common fantasy of inheriting a life-changing fortune from a wealthy relative. However, the film also explores a common concern that many clients have when making their estate plans. They are worried that their beneficiaries will squander their life’s savings and exhaust their inheritance on luxury items or speculative investments. These clients consider how they can ensure that their beneficiaries will responsibly manage a significant inheritance. Brewster’s great-uncle explains that his contest is not an arbitrary one. He wishes to teach Brewster a lesson, to hate spending money so much that he will learn to manage his inheritance wisely. By forcing Brewster to exhaust a fortune, he teaches Brewster to think very carefully about how he spends his money, making strategic and methodical decisions in pursuit of a singular goal. While the movie’s plot is exaggerated for comedic effect, in reality, there are several well-established estate planning techniques a client may consider to instill fiscal responsibility in a beneficiary without going to such extremes. Staggered Distributions and Trustee Discretion It is common sense that a client would not wish for a minor beneficiary to receive an outright inheritance, and virtually all wills and trusts will provide that a minor’s share will be held in trust until a milestone birthday. This ensures that a beneficiary will not receive their inheritance outright until they attain a mature age. To further mitigate the risk of a beneficiary squandering their inheritance, a client may stagger distributions over a significant period of time. For example, the client may direct that the beneficiary’s inheritance be held in trust until the beneficiary turns 25, at which time one-third of the trust assets will be distributed outright. A second distribution of one-half of the assets may be made at 30, with the assets becoming fully distributable upon the beneficiary's attainment of age 35. This approach enables beneficiaries to mature into their inheritance gradually. While the assets remain in trust, distributions may still be made by an independent trustee pursuant to an ascertainable standard, such as for the beneficiary’s health, education, maintenance and support (the “HEMS” standard). The trustee is empowered to decide if, when, and how much to distribute to the beneficiary. If, like Monty Brewster, the beneficiary appears to be recklessly spending their inheritance, the trustee can act as a stopgap and cease making distributions. Incentives Another common strategy is to incentivize the beneficiary to achieve specific goals to receive distributions. By dangling a “carrot” in front of the beneficiary, the client can guide and influence their beneficiary’s personal development and early career path. For example, the client may direct that the beneficiary will only receive a distribution upon obtaining a bachelor’s degree; if the beneficiary does not obtain a bachelor’s degree, their inheritance could be withheld for a longer period or even redirected to a charity. A client might further direct that distributions be made to the beneficiary for every year that they maintain full-time employment. A client could also include directions requiring a trustee to make distributions provided that they are used toward some productive goal, such as the purchase of a home. The client may encourage a beneficiary to keep a family home or vacation house in the family by providing an annual stipend for every year that the premises are maintained in good order. If the client is uncomfortable with such rigid, dead-hand influence over their beneficiary’s actions, they may still consider imparting some non-binding guidance or wisdom. For example, a client may express a preference for their beneficiary to use a portion of their inheritance for charitable purposes or to support a worthy cause. A client might also suggest, but not require, that their beneficiary employs a trusted family financial manager or accountant to assist them with managing their inheritance. Designating the Beneficiary as a Co-Trustee Another great strategy to foster fiscal responsibility is to name the beneficiary as the co-trustee of their trust fund until it is fully distributable. The client will then name a trusted individual or financial institution to serve as co-trustee together with the beneficiary. The beneficiary may be permitted to make distributions pursuant to the HEMS standard, but would not be permitted to participate in making discretionary distributions. This strategy provides greater flexibility and management over the beneficiary’s inheritance and the timing of distributions, while allowing the beneficiary the opportunity to manage their funds under the guidance and mentorship of a more experienced party. This may be especially valuable when the beneficiary has had little to no financial education or experience managing large sums of money. Conclusion Estate planning is much more than merely transferring assets; it is about preserving the client’s values and ensuring appropriate stewardship of the assets they leave upon their death. Estate planners have a variety of techniques and tools that can be employed to protect beneficiaries from themselves, oftentimes used in conjunction to maximize their effectiveness. The key is thoughtful and deliberate planning, exploring with the client the myriad of methods that can be used to achieve their goals and ensure preservation of their legacy. [1] Adjusted for inflation, this $30 million bequest would be approximately $90 million in today’s dollars.
September 18, 2025
Mergers and Acquisitions
What Really Happens When You Decide to Sell Your Business?
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 1 of our Selling Your Business series, client and former Fireline owner Anna Gavin shares her personal and professional journey that followed her pivotal decision to sell her business. From quietly sitting with the decision for a year to finally voicing it to her spouse, she walks M&A attorney Mike Mercurio, who served as her counsel and deal attorney, through the early steps she took to get informed and prepared. By attending panels, listening to expert advice, and beginning the groundwork a year in advance, her story highlights the importance of planning and just how early that planning really needs to begin.
September 18, 2025
Labor and Employment
The FTC’s Noncompete Ban Is Dead – But Enforcement Is Alive and Well
The Federal Trade Commission has officially withdrawn its appeal in Ryan, LLC v. FTC, putting an end to its controversial attempt to ban noncompete agreements through agency rulemaking. That effort may be over, but the commission has made clear that employers are not free to impose noncompetes “willy-nilly.” As FTC Chair Ferguson recently cautioned, the failure of the Biden Administration’s sweeping ban does not mean the agency is abandoning the field. From Rulemaking to Case-by-Case Enforcement Rather than pursuing broad regulations, the FTC has pivoted toward an enforcement model. On September 4, the commission announced a complaint against Gateway Services, Inc. over its use of noncompete clauses. Alongside the complaint, Commissioners Ferguson and Holyoak issued a joint statement emphasizing a new philosophy – using targeted enforcement to signal to the market what the FTC views as unlawful practices. In their words, a “steady stream of enforcement actions” provides transparency and nudges employers toward compliance without sweeping rulemaking. This case-by-case strategy echoes traditional antitrust enforcement – send a clear warning through precedent, not regulation. Public Input Still Matters At the same time, the FTC issued a Request for Information (RFI) seeking data about how noncompetes are used, justified, and experienced across industries. While the agency insists this is not a return to rulemaking, the RFI will likely shape enforcement priorities, especially sector-specific initiatives. Employers with legitimate business interests in protecting trade secrets or client relationships should consider submitting comments before the November 3 deadline to ensure their perspective is not drowned out by opponents. Healthcare in the Crosshairs The FTC has already signaled special scrutiny of healthcare employers. On September 10, Chair Ferguson sent letters to large health systems and staffing firms urging them to review restrictive covenants in their employment agreements. The move is striking given that states already regulate healthcare noncompetes more aggressively than nearly any other sector – dozens of new bills have been proposed in the past year alone. Why the added federal attention? One explanation may be the flood of public comments targeting healthcare during last year’s failed rulemaking process. In other words, political pressure and anecdotal evidence may be driving the FTC’s focus more than labor market data – where healthcare remains one of the strongest employment sectors nationwide. How Employers Can Avoid the “Willy-Nilly” Label The Gateway Services complaint and other FTC actions provide insight into what will draw scrutiny. Employers should work closely with counsel to design noncompete and restrictive covenant programs that focus on legitimate interests rather than blanket employee control. Key considerations include: Legitimate purpose: Use restrictive covenants to prevent unfair competition and protect confidential information, not merely to retain employees or block mobility. Role-specific tailoring: Reserve noncompetes for positions where they are truly necessary (e.g., senior executives, client-facing sales roles). Apply different restrictions for different levels of employees. Narrower alternatives: Consider whether non-solicitation, confidentiality, or customer protection clauses can adequately protect the business. Reasonable scope: Draft restrictions that are proportionate in duration, geography, and covered activities. Agreements that prevent someone from working for a competitor “in any capacity” – say, even as a janitor – are likely to raise red flags. Compliance with state law: Many states have already tightened restrictions on noncompetes. Ignoring state law not only risks invalidation but may also invite FTC scrutiny. The Bottom Line While the federal ban is off the table, the FTC is not retreating. Employers should expect enforcement actions to continue, particularly in sectors like healthcare, and should take this moment to review their agreements. A thoughtful, legally sound approach to restrictive covenants will make it much harder for regulators to paint your practices as “willy-nilly.”
September 18, 2025
Estates and Trusts
Trust Issues: Did the Clippers’ Leonard's Aspiration Deal Skirt the NBA Salary Cap?
As a trust and estates attorney for professional athletes, I was shocked when news broke that fintech start-up Aspiration owed the LA Clippers small forward, Kawhi Leonard’s personal LLC millions of dollars heading into its bankruptcy. At first glance, it sounded like a straightforward endorsement dispute. However, buried in the otherwise mundane bankruptcy filings was a “companion trust,” another name for an LLC, one that I have drafted for clients, but which has certainly raised some questions. The biggest question of all was whether the LLC was just a conduit for the Clippers’ clumsy attempt to boost Leonard’s income outside the NBA’s salary cap? The Players and the Paperwork Aspiration was founded as a banking platform invested heavily in by Clippers owner, Steve Ballmer. Leonard, a talented 10-year veteran, was already paid well by the Clippers on a max contract with the team. Then in 2022, he signed a four-year, $28 million “endorsement” deal through his personal limited liability company called KL2 Aspire. According to bankruptcy records, a “companion trust,” namely Leonard’s personal LLC, was set up to receive payments from Aspiration. That trust reportedly included a clause voiding the deal made with Leonard and any future payments if Leonard left [1]the Clippers. It should be noted that I draft LLCs and trusts for players all of the time; both can be an integral part of a properly drafted estate plan. Athletes, like all my clients, use trusts and LLCs for probate avoidance, creditor protection, privacy, and tax efficiency. In Leonard’s case, it seems that the LLC was instead drafted to function as a private channel to funnel money received from a company partly funded by the Clippers’ owner into a vehicle controlled by Leonard. The contract then tied the payments specifically to Leonard’s role with the Clippers[2]. Why It Matters Under NBA Rules The NBA’s collective bargaining agreement forbids “salary-cap circumvention”: a team is prohibited from channeling extra compensation to a player under the guise of a third-party deal. The use of a trust or an LLC to marshal assets or income does not change that rule. If the pay by a third party is well above market value for actual promotional work expected of the athlete, or contingent upon staying with the team, it still fits the bill as “compensation” and therefore a violation. It seems there is no evidence that Leonard performed any promotional duties that one would expect of a professional athlete paid millions of dollars. According to podcast host and journalist Pablo Torre, former Aspiration employees have said the marketing component was minimal. Despite the lack of service provided by Leonard, so far, the Clippers and Ballmer have denied any involvement with the generous arrangement. However, the combination of Ballmer’s hefty investment, reportedly in the tens of millions, the team-service clause, and the LLC’s transfers, provides the NBA with plenty to investigate. To be clear, the question is not whether the use of LLCs and trusts to hold players’ assets, or even income, is legal—they are—but whether this one was used as a poorly drafted device to mask Leonard’s compensation as an end-run around the cap rules. If investigators find that the LLC collected “endorsement” distributions meant to keep Leonard in Los Angeles playing for the Clippers, the repercussions will be steep, resulting in hefty fines, loss of draft picks, or perhaps even voided contracts. Until the league finishes its review, the Aspiration deal and Leonard’s LLC remain a cautionary tale to all in the professional sports world and their lawyers. Estate-planning tools like LLCs and trusts are perfectly legitimate and appropriate, but when the use of these documents intersects with team ownership and conditional contracts, these documents may look less like tools in a properly drafted estate plan and more like an end-run around the salary cap. [1] Report - Kawhi Leonard paid after Clippers partner's investment - ESPN [2] Kawhi Leonard situation explained as NBA investigates Clippers
September 18, 2025
Family Law
I Want The House! What It Takes to Keep It After Divorce
For many couples going through a divorce, the marital home is not only their most valuable asset but also their most sentimental asset. If one spouse wants to keep the home, they may need to “buy out” the other spouse’s marital interest. There are several ways to accomplish this, depending on finances, the mortgage, and the overall settlement strategy. The most common way to buy out a spouse’s share is through refinancing the mortgage. The spouse keeping the home applies for a new mortgage in their own name. The new loan pays off the existing joint mortgage. At closing, they may also borrow enough to pay the other spouse their share of the home’s equity. The other spouse is removed from the mortgage and is no longer liable for the debt. The spouse keeping the home gains financial independence and certainty, however they must qualify for the new loan independently, based on their own income, credit score, and debt-to-income ratio. Higher interest rates may also affect affordability. In some cases, a lender may allow an assumption of a mortgage. Instead of refinancing, the spouse keeping the home formally “assumes” the existing mortgage. They take over responsibility for the loan under its current terms. This allows the spouse to keep the existing interest rate and loan terms, which can be especially valuable in a rising interest rate environment. Not all mortgages are assumable, and the lender must approve the assumption. The spouse taking over the loan must still prove they qualify. Some jurisdictions, such as Maryland, are enacting laws that specifically require lenders to allow an assumption incident to divorce, provided the party meets applicable credit and underwriting standards. In Maryland, it also applies retroactively to existing loans (with nuances for conforming vs. jumbo loans). Check your local laws. Sometimes, the buying spouse can offset the other spouse’s equity interest without immediately changing the mortgage. This works when one spouse keeps the home and relinquishes other marital assets of equal value, such as retirement funds, investment accounts, or cash. This avoids immediate refinancing or sale and allows for a creative settlement tailored to the family’s circumstances. The spouse leaving the home may remain on the mortgage unless it is refinanced later, which can impact their credit and borrowing ability. If neither spouse can afford to keep the home,or if it makes more sense financially, the couple may decide to sell. In this scenario, the home is listed for sale, and the proceeds (after paying off the mortgage, costs of sale, and any liens) are divided according to the divorce agreement. This provides a clean break and cash that can help each spouse move forward and eliminates ongoing joint financial ties. However, this can be emotionally difficult, especially if children are still living at home. The timing of the real estate market may also impact the value received. Every family’s situation is different, and the right approach depends on finances, loan eligibility, and long-term goals. Whether through refinancing, assumption, offsetting with other assets, or sale, it’s important to consider both the short-term affordability and the long-term financial implications. Consulting with both a family law attorney and a mortgage professional can help you choose the option that best supports your future stability.
September 17, 2025
Family Law
Will My Spouse Get My Inheritance in Divorce?
Oftentimes, inheritances are considered separate property and are not divided in divorce. That means if you received money, real estate, or other property through an inheritance that was left specifically to you, it usually remains yours alone. There are important exceptions you need to be aware of: Commingling. If you mixed your inheritance with marital funds, such as depositing inherited money into a joint account or using it to pay for a jointly owned home, it may lose its separate character and be treated as marital property. Using the Inheritance for the Marriage. If inherited funds were used to benefit the family (paying down the mortgage, covering household expenses, or investing in a shared business), a court might find that some or all of the inheritance should be shared. Appreciation or Growth. Even if you kept the inheritance in your own name, any increase in its value during the marriage may be subject to division, especially if your spouse contributed to that growth. For example, if you inherited a rental property and your spouse helped manage or renovate it, part of the appreciation might be considered marital. Prenuptial or Postnuptial Agreements. If you and your spouse signed an agreement about inheritances, the terms of that agreement will generally control. There are actions you can take to protect your inheritance. For instance, keep inheritances separate from marital accounts, title inherited property in your sole name only, keep clear records that trace the inheritance, and consider a marital agreement to define how inherited property is treated in the event of a divorce. Inherited property can become vulnerable if it was commingled or used for marital purposes. Because state laws vary, it’s important to talk with your divorce attorney about your specific situation.
September 17, 2025
Estates and Trusts
More Than Money: Planning for Jewelry, China, and Sentimental Belongings
When most people think about estate planning, their minds often go straight to the big-ticket items: the family home, retirement accounts, life insurance, and investments. In reality, it is almost always the personal belongings—jewelry, family heirlooms, artwork, collections, and sentimental items—that cause the most conflict among loved ones after someone passes away. If anyone followed the news surrounding the highly contested estates of Robin Williams, Aretha Franklin, or Casey Kasem, most of the strife related to the decedent’s personal property and how it should be distributed. The days of itemizing every item that you own in your Will are gone; nonetheless, it is still vital to thoughtfully address personal property in your estate plan. A well-drafted plan ensures that your wishes are clear, disputes are prevented, and your loved ones are provided guidance during a time when tensions often run high. Why Personal Belongings Matter in Estate Planning Personal belongings often symbolize a connection to the person who died or even to an entire family legacy. While these items may not always have a significant monetary value, they often carry deep sentimental significance. Who inherits your grandmother’s wedding ring, your father’s guitar, or the family photo albums may matter more than who receives a brokerage account. Unfortunately, without clear instructions, these items can spark tension, disagreements, and litigation. How New York Law Treats Personal Property Under New York law, your personal belongings (referred to as “tangible personal property”) are part of your estate, just like your financial accounts and real estate. Unless you provide specific instructions in your Last Will and Testament, tangible personal property will be distributed under the general terms of your Will. If you do not have a Will or another estate planning document, those items are then distributed pursuant to New York’s intestacy rules. That means: If you simply leave “all of my tangible personal property” to a beneficiary, the beneficiary is entitled to keep all of it or decide how to divide or distribute those items to others If you leave the distribution to the discretion of the executor, then the executor can distribute it as equitably as possible to your beneficiaries – no easy feat If there’s no Will, New York’s intestacy laws determine distribution, which may not reflect your wishes and can lead to further discord Using a Separate Personal Property Memorandum One estate planning tool used in many states is a personal property memorandum (sometimes called a “memorandum of personal property”). This is a separate list where you detail who should receive specific items, such as a watch, artwork, or family china. In some states, these memorandums are legally binding if referenced in the Will. In New York, however, the law does not automatically recognize a memorandum as enforceable unless strict requirements are met. That means: It is recommended that you instead list items directly in your Will, which can make updating the list more cumbersome since it requires executing a new Will or codicil in New York Alternatively, you can create a revocable trust, which permits a “pour-over” bequest in your Will to a trust. The trust must be executed and acknowledged by the parties, prior to or contemporaneously with the execution of the Will, and the trust must be identified in the Will. Practical Tips for New Yorkers Be specific in your Will. If you know who should inherit a particular item, name the person and the item directly in your Will. Work with your attorney on a memorandum. Ask your estate planning attorney if incorporating a personal property memorandum into your Will makes sense for you. Keep the list updated. Life changes and so do dispositions of your belongings. Review your instructions periodically. Communicate with your loved ones. Talking about sentimental items in advance can help avoid surprises or conflicts later. Don’t overlook digital property. Photos, social media accounts, and digital collections are increasingly valuable and should be addressed in your estate plan as well. Thoughtfully considering your personal belongings in your estate plan is not just about protecting financial value, it is about protecting relationships and honoring memories. By thoughtfully planning for your tangible personal property, you will prevent disputes, provide clarity, and ensure that the items that matter most are passed on with intention. If you live in New York and are updating or creating your estate plan, be sure to discuss with your attorney the best way to handle your personal belongings. A little foresight can bring a lot of peace of mind.
September 15, 2025
Labor and Employment
Getting Paid for Nothing? The Legal Risks of No-Show Jobs
From political scandals to organized crime cases, the phrase “no-show job” is often associated with something shady. Think HBO’s The Sopranos, where Tony Soprano’s crew collected paychecks on construction sites without having to lift a finger. The idea of being paid well for doing very little — or nothing at all — might sound like a dream job, but it often comes with strings attached. And now, with recent reporting about NBA star Kawhi Leonard’s alleged $28 million endorsement deal, the “no show job” is back in the headlines. What Exactly Is a “No-Show Job”? A “no-show job” is a position where someone collects a paycheck without actually doing meaningful work. In some cases, the person is officially listed on the payroll but may not be expected to report or perform the same duties as other employees or contractors. These arrangements can take many forms, but typically include symbolic titles, roles specifically created for family or friends, or mechanisms for shifting money outside traditional channels. No-Show Jobs in the Private Sector In the private sector, employers have greater latitude to structure compensation as they wish. Executive contracts, retainers, and consulting agreements may guarantee pay, regardless of performance. Still, such arrangements can become problematic if they involve misuse of company resources, breaches of fiduciary duty, or violations of payroll and tax laws. Public Sector and Organized Labor With taxpayer funds, the line is far clearer. “No-show jobs” funded with public money are often the target of federal investigation and have led to convictions for fraud, embezzlement, and corruption. In labor relations, the practice of “featherbedding” (requiring payment for unnecessary work) has been unlawful since the Taft-Hartley Act of 1947, which prohibits unions and employers from agreeing to pay for work not actually performed. Where Sports Money Gets Complicated In professional sports, the legal issues surrounding “no-show jobs” differ from those in ordinary employment. In the NBA, the primary concern is salary cap circumvention. The league’s Collective Bargaining Agreement (CBA) requires that all compensation related to a player’s services be disclosed and counted toward the salary cap, promoting competitive balance among teams. That’s why recent reports involving Kawhi Leonard are drawing attention. According to investigative reporting and bankruptcy filings brought to light by sports podcaster Pablo Torre, a now-bankrupt fintech company allegedly promised $28 million to a Leonard-managed entity in exchange for endorsement duties that Leonard never performed. That company was reportedly tied to Los Angeles Clippers owner Steve Ballmer, which prompts speculation about whether the deal was merely an off-the-books way to supplement Leonard’s NBA compensation with the Clippers. Notably, even if this would be considered a lawful private agreement under general contract law, a hidden “no-show job” arrangement of this kind could be interpreted as an attempt to skirt NBA salary rules. If proven to be the case, the league has the authority to impose penalties, including heavy fines or the loss of draft picks. For now, both Ballmer and the Clippers have denied any wrongdoing. The NBA launched a formal investigation on September 3, but NBA Commissioner Adam Silver recently said the league is not rushing to judgment. Still, the story highlights how compensation structures in sports or business alike can blur the line between creative deal-making and questionable circumvention. Lessons Beyond the NBA For businesses outside the world of professional sports, the Kawhi Leonard headlines offer a reminder that “no-show jobs” can trigger serious problems for employers. Shareholders may view it as misuse of company funds, regulators may question classification of workers, as well as payroll and tax compliance, and company reputation and trust may be at risk. The best practice for all employers is to have a clear record of what each employee on payroll is doing to earn their compensation.
September 11, 2025
Intellectual Property
Lawsuit Against AI Giant Anthropic Settles
A class action copyright infringement lawsuit brought by U.S. authors against the AI company Anthropic has reached settlement, avoiding a trial set to begin in December. The class of plaintiff-authors alleged in the suit that Anthropic used millions of pirated books without authorization to train its popular Claude AI assistant. This case has had an unusual path to settlement, following a split opinion in June by Northern California District Judge, William Alsup. Alsup held that Anthropic's use of copyrighted works for AI training constituted fair use, but determined the company nonetheless violated copyright law by maintaining pirated books in a "central library" for use far beyond training purposes. This liability exposure, which could have potentially led to billions or even trillions of dollars in penalties assessed against Anthropic if the pending trial did not go its way, was likely the primary factor which drove Anthropic toward settlement. The settlement's broader impact on pending AI copyright litigation against other major defendants such as OpenAI, Microsoft, and Meta remains uncertain, as this landscape of copyright law remains largely unsettled. Just two days following Judge Alsup’s ruling, Northern California District Judge Vince Chhabria issued a somewhat contrasting opinion in a similar authors' lawsuit against Meta, which suggested that Meta's fair use defense held water. However, the judge suggested that the defense could fail if that suit’s plaintiffs adjusted their arguments to indicate AI models’ potential to flood the market with reproductions of the authors’ works. With dozens of AI copyright cases pending, the unpredictability surrounding these novel legal questions may either incentivize additional settlements or encourage defendants to hold out for potentially favorable precedential rulings. As authors, attorneys, executives, and judges alike continue to navigate this new copyright landscape, time will tell whether more AI companies follow in Anthropic’s footsteps and seek dispute resolution before trial.
September 11, 2025
Estates and Trusts
Marriage in the Balance: Safeguarding Rights for Same-Sex Couples
The U.S. Supreme Court has been asked to overturn Obergefell v. Hodges, the landmark 2015 decision that legalized same-sex marriage nationwide. Whether the Court revisits the case now or in the future, the right to same-sex marriage appears less secure than it has in years. For same-sex couples, especially those in states where legal protections are weaker, this development is a call to action. Although several legal safeguards would remain in place, a reversal of Obergefell could create serious legal and personal complications for many families. What If Obergefell Is Overturned? If the Supreme Court strikes down Obergefell, the constitutional right to same-sex marriage would no longer apply. Same-sex marriage would not immediately become illegal, but the right to marry someone of the same sex would hinge on individual state laws — much as it did before 2015. This about-face would likely lead to a patchwork of marriage laws, under which same-sex couples could marry in some states but not in others. States that had bans against same-sex marriage before Obergefell could begin enforcing them once again or could reimplement bans that were repealed in the decade after the Court had declared same-sex marriage a constitutional right. Some Protections Would Remain Even without Obergefell, several important legal protections would continue to offer support for same-sex couples, though none is as comprehensive or stable as a constitutional right. Respect for Marriage Act Passed by Congress in 2022, the Respect for Marriage Act is a federal law that requires all states to recognize same-sex marriages lawfully performed in other states. In other words, if a couple gets married in a state where same-sex marriage remains legal, their home state would still have to recognize that marriage, even if the state stopped issuing licenses itself. But the Respect for Marriage Act does not require any state to allow same-sex couples to marry within its borders. It provides important recognition but not universal access. State Laws That Support Marriage Equality Some states took independent action to legalize same-sex marriage through legislation, constitutional amendments, or ballot referendums. In these states, marriage equality would remain intact even if Obergefell were overturned. Many other states still have pre-2015 bans on same-sex marriage written into law. Those bans are currently unenforceable under Obergefell, but they could be revived if the precedent is reversed. Existing Marriages Likely to Be Upheld Most legal experts agree that existing same-sex marriages would remain valid, under the legal principle that the government generally cannot invalidate a lawful marriage. Still, uncertainty could arise in areas like adoption, parental rights, inheritance, and medical decision-making, especially in states that chose to restrict marriage rights in a post-Obergefell era. What Same-Sex Couples Can Do Now Regardless of what the Court ultimately decides, couples can take proactive steps to protect their rights and relationships. Consider Getting Married If you’re in a committed same-sex relationship, consider marrying before the law changes. Tying the knot now could help preserve important legal protections, especially if the right to get married is eventually rescinded. Marriage provides many important benefits, including joint-ownership and survivorship rights, tax advantages, healthcare decision-making authority, inheritance protections, and parental presumptions. These rights could be lost in states that move to restrict marriage equality. Put Legal Safeguards in Place Whether they are married or not, all couples should have the following legal documents in place to protect themselves and their families: Wills ensure that your partner inherits your assets and that your final wishes are clearly stated. Durable Powers of Attorney allow your partner to manage your finances if you become incapacitated. Advance Medical Directives authorize your partner to make healthcare decisions on your behalf and outline your medical preferences. These documents can provide peace of mind and legal clarity in the event of illness, incapacity, or death, especially if your marital status is ever questioned or unrecognized. Looking Ahead Even if marriage equality remains intact for now, the issue could return to the Supreme Court in the future. Under Court procedures, only four justices are needed to accept a case for review, and challenges to Obergefell are likely to persist. Whatever the future holds, same-sex couples can take commonsense steps today to protect themselves and their families. Being prepared helps to ensure that your rights and relationships are as secure as possible in uncertain times.
September 11, 2025
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