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
Business
Strategy and Deal Making: Understanding the Nuances of the Buy Side Approach
When it comes to today’s deal market, no two buyers approach acquisitions in the same way. For companies exploring a sale, or for boards weighing offers, understanding the distinct perspectives and motivations of private equity (PE) firms vs. strategic buyers is a key component in the decision-making process. Most data shows that strategic buyers are involved in a larger percentage of acquistions in the U.S. than PE firms, with some estimating they make up about 70% of transactions. While both categories of buyers are interested in achieving growth and value creation, their objectives, timelines, and deal-making strategies differ in ways that can shape everything from valuation to the post-closing integration process. What Drives Different Types of Buyers At the heart of every acquisition lies one simple question: What is driving the buyer? Understanding the why is essential as it determines factors such as how the deal will be structured, how risks will be allocated, and what life will look like post-closing. For most M&A transactions, buyers generally fall into three categories: Private Equity (Financial Sponsors) – These investment firms are highly focused on financial returns, have shorter investment horizons, and a defined exit strategy. They are looking to acquire a company with a goal to exit for a profit. Strategic Buyers (Operating Companies) – This category is made up of public companies, large private corporations, or industry leaders who concentrate more on finding synergies, long-term competitive positioning, and importantly, the integration of the target into their existing organization. Hybrid and Alternative Buyers – This group may include family offices, sovereign wealth funds, and consortiums, which may offer a blend of financial discipline and strategic motivations. Private Equity’s Playbook Private equity buyers typically operate within defined fund cycles, translating into a clear investment horizon, which is often five to seven years. Their acquisition strategy centers on unlocking value, whether that is through operational improvements, growth initiatives, or bolt-on acquisitions. There are several key hallmarks of the private equity approach, including discipline surrounding valuation. PE firms are very focused on returns, which can make them much more price sensitive than other buyers. They also utilize leveraged financing as a core component of their capital structure. This can magnify returns, but it also includes an additional risk factor. PE buyers also enter the transaction with the end in mind. They are concentrated on the exit event, whether that is a sale down the road, IPO, or recapitalization. For sellers, partnering with private equity can mean access to growth capital and operational expertise that can be invaluable, but it likely will not provide the kind of long-term “home” that a strategic acquirer would. The PE buyer is looking to exit as soon as the time is right. The Strategic Buyer’s Perspective As opposed to their PE counterparts, strategic buyers, pursue acquisitions to achieve synergies and create competitive advantages. They are motivated by expanding their market share, entering new regions, or acquiring complementary technologies. Strategic buyers often have longer investment horizons and could be willing to invest more heavily on the front end, knowing that they are looking to achieve returns over a longer time frame. This means that they might pay more of a premium when they can justify it through cost savings, revenue growth, or vertical integration over time. These buyers are going to be looking to integrate the target into their existing operations, which can impact culture, systems, as well as management continuity. Sellers may see strategic buyers as a more stable option as they are “in it for the long run.” The Rise of Hybrid Buyers There is an increasingly important category for sellers to consider, and that is the hybrid buyer. This category can include family offices, sovereign wealth funds, or corporate-backed investment arms which blend the return-driven discipline of a PE buyer with the more patient objectives of a strategic buyer. For certain sellers, for example founder-owned businesses, this option can be an attractive middle ground that presents a “best of both worlds” scenario. On the sell side, understanding the nuances of the buy side is essential to making the right decision. The “best” buyer isn’t always the one that comes in with the highest offer, and it is important to consider things such as long-term vision, cultural alignment, deal certainty, and growth support as well. There are some distinct differences between buyers, and to best negotiate terms and maximize value and long-term success, sellers must appreciate these differences and prepare accordingly.
September 10, 2025
Family Law
What to Do If You Are Accused of a Title IX Violation in College
Being accused of sexual misconduct in college is a deeply serious and often overwhelming situation. Title IX investigations can move swiftly, and the stakes are extraordinarily high in terms of academic, professional, and personal consequences. Even if you believe the accusation is clearly false or easily refuted, it is critical not to underestimate how complicated and potentially one-sided the campus disciplinary process can be. Taking the proper steps in the earliest moments after an accusation can make a significant difference in the outcome of your case. Here are the immediate steps you should take if you are accused: Call your parents and call an attorney experienced in college Title IX cases immediately. Even if you are embarrassed, even if the accusation against you is baseless, even if you have evidence proving the accusation is false, and even if you think you can easily explain why you are not at fault, it is critical that you do not attempt to deal with this alone. Why?The college procedures regarding the investigation and adjudication of sexual misconduct cases are stacked against the accused. Unfortunately, mere truth and common sense are usually insufficient to protect you; you need someone experienced to help you navigate the process. The sooner you get an attorney experienced in these cases, the better. Clients have sometimes come late in the process, believing they could manage the investigation or hearing without an attorney, only to face a negative outcome. It is far better to avoid pitfalls from the outset than to attempt to correct mistakes after they occur. You should have an attorney at the first interview with the Title IX investigator and have an opportunity to prepare with the attorney beforehand. Immediately save all texts, emails, social media, and other communications with the accuser to a thumb drive or another safe place. If you can’t readily access the content of your texts, there is software available to help retrieve and save them. Take screenshots of the accuser’s social media postings before and after the alleged incident. If you are blocked or unable to access the accuser’s social media, ask someone else if they can take screenshots. Do NOT contact the accuser, and do not ask your friends to contact the accuser. Most colleges will impose a No Contact Order between you and the accuser, and you do not want to violate that. Even if there is no order, you do not want to be accused of harassment. Do NOT ridicule or speak negatively about the accuser on social media or to others. Refrain from posting about the matter and exercise caution when discussing it with others on campus. Create a chronological outline of relevant events leading up to and after the alleged incident, including your communications with the accuser. Be as thorough and detailed as possible. Include names of witnesses, times, dates, and locations wherever possible. Make a list of individuals who have relevant information and collect their contact information. Keep a log of all communications with the school and Title IX office and save every email and written communication. Download and save your college’s policy and procedures on sexual misconduct that were in effect at the time of the alleged incident, and those in effect currently (policies may have changed.) Final Thoughts College students facing a Title IX investigation often feel shocked, confused, and isolated. But you are not alone, and your future is worth protecting. Seeking qualified legal guidance right away and following these practical steps can help you assert your rights and prepare your defense effectively. What you do within the first few hours and days can have a long-lasting impact. Ensure those steps are the correct ones.
September 9, 2025
Labor and Employment
Department of State Limits Nonimmigrant Visa Applications
On Saturday, September 6th, 2025, the Department of State announced that, effective immediately, all applicants for U.S. nonimmigrant visas (NIV) should schedule their visa interview appointments at the U.S. Embassy or Consulate in their country of nationality or residence. Individuals who currently have appointments booked are advised that their appointments “generally will not be cancelled” – however, no guarantee is made that their NIV will be issued. This policy changes the current guidance for so-called “third country nationals,” i.e., individuals who apply for a visa outside of their home country. It has been a long-standing policy that individuals can apply for an NIV anywhere in the world. Some embassies have pushed back on third-country nationals due to the overwhelming number of requests. Some examples include Canada, Mexico, and smaller consulates such as the Bahamas. This change drastically affects the visa options for individuals from countries with lengthy wait times and delays in visa processing. Indian nationals can no longer avail of interview waivers, and the current NIV wait times of two-three months are set to dramatically increase. This change underlines the importance of planning ahead for travel and understanding all potential risks. Individuals and employers should carefully consider the implications of travel if an individual would be required to travel to another country for an extended period. Finally, individuals with current visa appointments should consult with an immigration attorney to assess the risks of attending their visa interview. What is residency for NIV purposes? No further guidance is provided on what NIV applicants should provide to demonstrate residence in the country in which they are applying. Accordingly, applicants should carefully assess the totality of evidence that they can provide to an Embassy ahead of their appointment. It is advisable to have as much evidence as possible of residency at the interview to avoid any lengthy administrative processing. Exceptions to the rule? The current guidance states that “rare exceptions may also be made for humanitarian or medical emergencies or foreign policy reasons.” With no further guidance immediately available, it is safe to assume that exceptions will be very limited. Typically, humanitarian exceptions can include family unity reasons, as well as deaths or illness within a family, so applicants can potentially advocate for an exception on these grounds. The risks are substantial as the applicant may only be informed that their visa application is not eligible for processing at the interview. Accordingly, caution is advised when exploring exceptions in this area. But what if there is no US Embassy in my home country? Further guidance was provided for NIV applicants where NIV processing is suspended in their home country; they should make an appointment at their designated NIV consulate or embassy: NATIONAL OF DESIGNATED LOCATIONS(S) Afghanistan Islamabad Belarus Vilnius, Warsaw Chad Yaoundé Cuba Georgetown Haiti Nassau Iran Dubai Libya Tunis Niger Ouagadougou Russia Astana, Warsaw Somalia Nairobi South Sudan Nairobi Sudan Cairo Syria Amman Ukraine Krakow, Warsaw Venezuela Bogota Yemen Riyadh Zimbabwe Johannesburg
September 8, 2025
Construction
Pennsylvania’s Construction Statute of Repose Under Attack
For more than 40 years, Pennsylvania’s Construction Statute of Repose (SOR) has given contractors, engineers, and architects the assurance that liability for completed projects eventually comes to an end. That is because, after 12 years from substantial completion, all claims are barred, no matter when the alleged defect is discovered. That certainty, however, is under direct attack in Pennsylvania. Currently, two cases are pending before the Pennsylvania Supreme Court seeking to expand liability in ways that undermine the statute’s purpose and create indefinite exposure for architects, engineers, and construction contractors. In our role as A/E/C industry advocates, Offit Kurman was engaged by leading construction industry associations to file friends of the court briefs (amicus briefs) in both appeals to Pennsylvania’s highest court. Offit Kurman Advocates for AEC Groups in Key PA Construction Case Nine AEC Professional Associations Advocate in Pennsylvania Supreme Court Case What is the Construction Statute of Repose? A statute of repose, by definition, sets a definitive event for the statutory period to begin and then provides for an expiration period that is not tolled. The statute of repose differs fundamentally from a statute of limitations because repose can operate to bar a lawsuit before a cause of action accrues. By contrast, a statute of limitations runs from the time of injury or reasonable discovery of harm. For more than 40 years, the Pennsylvania Construction Statute of Repose has created a hard cutoff point for lawsuits brought against architects, engineers, and contractors who furnish design, planning, and construction services for any improvement to real property. Generally, this requires any such suit to be brought within 12 years of substantial completion. Once the repose period expires, all claims are barred, even if the defect was hidden or the injury occurred later. There are various policy considerations for the adoption of a construction statute of repose. First, unlike most products and services, architectural, engineering, and construction services that improve real property are intended to long outlive the owner. Because the intent is for buildings and infrastructure projects to have long life spans, which include renovation and rehabilitation, state legislatures have typically limited the time period during which construction professionals can be held liable for alleged design and construction defects. The reality is that there is a practical balance: involving years elapsing, records being lost, memories fading, and the individuals who were involved on the projects being unavailable, as a result of retirement or death, that makes defending against stale claims exceptionally difficult. By creating a clear endpoint, construction statutes of response protect the A/E/C industry while also ensuring predictable costs for owners and the public. State legislatures within 48 of the United States have adopted a construction statute of repose. Pennsylvania’s 12-year statute of repose ranks as one of the two longest statutes of repose in the country. Aloia v. Diament – The Meaning of “Lawfully Performing” The first challenge seeks to nullify the construction statute of repose arguing that the statutory provision which states that a person “lawfully performing” means that if a plaintiff alleges any violation of a regulation or building code the statutory period does not start to run. In Aloia v. Diament, a homeowner argues that because the construction of the home’s exterior envelope allegedly violated building codes, the contractor was not “lawfully performing” the construction work. On that basis, the plaintiffs contend the 12-year repose period never began to run, leaving the claims alive decades later. Offit Kurman’s amicus brief, filed on behalf of leading national and state design professional associations, including the American Institute of Architects and American Council of Engineering Companies, makes clear that plaintiffs’ argument completely erases Pennsylvania’s construction statute of repose by not paying attention to the plain and unambiguous text and purpose. Nearly every design and construction defect claim involves alleged code and regulatory violations; if “lawfully performing” meant “perfect,” the repose period would never commence to run. Instead, “lawfully performing or furnishing” design or construction services clearly means authorized, meaning that the design professional or contractor was licensed or otherwise permitted to perform the work. This interpretation aligns with Black’s Law Dictionary (“authorized or sanctioned by law”) and with the legislative purpose of the statute of repose. In other words, “lawfully performing” modifies the qualifications of the architect or engineer, not whether every detail of the design complies with every regulatory or code provision. Clearfield County v. Transystems – Public Projects and Nullum Tempus The second case on appeal to the Pennsylvania Supreme Court arises from renovations to the Clearfield County Jail. The original construction of the Clearfield County Jail was substantially completed in 1981. In 2021, more than 40 years after its substantial completion, the county alleged design and construction defects in the original design and construction seeking to avoid the construction statute of repose by invoking nullum tempus occurrit regi—the ancient common law doctrine that “time does not run against the king.” The county argues that nullum tempus exempts it from the 12-year bar. Offit Kurman was asked by nine design professional and construction associations, including ACEC-PA and all Pennsylvania Chapters of the Associated Builders and Contractors, to prepare an amicus brief in opposition to the county’s position. The amicus brief emphasizes three main points: Statutory Finality – The construction statute of repose eliminates causes of action after 12 years, thereby legislatively abrogating the common law doctrine of nullum tempus. Sovereign Immunity Limits – Nullum tempus is a privilege of the Commonwealth itself, not counties or municipalities. Voluntary Contracting – Even if nullum tempus applied more broadly to a statute of repose, it cannot shield a governmental entity voluntarily entering into design and construction contracts to improve real property. If accepted, Clearfield’s argument would mean every public project remains open to claims indefinitely, driving up insurance premiums, discouraging bidders, and ultimately increasing costs for public improvements for the taxpayers of the Commonwealth. Proposed Legislative Reforms to the Statute of Repose Because of the importance of the statute of repose, Offit Kurman has provided legal advice to associations within the A/E/C industry on legal reforms to bring the 12-year statute of repose in line with statutes adopted by other states, so that Pennsylvania is not at a competitive disadvantage. In addition, the legislative coalition of A/E/C trade associations is seeking to address the potential negative outcome of either of the Supreme Court appeals. Senate Bill 399 is currently referred to the Senate Judiciary Committee and would shorten Pennsylvania’s statute of repose from 12 years to six, bringing it closer to the national norm. Why It Matters If either appeal reverses the findings of the trial courts or if legislative reforms are not adopted, the impact on Pennsylvania’s construction economy will be profound. The potential ramifications include: Indefinite Liability – Design professionals and contractors would face claims long after projects reach substantial completion, even into retirement or estate administration. Insurance Burdens – Design Professionals and contractors would be required to carry liability insurance indefinitely, even when such coverage almost certainly is not available. Increased Costs – Design Professionals and contractors will build risk premiums into proposals and bids for public and private projects, passing costs directly to taxpayers and owners. The construction statute of repose was enacted in 1965 to prevent exactly these outcomes. Offit Kurman’s Construction Practice Group continues to work with A/E/C design and construction to protect the industry. Franklin C. Miller, Jr., Counsel at Offit Kurman, played a key role in supporting Anthony Potter with the preparation of the amicus brief. We also acknowledge the valuable contributions of Law Clerk Robyn St. Hilaire to this article.
September 5, 2025
Commercial Litigation
Shutting Down a Scam Lawsuit in Three Days
Imagine waking up to a bank notification that you just received money from a total stranger. That’s exactly what happened to a recent out-of-state client of mine. Eight months pregnant, no ties to Virginia, and without a clue as to who the mystery sender was. Suspecting an honest mistake, or at worst, fraud, she immediately contacted her bank and had the mysterious Zelle transaction reversed that same day. Problem solved, right? Not even close. From Push Notification to Pressure Campaign A few days after the reversal, my client began receiving text messages and phone calls from someone claiming to be the original sender. This individual insisted that she return the money, despite the bank having already reversed the transaction. The client calmly explained this and cut off contact. Then came the real twist. Weeks later, she was served with a Warrant in Debt in Virginia from someone she had never heard of. Panic set in. Not only was she facing a court hearing in a state where she didn’t reside, but she had less than a week to respond. That’s when she called me. Three Names, Zero Credibility When I reviewed the case, it quickly became clear: this wasn’t a legitimate debt collection, but rather a shakedown. The person who filed the lawsuit wasn’t the one who originally Zelle’d her the funds, nor was it the same individual who had been texting and calling her. In fact, three different names were tied to this single scam. Furthermore, the claim was riddled with procedural issues, including questionable service, jurisdictional overreach, and no coherent claim. It had all the hallmarks of a desperate (and sloppy) attempt to intimidate someone into paying money they didn’t owe. Courtroom Showdown — Or Not I appeared on her behalf at the hearing. When the would-be scammer saw I was there and prepared with a stack of papers, he looked stunned. Clearly, he didn’t expect anyone to show up, let alone with legal representation ready to pick apart the claim. I laid out the numerous procedural deficiencies and jurisdictional arguments. The plaintiff folded. The case was dismissed immediately. Why This Case Matters This case serves as a reminder of how scammers are evolving and how the legal system can be weaponized in new ways to harass and intimidate. It’s also a testament to how effective legal help can make a difference. With just a few days’ notice, we were able to respond, appear, and get the case thrown out. Allowing the client to put the ordeal behind her. If you’ve been blindsided by a suspicious lawsuit or served with something that just doesn’t feel right, trust your instincts and don’t wait. Getting a legal opinion early can be the difference between panic and peace of mind.
August 29, 2025
Bankruptcy
One Way or Another: Non-U.S. Crypto Customers Will Have to Face Celsius Preference Lawsuits
Why You Should Read Terms Before You Click or Check the Box with “I Agree” As Blondie sings: One way, or another, I'm gonna find ya I'm gonna get ya, get ya, get ya, get ya One way, or another, I'm gonna win ya I'm gonna get ya, get ya, get ya, get ya Earlier this summer, the Bankruptcy Court for the Southern District of New York rejected a challenge to the Litigation Administrator, Moshin Y. Meghji, lawsuits against Celsius Network LLC customers. The challenge was based on, among other grounds, lack of personal jurisdiction over defendants who resided outside of the United States and undertook transactions with Celsius online. The litigation administrator asked the Bankruptcy Court to hold that the foreign defendants were subject to personal jurisdiction, and that the preferential transfers they received were domestic transfers for the purposes of the preference avoidance provisions of the Bankruptcy Code, or, in the alternative, that these provisions of the Code applied extraterritorially. The foreign defendants argued that jurisdiction cannot be decided without a factual record, given questions about which entity owned the crypto, inconsistent Terms of Use provisions, potential fraudulent inducement, and the heavy burden on foreign defendants to litigate in the U.S. In his July 29 decision, Judge Glenn held that a bankruptcy court may exercise jurisdiction over a foreign defendant if the defendant has minimum contacts with the United States as a whole. The court further found that, as to all customers, the transfers were domestic and involved a domestic application of the Bankruptcy Code. Because the transfers are domestic in nature, the court did not reach the issue of extraterritoriality[1]. The court held that the transfers were domestic in nature because they were made from a Delaware company via LLC-designated frictional wallets and workspaces. The court’s analysis meticulously followed the textbook test for exercising specific personal jurisdiction over a non-resident defendant. Judge Glenn reviewed the three requirements that must be satisfied: “(i) a defendant must have purposefully availed itself of the privilege of conducting activities within the forum State or have purposefully directed its conduct into the forum State, or the United States when the issue arises in adversary proceedings in bankruptcy courts; (ii) the plaintiff’s claim arises out of or relates to the defendant’s forum conduct; and (iii) the exercise of jurisdiction must be “reasonable under the circumstances.” U.S. Bank Nat’l Ass’n v. Bank of Am. N.A., 916 F.3d 143, 150 (2d Cir. 2019).” Why the Court Found There was Personal Jurisdiction All non-US customers were bound by the Terms of Use, which contained a New York choice of law provision and a forum selection clause requiring litigation in New York courts, and that had shifted Celsius’ primary business operations, relationships, and obligations away from a U.K. entity to a U.S. company. Accordingly, the Bankruptcy Court found that the foreign defendants’ decision to contract with the U.S. company manifests an intent to purposefully direct their activities at the forum. Defendants have contracted to open accounts in a U.S.-based entity and signed a contract subject to the laws of the State of New York. The transfers were made by a U.S. entity to the foreign defendants accounts. “[A] contract with a New York choice of law provision is “a significant factor in a personal jurisdiction analysis because the parties . . . invoke the benefits and protections of New York law.” In re Celsius Customer Preference Actions, No. 24-04024 (MG), 2025 WL 2125270 (Bankr. S.D.N.Y. July 29, 2025) citing Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec., LLC, 460 B.R. 106, 117 (Bankr. S.D.N.Y. 2011), aff'd, 474 B.R. 76 (S.D.N.Y. 2012). These principles, Judge Glenn, emphasized also apply to clickwrap agreements. Id. at 12 citing Zaltz v. JDATE, 952 F. Supp. 2d 439, 451–55 (E.D.N.Y. 2013) (finding plaintiff assented to defendant’s terms of service when she clicked a box agreeing to the defendant's terms of service). Additional analysis of the forum selection clauses also supported the finding of personal jurisdiction over the foreign defendants. The Terms of Service included the following language: [t]he relationship between you and Celsius is governed exclusively by the laws of the state of New York. . . . Any dispute arising out of, or related to, your Celsius Account or relationship with Celsius must be brought exclusively in the competent courts located in New York, NY and the U.S. District Court located in the Borough of Manhattan. . . . Judge Glenn held that the Terms of Use were reasonably communicated to the defendants, the forum selection clause was mandatory, and the claims and parties involved in the litigation were subject to the forum selection clause. Lastly, the court held that the foreign defendants have not demonstrated a strong showing to rebut the presumption of enforceability. The court was not persuaded by the argument that an individualized determination with respect to each defendant was necessary, and the court could not rule on the defendants “en masse,” because the defendants did not dispute that the Terms of Use that were active during the preference period contained a forum selection clause. While allegations of fraudulent inducement and other defenses may be addressed in future proceedings, the court concluded that the litigation administrator had made a prima facie showing of personal jurisdiction over all defendants. In summary, Judge Glenn’s decision reinforces a clear message: engaging with U.S.-based platforms — even digitally —comes with legal obligations. The ruling not only affirms the reach of U.S. bankruptcy jurisdiction but also sets a precedent for how courts may treat cross-border crypto transactions going forward. The fine print matters! [1] As Judge Glenn pointed out the presumption against extraterritoriality is a “basic premise of our legal system.” It provides that “[a]bsent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application.” RJR Nabisco v. Eur. Cmty., 579 U.S. 325, 335 (2016) (citing Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 255 (2010)). The two-step inquiry, when analyzing extraterritoriality issues, requires to ascertain if a statute gives a clear indication of an extraterritorial application and if there is no such clear indication of an extraterritorial reach then a court has to examine the statute’s ‘focus’ to determine whether the case involves a domestic application of the statute.
August 27, 2025
Business
Non-Compliance with CMMC Could Put Your DoD Contracts at Risk
This past month, the Department of Defense sent the final rule for the new Cybersecurity Maturity Model Certification (CMMC) program under the Federal Acquisition Regulation to the Office of Information and Regulatory Affairs for review. This action precedes the inclusion of the new rule in Department of Defense contracts beginning this autumn. So, it is time to get into compliance for all who have been delaying the inevitable. Below is a quick review of these requirements. Background CMMC is designed to bolster the cybersecurity posture of the DoD’s supply chain by validating that DoD contractors and subcontractors possess the necessary cybersecurity practices and processes to safeguard Federal Contract Information (FCI) and various kinds of Controlled Unclassified Information (CUI). CMMC introduces a tiered, certification-based approach, ranging from Level 1 (basic cybersecurity practices for FCI) to Level 2 (advanced practices for most CUI), and Level 3 (expert practices for sensitive CUI). Why is This Important? Contractors and subcontractors must attain the appropriate CMMC level aligned with the security requirements of their contracts to bid and work on DoD projects. In addition to the cybersecurity and reputational risks of non-compliance, if contractors and subcontractors fib or cut corners, they could face False Claims Act (FCA) liability, including draconian damage and penalty assessments. One disgruntled employee who decides to bring an FCA complaint can cost a company significant pain. Contracts Covered by CMMC The CMMC requirement applies to DoD acquisitions that involve the handling of FCI and CUI. Major Contract Programs: Contracts for the procurement of defense systems, weapons, military equipment, and related services that require access to CUI or FCI will be directly impacted. This includes a broad spectrum of procurement categories across the DoD, from large-scale hardware contracts to software development and services. Subcontractors and Supply Chain: Importantly, the rule also extends to subcontractors at all tiers. This flow-down creates a ripple effect throughout the defense supply chain. Contracts Not Subject to CMMC While the rule is broad, it does not universally apply to all federal contracts. FAR Part 12 Commercial Item Contracts: Some commercial item contracts purchased under FAR Part 12 may be excluded unless the scope involves sensitive information or national security concerns. Contracts with No Access to CUI or FCI: Contracts that do not involve access to or handling of CUI/FCI will not be subject to CMMC requirements. Other Exceptions: The FAR Council has provisions for exemptions for technical or administrative reasons, but these are limited and require justification. What is FCI If you are a contractor or subcontractor that handles controlled information such as CUI, you likely have some sophistication regarding cybersecurity. But those with FCI may not be aware that they have protectible information, and most medium and larger-sized DoD contracts will have FCI. FCI refers to information that is not intended for public release but is provided by the federal government to a contractor or subcontractor for the purpose of fulfilling a federal contract. It includes data that is critical to the performance of government contracts. Examples include technical data (e.g., details about a supplier’s hardware specifications), contract schedules and milestones (e.g., timelines for delivering military equipment), and financial or administrative information shared with contractors. Typical Contracts:Smaller contracts Basic supply chain activities FCI Requires Level 1: Basic Cyber Hygiene Key Requirements: Implementation of basic controls, including access only by authorized users, maintaining identification and authentication, and physical protection of information systems. Practices include routine login credentials, portable device protections, and basic awareness training. Annual self-assessment and annual affirmation of compliance with CMMC requirements. What is CUI It’s not classified information, but it is information that requires safeguarding pursuant to various laws, regulations, and government policy. Examples include information about physical security, system vulnerability, or operational issues. CUI Requires Level 2 (Intermediate) or Level 3 (Expert) Processes Level 2: Intermediate Cyber HygienePractices: 110 practices, aligned with NIST SP 800-171 security requirements. Focus: Establishing more disciplined cybersecurity processes and practices suitable for organizations handling CUI. Third-party assessments are required for certification at this level. Level 3: Expert Cyber HygienePractices: Over 130 security controls, closely aligned with NIST SP 800-171, plus some additional practices. Focus: A mature, enterprise-wide cybersecurity program. This will apply only to a limited number of contractors with larger, more sensitive defense contracts that require higher levels of CUI protection. Third-party assessment is required.
August 27, 2025
Labor and Employment
Evolving Standards for Religious Accommodations at Work
The legal framework surrounding religious accommodations in the workplace has evolved significantly, driven by recent court decisions, EEOC enforcement actions, and federal guidance. Employers must gain a clear understanding of these changes, to ensure compliance with Title VII of the Civil Rights Act of 1964. With heightened scrutiny on religious exemption requests, particularly in the wake of COVID-19 vaccine mandates, employers must stay informed to avoid costly litigation and foster inclusive workplaces. Key Court Rulings Clarify Religious Accommodation Standards Recent judicial decisions have reshaped how employers must evaluate religious accommodation requests under Title VII. Below are pivotal cases that highlight the courts’ focus on sincerity of belief and the elevated standard for denying accommodations. Second Circuit: Defining Sincerely Held Beliefs In Gardner-Alfred v. Federal Reserve Bank of New York, 143 F.4th 51 (2d Cir. 2025), the Second Circuit offered critical guidance on assessing “sincerely held” religious beliefs in the context of COVID-19 vaccine mandate exemptions. The Federal Reserve Bank of New York (FRBNY) terminated two employees after denying their religious exemption requests. The court’s ruling clarified: Low Threshold for Sincerity: Plaintiff Gardner-Alfred’s exemption request was dismissed due to its reliance on a generic “exemption package” lacking ties to specific religious practices. Employers can expect courts to require detailed, individualized expressions of belief. Inconsistency Does Not Disqualify: Co-plaintiff Diaz’s claim was revived despite inconsistent behavior (e.g., using medications potentially conflicting with her religious objections). The court emphasized that imperfect adherence does not negate sincerity. Misunderstandings Are Valid: Diaz’s objection to mRNA vaccines, based on a mistaken belief about fetal cell lines, was deemed genuine. Employers cannot dismiss requests due to factual inaccuracies. Other Landmark Cases Groff v. DeJoy, 143 S. Ct. 2279 (2023): The Supreme Court raised the bar for denying accommodations, requiring employers to show a “substantial increased cost” or operational burden. This decision significantly strengthens employee protections. Keene v. City and County of San Francisco, No. 22-16567 (9th Cir. 2024): The Ninth Circuit ruled that blanket denials of religious exemptions, without engaging in the interactive process, violate Title VII. Bube v. Aspirus Hospital, Inc., No. 22-cv-745 (W.D. Wis. 2024): A federal district court rejected a hospital’s denial of exemptions based on vague claims of workplace disruption, reinforcing the need for specific evidence of undue hardship. Employers must conduct individualized, respectful inquiries into the sincerity of religious beliefs and avoid denials based on assumptions or skepticism. EEOC’s Robust Enforcement of Religious Rights The Equal Employment Opportunity Commission (EEOC) has intensified its focus on religious accommodations, particularly in response to COVID-19 vaccine mandate disputes. Key developments include: Recent EEOC Appellate Decisions (August 4, 2025) The EEOC’s Office of Federal Operations issued three decisions clarifying accommodation standards: Department of Veterans Affairs: A physician requesting Friday afternoons off for prayer was offered reduced hours or an overly burdensome schedule. The EEOC ruled these options unreasonable, noting that accommodations causing employee disadvantage (e.g., reduced pay) are insufficient. Claims of “low morale” among staff were also deemed inadequate justification. Federal Reserve Board: A law enforcement officer’s exemption request was denied without exploring accommodations or documenting hardship. The EEOC applied the Groff standard retroactively, emphasizing the need for a thorough process. EEOC’s Enforcement Milestones (August 18, 2025) In its “200 Days of EEOC Action to Protect Religious Freedom at Work” press release, the EEOC reported: Over 10,000 charges related to religious accommodations for COVID-19 vaccine mandates More than $55 million recovered for workers, including a $1 million settlement with Mercyhealth Lawsuits against organizations like Silver Cross Hospital and the Mayo Clinic for improper denials of religious exemptions The EEOC is prioritizing robust enforcement, and employers face significant risks for cursory or unsubstantiated denials of religious accommodations. Federal Guidance Promotes Accommodation The Office of Personnel Management (OPM) issued memoranda on July 16 and July 28, 2025, urging federal agencies to adopt a pro-accommodation stance. Key points include: Emphasizing a good-faith interactive process with detailed documentation Encouraging low-cost solutions like telework or flexible scheduling, which require strong justification if denied While directed at federal agencies, these guidelines reflect broader expectations for all employers under Title VII. Practical Steps for Employers To navigate this high-scrutiny environment, employers should adopt the following strategies. Risk Area Actionable Steps Sincerity Challenges Conduct respectful interviews, focusing on the employee’s stated beliefs. Avoid demanding theological proof or overly intrusive inquiries. Undue Hardship Claims Provide specific, data-backed evidence of substantial costs or operational burdens. General claims like “staff discomfort” are insufficient. Manager Training Train supervisors on clear protocols for handling accommodation requests compassionately and escalating them appropriately. Policy Review Update accommodation policies to align with the Groff standard and EEOC’s enforcement priorities. Ensure procedures are transparent and consistent. Documentation Log every step of the interactive process to demonstrate compliance and build a defensible record. The Lasting Impact of COVID-Era Policies The legal and regulatory focus on religious accommodations, spurred by COVID-19 vaccine mandates, has created a lasting shift in employment law. From scheduling adjustments to exemption requests, religious considerations are now central to workplace compliance. Employers must stay proactive, ensuring policies and practices reflect the latest legal standards to avoid litigation and promote a respectful, inclusive workplace.
August 25, 2025
Estates and Trusts
Trust Protectors – Should You Have One?
When creating a trust, determining who you want to serve as trustee(s) and benefit from the trust as beneficiaries are decisions that need to be made for every trust. The role of “trust protector” may not be as commonly known or understood, but the decisions whether to have one and, if so, who might best serve in the role, can be key to a smooth administration. A “trust protector” can provide valuable trustee oversight, flexibility, and inexpensive revisability — especially in long-term or complex trust arrangements. Deciding whether to have one and, if so, who might best serve in the role, can be key to a smooth trust administration. What is a Trust Protector? A “trust protector” is a person or entity appointed to monitor and, if necessary, intervene in the administration of a trust. Unlike a trustee, the trust protector does not manage trust assets or distributions. Instead, they are granted specific powers, defined in the trust document, to ensure the trust continues to operate in line with the grantor’s intent. Typical powers of a trust protector may include some combination of the following: Removing or replacing a trustee Amending trust provisions to comply with changes in law Resolving disputes between trustees and beneficiaries Approving or vetoing certain trustee actions This role is especially useful in irrevocable trusts, where flexibility is generally pretty limited. Does My Trust Need a Trust Protector? Not every trust requires a trust protector, but there are several scenarios where appointing one may make more sense: Long-Term Trusts: Trusts designed to last decades or generations benefit from a mechanism to adapt to changing laws and circumstances. Irrevocable Trusts: Since these trusts are difficult to modify, a trust protector can provide limited flexibility without court involvement. Complex Family or Business Dynamics: If there’s potential for conflict or concern about trustee performance, a trust protector can serve as a neutral safeguard. Asset Protection or Offshore Trusts: These often include a trust protector as a standard feature to enhance oversight and control. How Do I Choose the Right Trust Protector? If you’ve chosen to include a trust protector, how do you how do you decide which person is the right fit for your particular trust? Electing the appropriate trust protector is critical to ensuring the role adds value rather than complexity, and every situation should be evaluated on its own merits. That said, you might want to consider some or all of the following when making your choice: Independence: Ideally, the trust protector should not be either a beneficiary or a trustee to minimize or avoid altogether potential conflicts of interest. Expertise: Legal, financial, or fiduciary experience is beneficial, especially if the trust is complex or long-term. Trustworthiness: As the name implies, this role requires someone who can be relied upon to act in good faith and consistently with and in furtherance of the grantor’s intent. Availability: The trust protector should be willing and able to serve for the duration of the trust or have a succession plan in place. Often, clients choose a trusted advisor, attorney, or corporate fiduciary to serve in this role. Common Misconceptions About Trust Protectors Despite their growing use, the purpose and/or responsibilities of trust protectors can be misunderstood. Here are a few common misconceptions: “Trust protectors replace trustees.” It depends on what is meant by “replace” in this context. They generally oversee and intervene with the authority to replace one or more trustees with another only when necessary (such as when a trustee is perceived to be abusing his or her position or failing to carry out the terms or intentions of the trust). Trust protectors do not, however, manage assets or make routine decisions by substituting or “replacing” their own judgment for that of the appointed trustee(s). “Only large or offshore trusts need a trust protector.” While the use of trust protectors is common for large or offshore trusts, trust protectors can be helpful in domestic estate plans, especially where flexibility or oversight is desired. Reasons why a particular trustee may have been named at the time of drafting may no longer apply when the time comes. Successor trustees may not be in a position to step in as established in the trust (due to age or health issues, for instance). With a trust protector in place, it can be like having an added layer of defense against life’s unexpected twists. “Appointing a trust protector complicates the trust.” If “complicates” means the addition of more words, then yes, the addition of a trust protector does complicate things. Nevertheless, when properly drafted, a trust with a built-in protector can simplify administration of the trust and reduce, or even eliminate altogether, the need for court involvement. Take the situation faced by Jimmy Buffett’s widow. With Jimmy’s former legal counselor/advisor and his wife on equal footing as trustees, they quickly deadlocked over what can, should, or must be done with the assets and distributions. A well-chosen trust protector in Jimmy Buffett’s case could have served as the needed tie-breaking vote and/or insisted upon a “change in attitude” or occasioned a “change in latitude” by ousting whichever of the trustees, in the judgment of the trust protector, seemed to be missing the settlor’s intention, or as Jimmy might have said, acting as the “people our parents warned us about.” Final Thoughts A trust protector is not an essential requirement but, in the right circumstances, can be a valuable addition to a trust. The presence of a trust protector can serve as a “check and balance” feature to help ensure your trust remains effective, adaptable, and aligned with your goals over time by providing oversight after you passed on. If you're wondering whether a trust protector is right for a new trust you are considering, simply be sure to mention it to your estate planner/drafting attorney. If considering revising an existing trust to add a trust protector, seek a second opinion, separate from the initial drafting attorney, to evaluate your specific needs and objectives and whether these are more likely to be met with or without a trust protector.
August 25, 2025
Labor and Employment
Pregnancy and Lactation in the Workplace: Employer Duties Under Federal Law
August is the most popular birth month in the U.S., meaning many employees will return from parental leave this fall and winter with new postpartum needs. Two key federal laws – the PUMP Act and the Pregnant Workers Fairness Act (PWFA) – shape the legal obligations employers must provide to nursing employees and others with pregnancy-related conditions. Understanding these laws is essential for compliance and creating a supportive workplace for new parents. PUMP Act The Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”), 29 U.S.C. § 218d, signed into law in December 2022, expands protections under the Fair Labor Standards Act (FLSA) for employees who need to express breast milk at work. The PUMP Act requires that employers provide reasonable break time, whenever needed, for an employee to express breast milk for her nursing child during the first year after birth and prohibits denying a covered employee a necessary pumping break. The law also requires employers to provide a space, other than a bathroom, that is shielded from view and free from intrusion by coworkers and the public. These protections apply to nearly all FLSA-covered employees; however, certain employees of airlines, railroads, and motorcoach carriers are exempt from the law, and employers with fewer than 50 employees are not subject to the break time and space requirements if compliance would impose an undue hardship. Even so, employees who are exempt under federal law may still be entitled to protections under state or local laws. The PWFA The Pregnant Workers Fairness Act, 42 U.S.C. §§ 2000gg to 2000gg-6, effective June 27, 2023, requires covered employers to provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions, unless doing so would cause undue hardship. Examples of reasonable accommodations under the PWFA include modified work schedules to allow for pumping, additional breaks beyond those required by the PUMP Act, and temporary changes in duties to reduce postpartum physical strain. The PWFA covers private and public sector employers with 15 or more employees, Congress, federal agencies, employment agencies, and labor organizations. 42 U.S.C. § 2000gg(2). Employers can take several proactive measures to comply with the PUMP Act and PWFA while supporting pregnant, nursing, and postpartum employees. Employers should start by reviewing and updating workplace policies to ensure they reflect the requirements of both laws, including clear procedures for requesting accommodations and designating appropriate lactation spaces that meet the PUMP Act standards for privacy and accessibility. Employers should also have processes in place to ensure that managers, supervisors, and HR personnel understand how to promptly respond when an employee raises a pregnancy- or postpartum-related need or accommodation request. Finally, maintaining open communication with employees returning from parental leave by proactively providing information on their rights and the resources available to them can help prevent misunderstandings, reduce legal risk, and foster a more supportive and inclusive workplace culture.
August 22, 2025
Bankruptcy
Fifth Circuit Confirms Third-Party Liens Survive Chapter 11 Discharge
The Fifth Circuit has confirmed the old adage that liens “ride through” bankruptcy regardless of a discharge. Reversing a Texas bankruptcy court, the Circuit Court has held that a statutory privilege (a lien) against property of a non-debtor cannot be extinguished by a Chapter 11 discharge or by a plan provision stating that the underlying claim is “settled” or “satisfied” by the plan’s payments. In In re Dynamic Offshore Res. NS, L.L.C., 2025 WL 1651901 (5th Cir. June 11, 2025), the panel reversed the Bankruptcy Court for the Southern District of Texas and held that an oil driller’s “statutory privilege” under Louisiana law to a lien against an oil well site’s owner or lessee was not extinguished by the Chapter 11 discharge or the confirmed plan’s provisions that creditors’ payments are in “settlement” and “satisfaction” of their claims. The debtor, Fieldwood, an oil well operator, had failed to pay a driller $13 million for its services prior to the bankruptcy case. The driller sought to enforce its statutory privilege against the site lessee under Louisiana law, but the lessee argued that the confirmed plan, which discharged the debt and indicated confirmation constituted a “satisfaction’ of the claim, meant the lien could no longer be enforced. Of course, the “black letter” rule that a lien “rides through” bankruptcy regardless of discharge would seem to apply. The twist was that under the “Louisiana Oil Well Lien Act” (LOWLA), the “privilege [was] extinguished ... [u]pon extinction of the obligation it secures.” So, the debtors were able to argue that, if the discharge or confirmed plan rendered the debt “extinct,” then the lien must be extinguished as well. They managed to get the bankruptcy court’s attention. After first ruling that the lien was not extinguished, Judge Isgur reversed himself and found that the obligation was rendered “extinct” by the discharge and plan provisions stating that creditor payments were in “settlement” and “satisfaction” of claims. A settlement and satisfaction, Judge Isgur reasoned, meant that the obligation ceased to exist, meaning the privilege must be extinguished. On appeal, the court noted the well-known rule that a discharge does not extinguish a claim but simply operates as a permanent injunction against its collection. So, the discharge couldn’t be grounds for extinguishing the lien under Louisiana law. The panel then noted that plan’s “settlement” and “satisfaction” language applied only to the relationship between the creditor and the debtor and cannot release a third-party from the underlying lien rights. Taking its cues from Purdue, the panel stated that not only were non-consensual release provisions generally prohibited by the code, but that no third-party release could arise from general language such as “settlement” or “satisfaction,” because such releases must be stated specifically in the language of the plan.
August 21, 2025
Sports Entertainment and Media
Federal Court Rules SoundExchange Lacks Standing in SiriusXM Royalty Dispute
Judge Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York dismissed SoundExchange's $150 million lawsuit against SiriusXM, finding that the performance rights organization lacks legal standing to pursue litigation against broadcasters. The August 7, 2025, decision centered on allegations by SoundExchange, a non-profit entity designated by Congress as the singular entity responsible for collecting and distributing digital performance royalties for sound recordings, that SiriusXM manipulated its revenue accounting to shortchange artists on royalties stemming from the company’s satellite radio services. SoundExchange based its suit primarily on Section 114 of the U.S. Copyright Act, and claims that the underpaid royalties by SiriusXM have climbed since filing the initial suit in 2023, now allegedly exceeding $400 million. Judge Buchwald's opinion concluded that while Section 114 of the Copyright Act designates SoundExchange as the authority for collecting and distributing digital performance royalties, Congress never explicitly granted the body a private right to enforce nonpayment through litigation —unlike Section 115 — which expressly confers similar litigation powers to The Mechanical Licensing Collective. Notably, Judge Buchwald did not specifically address the merits of SiriusXM’s alleged nonpayment, restricting analysis solely to the threshold issue related to Section 114 of the Copyright Act, potentially leaving a door ajar for further enforcement by SoundExchange. SoundExchange disputed the ruling, calling Judge Buchwald's interpretation "entirely wrong on the law" and argued that Congress's inclusion of the word "enforcement" in Section 114 necessarily implies litigation authority. The organization contends that being charged with collecting and distributing royalties without the ability to bring legal action against non-compliant licensees would undermine the entire statutory licensing framework's function and efficiency. SoundExchange also points to practical precedent, noting as well that SiriusXM has acknowledged in prior disputes that SoundExchange reserves the right to sue for compliance. The ruling may have broader implications beyond the immediate SiriusXM case, affecting SoundExchange's enforcement capabilities across the digital music industry, including pending lawsuits against Napster and Sonos for similar nonpayment. SoundExchange is considering an appeal to the Second Circuit and potentially filing actions in state courts to preserve its enforcement mechanisms. The case presents a fundamental question about Congressional intent in creating the modern digital music licensing framework and whether administrative efficiency requires corresponding enforcement authority, with the resolution likely to have lasting implications for the balance of power between streaming services and rights holders in the music industry.
August 20, 2025
Family Law
Can You Start Dating While Divorcing? Legal and Personal Considerations
When couples agree to divorce, one of the first questions that is often asked is: “Can I start dating?” The simple answer is yes you can, but there are things to keep in mind. Even after you’ve filed for divorce, you are still legally married until a judge signs the final divorce papers. That means dating is technically “dating while married.” In most cases today, this won’t stop your divorce from going through. But it can impact issues like custody arrangements, financial matters, and how smoothly the proceedings unfold. If you have children, the court is always focused on what’s best for them. Dating amid a divorce often prompts questions such as: Is the new partner being introduced too soon Does the new relationship disrupt the children’s routine Is it adding stress or confusion for the kids Is the new partner reputable, a criminal, a public figure, etc. Judges want to see stability. Even if you feel ready to move forward, the court may see early dating as a potential distraction from your children’s needs. One of the biggest financial pitfalls of dating during divorce is something called “dissipation of marital assets,” which is a legal way of saying: spending money that belongs to both spouses on things outside the marriage, without your spouse’s consent. Examples include: Buying gifts for a new boyfriend or girlfriend Paying for trips, meals, or hotels with marital funds Using joint accounts for entertainment, rent, or travel related to the new relationship If the court finds that money was spent in this manner, the spouse responsible may be required to “pay it back” by giving the other spouse a larger share of the remaining assets. There are other practical concerns. For instance, negotiations may become more challenging. If your spouse finds out you’re dating, they may feel hurt or angry, which can make reaching an agreement more difficult. Dating while married can be emotionally messy. Divorce already comes with a lot of stress. Adding a new relationship may complicate your own healing process. If you start dating, children must come first. They may need time, as children often struggle with change. Bringing a new partner into their lives before the dust settles may make things harder on them. Tips if You Do Decide to Date Don’t use joint or marital funds on the new relationship Keep your dating life private until after the divorce is finalized Wait to introduce a new partner to your children until things are more settled or you’ve discussed a process with a mental health professional Talk with your lawyer about how dating might impact your specific case There isn’t a law that outright bans dating during a divorce, but between possible custody concerns, financial risks like dissipation, and the emotional toll, it often does more harm than good. If you want the divorce process to go as smoothly as possible, and protect your finances and your kids, the safest choice is usually to wait until the divorce is final before jumping back into dating.
August 19, 2025
Estates and Trusts
Planning and Parting Wisdom to Consider for Your College-Bound Children
Sending a child off to college is a major milestone — one filled with pride, excitement, and, in my case, a little anxiety. Two years ago, I sent my eldest to Europe for her university experience and, while my second is staying in the U.S., she is headed south this fall. I am sorry to report to the parents sending their child off for the first time that it does not get any easier. As parents, we spend years preparing them emotionally for this next chapter. But there’s another critical aspect of preparing them to fly the nest that often gets overlooked: legal documents and related planning. Once your child turns 18, you no longer have automatic access to their medical records, financial accounts, academic records, and in some states, you do not even have the right to make decisions on their behalf in an emergency. Without certain legal documents in place, you may be powerless in a situation where your guidance, input, and authority are most needed. Healthcare Proxy (sometimes referred to as a Medical Power of Attorney) A Healthcare Proxy allows your eighteen-year-old child to appoint someone (usually a parent) to make medical decisions on their behalf, in the event that they cannot articulate their wishes to care providers. This is crucial in emergency situations. Without this document, and pursuant to the Health Insurance Portability and Accountability Act (HIPAA), medical professionals are prevented from sharing any information, even with you, about your child’s condition. HIPAA Authorization Form HIPPA protects your eighteen-year-old child’s privacy once they are legally an adult. A HIPAA Authorization form specifically allows healthcare providers to release medical information to you, giving you the ability to communicate with doctors, access medical records, and be informed in case of an emergency. Durable Power of Attorney (POA) A POA empowers you, or whomever your child names, the authority to handle their financial matters. This can include managing bank accounts, signing tax returns, handling financial aid or tuition payments, and more, either on a temporary or ongoing basis. A POA is invaluable if your child is studying abroad, facing a logistical emergency, or simply needs help managing administrative tasks while adjusting to college life. FERPA Release Form The Family Educational Rights and Privacy Act (FERPA) limits a parent’s access to their child’s educational records (grades, disciplinary actions, tuition bills, etc.) once the child turns 18 or attends a postsecondary institution. If your child signs a FERPA release form, it authorizes the college to communicate with you directly about their academic records. Many universities provide this form during orientation, but it’s important to ask proactively. Digital Assets and Passwords University students, like all their peers, live much of their lives online. From email accounts to social media to online banking and cloud storage, ensuring a trusted individual has access to these digital assets in case of emergency is often overlooked. Encourage your child to create a secure list of important passwords or use a password manager that can grant emergency access to trusted individuals. Lists of passwords should never be stored on a phone or similar device that can be accessed by those who are not the appointed trusted individuals. Health Insurance Considerations When my child attended university in Europe, we discovered that her health care would be covered by university while in Europe. Still, we had to review her existing coverage here in the U.S., to ensure she still had coverage when she was home. It is imperative to verify whether your child will remain on your health insurance plan or if the university requires participation in a student health plan managed by the university. Sometimes the options provided by the university are more economical or make more sense if the university is far away and the plan has local coverage. If your child remains on your health care insurance, they should have at least a copy of their health insurance card. They should also understand how to locate in-network providers near campus and know the process for seeking care away from home, so that you are not stuck with a large medical bill from an out-of-network provider. Emergency Contacts and Local Resources Ensure your child’s phone has updated emergency contacts. It is recommended that named emergency contacts should be designated as such in their phone so others can assist in contacting you, if needed. In addition, make sure that your child has the names and locations of local, reputable urgent care centers, hospitals, dentists, mental health providers off campus, and pharmacies near their university. Emergencies are, by nature, unpredictable. In a crisis, the last thing you want is to be delayed by red tape. Having these documents in place not only gives you peace of mind but also empowers your child to step into adulthood with a well-prepared safety net. This is also a great opportunity to introduce your child to the concept of planning, in general, which is a personal responsibility and something to consider as they join the ranks of legal adulthood. By having these conversations now, you are not just preparing for emergencies, you are equipping them with the mindset of proactive life planning. Providing the tools to handle their newfound independence is one of the best send-off gifts you can give.
August 19, 2025
Family Law
Who Controls the Money Doesn’t Control the Divorce
It’s very common in a marriage for one spouse to earn most of the income or handle all the financial decisions. But when divorce happens, the spouse who hasn’t managed the money often feels anxious or powerless. The good news is that the law provides protections to make sure both spouses are treated fairly, regardless of who made or controlled the money. During a divorce, both spouses must provide full financial disclosure. That means: Listing income, bank accounts, retirement accounts, investments, and debts Producing tax returns, pay stubs, and account statements Explaining assets like real estate, businesses, or pensions Even if your spouse controlled the accounts during the marriage, they must disclose everything in the divorce. If they try to hide assets, courts can impose penalties or sanctions. Courts understand that one spouse may need money to get by while the divorce is pending. The dependent spouse has options like asking the court for: temporary spousal support (sometimes called “pendente lite” support) to cover living expenses until the divorce is final access to marital accounts to use for reasonable living expenses during the divorce, as long as money isn’t wasted attorney’s fees if one spouse has no access to funds to pay toward attorney’s fees, so both sides can participate fairly In most states, marital property includes income and assets acquired during the marriage — even if only one spouse earned the paycheck. That includes retirement accounts, savings, and property bought during the marriage, which are usually divided fairly (though not always 50/50), and debts, like mortgages or credit cards, are also divided. So even if you didn’t control the finances, you still have a legal claim to your share of what was built during the marriage. If one spouse has been financially dependent on the other, the court may award spousal support. This is not formulaic in most jurisdictions, and instead is based on factors such as: Length of the marriage Each spouse’s income and earning ability Standard of living during the marriage Contributions to the household (including childcare and homemaking) Health of each spouse Age of the parties Cause of the breakup of the marriage The goal is to ensure a fair transition, particularly for spouses who have given up career opportunities to support the family. Before or during the divorce process, the dependent spouse can take steps to protect themselves. For instance, collect as much financial documentation as possible, copy it, and provide it to their lawyer. Inform your lawyer if you are aware of assets, even if you do not have access to the records. If possible, avoid using credit cards to survive. Taking on debt may lead to future complications, speak with your attorney about safer alternatives. If your spouse made all of the money and managed the finances, you are not at their mercy in divorce. The law requires financial transparency, gives you the right to a fair share of marital assets, and provides ways to make sure you have the financial support you need during and after the process. You don’t need to have been the “breadwinner” to be treated fairly in a divorce.
August 19, 2025
Commercial Litigation
Three Key Tips for Drafting Strong Discovery Requests
The discovery phase of a case is critically important. Navigating a case appropriately through the discovery stage can lead to achieving favorable settlement terms, disposing of the case by summary judgment, or prevailing at trial. Thoughtfully crafting discovery requests is one of many tactics that maximize the chances for success. Keep these three points in mind when preparing discovery requests. Tailor the requests to the claims and defenses. Consider the elements for each claim and then the elements for each defense when drafting the requests. If the requests cover each element in an individualized manner, the door opens to potentially disposing of the case at the summary judgment stage. This approach leads to the parties exchanging relevant documents and information and allows them to digest each other’s theory of the case, minimizing the chances for a surprise at trial. Further, when both sides disclose documents and information, they also end up revealing the strengths and weaknesses of their respective claims or defenses. By identifying those strengths and weaknesses, the parties can more readily identify the components of the case, where they have leverage, and become more likely to come to a settlement (which saves the parties valuable time and resources). Pursue potential evidence to use to impeach witnesses’ credibility and to flesh out the theory of the case. Once you have your theory of the case, discovery is the time to further develop that theory by bringing out the context of the case. No case should take place in a vacuum. Typically, parties have ample evidence the other side can use (e.g., at trial) to illustrate the theory of the case. In a breach of contract case, for instance, it may be helpful to request documents or information about other contracts the party held at the time or the benefits that a party obtained when it breached the contract. In response to the request, you may receive a document that shows why the party breached the contract — a helpful piece of context that you can use at trial to better tell your client’s story and diminish the other party’s credibility. Although each case is factually distinct, there are always pieces of evidence that can be used for these purposes, which may make the difference in persuading a judge or jury. Include requests for information and documents where the adversary’s lack of a response is useful. Requesting documents and information from the other side that directly relate to the claims and defenses in the case is a great starting point. Adding requests with an eye toward the adversary not providing a response can also be very useful at trial. The lack of a response narrows the universe of evidence that the parties can present at trial, providing you with a more predictable trial and an ability to identify the weak points of your adversary’s case. It also provides the opportunity to flesh out the testimony you wish to elicit from the other side as to the lack of evidence. This can be particularly powerful when you cross-examine the other side’s witness and have that witness testify — in response to a string of questions from you — that they do not have evidence touching on a number of aspects pertaining to the case. Those moments during trial are not only good theater but also highly persuasive.
August 18, 2025
Estates and Trusts
Obergefell in Question: Estate Planning Risks for Same-Sex Spouses
On August 11, 2025, the United States Supreme Court was asked to reconsider Obergefell v. Hodges, the 2015 decision that federally guaranteed marriage equality for all couples. This new case involves the four-times married former Kentucky county clerk who famously denied marriage licenses to same-sex couples in 2015. She argues that her religious freedom should have allowed her to refuse to recognize same-sex marriage and asked the Supreme Court to take up her cause. While many remain cautiously optimistic that marriage equality will not be undone, the fact that the Court may even consider this petition is deeply unsettling for the LGBTQ+ population and their allies. (Axios, Forbes, The New Republic) Why This Matters for Estate Planning A Return to Patchwork State Laws If Obergefell were overturned, the U.S. would revert to a pre-2015 tapestry of laws in which individual states would have the opportunity to determine marriage rights for their own domiciliaries. For those residing in more conservative states, it could mean disaster for same sex spouses. Legal and Emotional Chaos for Families Suddenly, all the rights, protections, and privileges that come automatically with marriage, such as hospital visitation, medical decision-making authority, inheritance, and tax breaks, would once again require lawyers to draft elaborate, and admittedly brittle workarounds. In some states, lawmakers are bound to make those workarounds incredibly difficult to accomplish. Estate Planning Problems MagnifiedTax implications: Without a legally recognized spouse, couples will lose spousal estate tax exemptions at the federal and possibly state levels. Probate exposure: Without the automatic transfer rules of marriage, such as tenancy by the entirety designations on deeds, estates could be forced to go through a full probate proceeding or worse, pass to next-of-kin heirs, and not the spouse. Healthcare proxies and decision-making: Health care directives, such as Health Care Proxies, would need constant updates as cross-state enforcement could become uncertain when an individual’s status is demoted from “spouse” to simply “agent” under a health care directive. It should be noted that the rights of an agent are certainly less secure than spousal rights. Children and parentage issues: The parental presumptions, adoptions, and guardianships may also be under fire and could become contested in ways they have not been observed for a decade. As with documented workarounds for estate planning, it is concerning that parentage could hinge on an estate planning document that is enforceable in one state and not another. In summary, this possibility bears a real human cost if the federal government no longer sees a marriage as valid, and all the financial ease, parental securities, medical protections, and end-of-life comfort assumed to be guaranteed are no longer. Same-sex couples do not just lose a symbolic right to marry — they face disruptions to fundamental life, health, and legacy decisions. This is not just another court case: the ramifications will fundamentally reshape how families, especially those with trans and LGBTQ+ members, plan their lives, protect each other, and preserve their legacies. It is vital we pay attention, share the facts, and act with allyship.
August 14, 2025
LGBTQIA+
Marriage Equality and the Supreme Court: Preparing for the Unexpected
Big news dropped this week, and it’s one of those stories that makes my phone start buzzing with texts from clients, friends, and family asking: “Could the Supreme Court actually take away marriage equality?” Kim Davis, the Kentucky clerk who famously refused to issue marriage licenses to same-sex couples, has asked the Court to overturn Obergefell v. Hodges, the 2015 decision legalizing marriage equality nationwide. For Davis, the appeal is about religious beliefs, but for LGBTQ+ families, it’s about the security of marriages and rights. Can the Supreme Court Overturn Obergefell? For Davis, the case is based on her personal beliefs and most experts think it’s a long shot to undo marriage equality entirely. Still, this Court has surprised us before. Justice Thomas has already suggested revisiting Obergefell, and the fact that the question is back before the Court is a reminder that the fight isn’t over. What Would Happen if Obergefell Were Overturned? If Obergefell were overturned, some states could stop issuing marriage licenses to same-sex couples almost overnight. Old bans and “trigger laws” are still sitting on the books in many states. However, due to the 2022 Respect for Marriage Act, current same-sex marriages would almost certainly still be recognized nationwide. Under this law, if a same-sex couple is legally married in one state, every other state and the federal government must honor that marriage, even if the couple later moves to a state that bans it. Why Does This Matter if You’re Already Married? Some may assume, “Well, we’re already married, so we’re fine.” Not necessarily. Without Obergefell, certain rights could become more difficult to enforce at the state level, such as hospital visitation, inheritance without a will, or the ability to make medical decisions for your spouse. For families with children, especially when only one parent is biologically related, the stakes are even higher. Steps to Take Now Make your family “court-proof.” Ensure you have legal documents in place, including wills, healthcare proxies, powers of attorney, and guardianship documents for kids. Lock in parental rights. A court order, such as a second-parent adoption, is recommended to make parental rights secure, even when both parents’ names appear on the birth certificate. Know your safe states. In areas with an uncertain record on LGBTQ+ rights, it’s important to know where your family would be protected in the event of upheaval. Stay engaged. Local and state protections matter. Back ballot measures and candidates who will uphold marriage equality in your state constitution. Final Thoughts Though it seems unlikely that Obergefell will be reversed in the immediate future, it would be unwise to become complacent or to assume it is beyond challenge. Now is the time to double-check your legal safety net, because the best time to protect your family is before the storm starts.
August 13, 2025
Landlord Representation
Federal Class Action Targets Common Add-On Charges in Virginia Leases: Pest and Community Fees Under Scrutiny
A federal class action lawsuit[1] is alleging that monthly pest fees and community fees are unlawful attempts to shift landlord obligations to tenants, in violation of the Virginia Residential Landlord and Tenant Act (VRLTA) and the Virginia Consumer Protection Act (VCPA). If the plaintiffs are successful, the case could trigger industry-wide consequences and result in substantial liability for property owners and managers who use similar fee structures. Initial Recommendations Evaluate all recurring fees, such as pest control, trash, amenity, and community fees to determine whether they relate to obligations that are legally the landlord’s responsibility under Virginia law (e.g., habitability and maintenance of common areas). Distinguish between charges for required services and those for optional or additional tenant benefits. Remove or recharacterize unlawful fees. Eliminate any separate fees that relate to non-waivable landlord duties. Where appropriate, incorporate the cost of pest control and common area maintenance into the base rent rather than charging them separately. Clearly define any remaining fees. Avoid using overly broad or ambiguous language such as “programs deemed necessary by ownership,” which may be interpreted as deceptive or misleading under consumer protection laws. Further Details and Legal Background Plaintiffs’ Allegations Plaintiffs allege that landlords cannot charge tenants for costs of pest control, trash disposal, or common area maintenance. Plaintiffs allege these duties are non-waivable landlord obligations under Virginia Code § 55.1-1220, and that the charging of pest control, trash disposal, and other common area maintenance fees are deceptive representations in violation of Virginia Code § 59.1-200(14). Legal Basis Virginia Residential Landlord and Tenant Act (VRLTA) Virginia Code § 55.1-1220(A): Requires landlords to maintain pest-free premises and clean, structurally safe common areas. These duties may not be waived through the lease. Virginia Consumer Protection Act (VCPA) Virginia Code § 59.1-200(14): Prohibits misrepresentation or deception in consumer transactions, including residential leases. The lawsuit claims tenants were misled into believing that payment of the pest and community fees was required to receive services already required under Virginia law. Analysis Importantly, Virginia Code § 55.1-1220 does not explicitly prohibit landlords from charging for pest control and trash disposal fees, if such fees are authorized under the lease agreement. Plaintiffs are, therefore, making allegations based on implication and a broad reading of Virginia Code § 55.1-1220. It is not clear how the court may rule on the plaintiffs’ allegations. Regardless, plaintiffs’ allegations have merit based upon landlords’ obligations as defined under Virginia Code § 55.1-1220. Potential Impact This lawsuit signals an aggressive new approach to enforcing landlord-tenant law under both the VRLTA and VCPA. This case could set precedent for whether bundling landlord obligations into fees is inherently deceptive under the VCPA and unlawful under the VRLTA. Further, a ruling in favor of plaintiffs could lead to a wave of similar class actions across Virginia and other states. Offit Kurman will continue to monitor the case and provide further recommendations once the court issues a ruling. [1] Valencia Rios v. Belvedere NRDE, LLC and Pegasus Residential, LLC (E.D. Va. No. 3:25-cv-474)
August 12, 2025
Estates and Trusts
Settling an Estate with Efficiency and Care — Guidance for the Personal Representative
When someone dies, the task of settling the person’s estate descends upon the personal representative. Being appointed a personal representative, or “executor,” is an honor that includes a broad range of responsibilities. This person must be part administrator, part accountant, and part diplomat! Depending on the complexity of the estate, the process can drag on for years, or the estate can be opened and closed the same day. A typical estate takes nine months to a year to close. Regardless of how complex the estate is, the personal representative may want to begin with a phone call to an estates and trusts attorney for guidance. The attorney can simply point the personal representative in the right direction during a single consultation. Or the attorney can assume some or all of the duties of the personal representative, making the process considerably less burdensome. The challenge for most people settling an estate is that they do this only once in their lives, and therefore have to learn on the job. Here is an overview of the steps involved. Secure the Home If a house is sitting vacant as a result of the death, it is important to protect the property and its contents. Any valuables should be removed and kept in a safe place. Windows and doors should be locked and the alarm set, if there is one. If other people have keys to the house, consider having the locks changed. Mail should be forwarded to the personal representative, and a trusted neighbor should be asked to keep an eye out for any packages or fliers left at the door. It is also important to pay any mortgage installments, condominium fees, utilities, or property taxes as they become due. If funds for these expenses are not immediately available, the personal representative can advance these costs and seek reimbursement from the estate when possible. Locate the Will To open the estate, you will need the original will—not a photocopy. Once located, the will should be filed with the Register of Wills, even if the decedent had no assets. (If there is no will, the person has died “intestate” and the assets will be distributed according to Maryland’s rules of intestacy.) Upon opening the estate, the personal representative will receive “Letters of Administration,” putting him or her in charge of the estate and its assets. A tax ID number can then be obtained, and an estate checking account opened. Notify Agencies of the Death Banks and brokerage houses should be notified of the death, as well as insurance, credit card, and utility companies, and credit-reporting agencies. If the person received Social Security or other government benefits, notify the agencies that provided them. Marshal the Assets It may be advisable to liquidate any securities and other investments to lock in the value as close to the date of death as possible. The proceeds from any liquidated accounts should be deposited in the estate checking account. Prepare an inventory of the estate assets, including cars and household items, as well as real estate (whether in Maryland or elsewhere), bank accounts, CDs, investment portfolios, and life insurance policies. The inventory must include the date-of-death value of each item and be filed with the Register of Wills. Determine whether any of the assets name a beneficiary or have a co-owner. Those that do may be “non-probate” assets, which will transfer to the beneficiary or co-owner directly and are not part of the probate estate. Run the Numbers Creditors of the deceased have six months to make claims against the estate, and if there are sufficient funds, these will need to be paid from the estate account. Estimate the amount of cash needed to pay the claims and any taxes, and, as necessary, arrange for any assets to be sold for distribution. Deal with Taxes A Form 1040 individual income tax return must be filed for the portion of the year the decedent was living. This return is due by April 15 of the following year, just like a standard personal tax return. If the estate includes bequests to individuals who are not close family members, Maryland's 10% inheritance tax will apply. Unless the will specifically states otherwise, this tax is generally payable by the beneficiary who receives the bequest. Estate taxes may also apply, depending on the total value of the estate. In Maryland, estates valued at more than $5 million may be subject to state estate tax of up to 16%. At the federal level, estates exceeding $13.99 million in value (as of 2025) may trigger federal estate tax obligations of up to 40%. In addition, during the course of estate administration, if the estate generates more than $600.00 in income—perhaps from interest or dividends—fiduciary income tax returns must be filed. This includes IRS Form 1041 for the federal return and Maryland Form 504 for the state return. Because estate and tax matters can be complex, enlisting the help of an accountant experienced in estate administration is often a wise decision. Make Distributions Once an accounting showing all estate activity has been filed and approved by the Register of Will, a 20-day waiting begins. If no objects are made to the accounting as filed, it will then be time to distribute the remaining assets to the beneficiaries. The personal representative might first ask each beneficiary to sign a document releasing the personal representative from any future liability in connection with the estate. Settling an estate is more than a legal obligation—it is a final act of care and respect for the person who has died. By carrying out their wishes with diligence, fairness, and thoughtfulness, the personal representative helps bring closure not just to the estate, but to the life it represents. Though the work can be complex and at times overwhelming, it is also a meaningful way to honor the departed and ensure that their final wishes are handled with integrity and grace.
August 11, 2025
Labor and Employment
New DOJ Memo Addresses Legality of DEI Programs for Federal Funding Recipients
On July 30, 2025, the Department of Justice released a memo from Attorney General Pam Bondi offering guidance to federal agencies and recipients of federal funding regarding practices that the administration views as potentially unlawful under federal antidiscrimination laws. While the memo focuses heavily on institutions of higher education, its implications extend to all federal funding recipients, federal contractors, and employers subject to Title VII. The memo outlines the administration’s interpretation of federal law as it applies to diversity, equity, and inclusion (DEI) initiatives and similar programs. It provides examples of practices the DOJ considers unlawful or legally questionable, as well as "best practices" intended to help organizations avoid liability. Key Takeaways Applicability Beyond Higher Education: Although many examples concern colleges and universities, the guidance expressly encourages all entities subject to federal antidiscrimination laws, including public and private employers, state and local governments, and contractors, to review and evaluate their DEI programs. DOJ’s Interpretations Are Not Binding Law: The memo reflects the DOJ’s interpretation of existing law, not a change in the law itself. Courts remain the final arbiters of what federal statutes mean, and state laws may impose different or additional requirements, especially in areas such as transgender rights, where the administration’s views may conflict with both state law and judicial precedent. Examples of Practices the DOJ Views as Unlawful or Problematic Race-Based Scholarships or Opportunities: Programs that limit access to scholarships, internships, or leadership initiatives based on race (e.g., a “Black Excellence Scholarship”) violate federal law unless they meet the very high bar for race-conscious programs. Race-Exclusive Facilities or Resources: DEI initiatives that designate certain physical spaces (e.g., “BIPOC-only lounges”) or create identity-based access restrictions may amount to unlawful segregation or exclusion, even if intended to foster inclusion. Segregated Training or Affinity Groups: Programs that separate participants based on race (e.g., mandatory DEI sessions with race-exclusive breakouts) risk violating civil rights laws. Voluntary, open-to-all professional support networks may be permissible. Diverse Slate Hiring Requirements: Mandating racial or demographic composition in interview pools (e.g., requiring a minimum number of minority candidates per hiring slate) may violate the law if used to exclude otherwise qualified individuals based on race. Race- or Sex-Based Contracting Preferences: Automatically favoring minority- or women-owned businesses in procurement decisions, without narrowly tailoring those preferences to a compelling government interest, raises legal concerns. Note: The DOJ flags this area as particularly sensitive given that many entities, including government contractors, are required to establish utilization goals for disadvantaged businesses. The legality of these long-standing programs may now be in flux. Proxies for Race or Sex Consideration: Cultural Competence or “Lived Experience” Requirements: When tied to race or ethnicity, such criteria may unlawfully advantage candidates based on protected characteristics Diversity Statements or “Obstacle” Essays: Requiring narratives that implicitly reward racial or gender identity may function as indirect proxies for discrimination The memo sharply narrows the permissible interpretation of the Supreme Court’s language in Students for Fair Admissions v. Harvard, particularly Chief Justice Roberts’ explicit statement that applicants may discuss how race shaped their experiences, provided race itself is not the basis for decisions. Recommended “Best Practices” To reduce legal risk, the DOJ encourages organizations to: Eliminate Demographic-Driven Goals: Avoid designing policies or using facially neutral criteria (e.g., “first-generation student” or “underserved zip code”) to achieve demographic outcomes tied to protected characteristics Justify Criteria with Legitimate, Non-Discriminatory Rationales: Document how selection criteria are related to objective performance or institutional needs — not race, sex, or other protected traits Evaluate Potential Proxy Effects: Before implementing race-neutral policies, assess whether they function in practice as proxies for race, sex, or other protected statuses Abandon Diversity Quotas: Avoid policies that require representation of specific demographic groups in candidate pools, committees, or final hiring selections Include and Enforce Nondiscrimination Clauses in Contracts: Require third parties receiving federal funds to comply with nondiscrimination obligations. Monitor compliance and terminate funding where violations occur. Note on Scope of Coverage The DOJ memo applies to recipients of federal financial assistance, which includes grants, loans, subsidies, and insurance, not federal procurement contracts. However, many principles may be relevant to federal contractors, particularly where compliance with Title VII or similar statutes is at issue.
August 8, 2025
Intellectual Property
Future-Proofing Your Brand During Expansion
Expanding a brand into a new category can be an exciting time. It can also be one of the riskiest moves a brand can make. Branding is more than logos or ad campaigns. It’s about identity, voice, values, and the emotional connection with your audience. Whether it's a fashion house entering beauty, a beverage company exploring wellness, or a tech firm launching a novel product, the potential for growth is enormous. But with that opportunity comes risk. When managed well, brand expansion reinforces that connection, but when rushed or misaligned, it weakens the trust that took years to build. Why Future Proofing Matters from Day One Often, brands treat category expansion like a standalone marketing campaign. They focus on quick wins, media buzz, short-term sales, or a different position in shelf space, which, without a strategic foundation, can backfire. Every product launch, brand partnership, or new line sends a message to consumers about what your brand stands for. That means any missteps risk undermining that story. Future proofing begins by asking tough but essential questions: Does this new product offering align with our brand’s culture? Will our core messaging still align as we scale or expand into new regions or categories? Define the Relationship with the Parent Brand An often undervalued aspect of expansion is the structure that connects the dots on how new offerings relate to the master brand. Will the new product be a sub-brand, an extension, or something distinct and possibly even unrelated? Consider Apple’s ecosystem: iPhone, iPad, Apple Watch, AirPods. Each product serves a unique function, yet they all come together and reinforce the parent brand’s identity of innovation and integration. That clarity builds customer trust and makes each launch feel like a natural extension of what consumers already believe about Apple. In-House vs. Licensed: A Strategic Decision Deciding to build a new category in-house or license it to a third party is important and has significant financial implications. Licensing can offer speed as well as immediate category expertise. Additionally, licensees will generally have established distribution channels in their product category. However, licensing carries the risk of inconsistent execution and diminished brand control. In contrast, in-house development ensures alignment but can stretch internal resources and delay time-to-market. Neither option is inherently better; it depends on your long-term goals. Some brands start with licensing, then bring successful categories in-house to better integrate them into the brand’s DNA. Choose the approach that supports authenticity, quality, and growth over time. Be realistic about what it takes to launch a new product category from product development through sales and distribution. Going Global? Think Local Launching into new regions multiplies complexity, particularly when expanding internationally. What resonates with customers in North America might fall flat in Asia without cultural and regional nuances. A one-size-fits-all global campaign can seem tone deaf. Moreover, international regulations pertaining to product categories can differ substantially, and fluctuating tariffs and trade treaties may also impact a company’s ability to be successful in a country or region. Strong brands can adapt for regional differences in messaging, image, tone, and packaging, etc., while still expressing a consistent global identity. Nevertheless, brands must still learn the local market and its customs, and understand how to navigate and comply with local regulations. Beyond the Launch: The Core of a Future-Proof Brand To future-proof your brand, you need to think beyond launch day. A brand isn’t defined by one product, campaign, or social media moment. It’s how your customers experience and perceive you over time. Strong brands continuously learn from their customers, observing shifts in expectations, sentiment, and values. Gen Z, for example, views itself as a stakeholder in the brands it supports. They expect companies to live up to their stated values, and they take notice and speak out on TikTok when those values ring hollow. Authenticity is key. Internal Culture Is Brand Culture Your external brand reflects your internal culture. When your employees, from C-suite to frontline workers, understand and live the brand’s values, it shows in every customer interaction. Future-proofing your brand requires embedding that alignment throughout your organization. Your brand is reflected in the way products are designed and services are delivered. Everyone should feel a sense of ownership in the brand story and understand how their role contributes to it. Every touchpoint, from social media posts, customer service exchanges, product packaging, and speaking engagements, is a chance to reinforce (or undermine) your brand. Nourish the Brand Ongoing thought leadership helps keep your brand visible, relevant, and aligned with your customers' needs. Great brands often own a point of view in their industry, publishing insights or setting trends that reinforce their authority. Measure what works through perception studies, engagement metrics, and customer feedback, and adapt accordingly. The market will change. Customers will evolve. Competitors will disrupt. Your logo may stay the same or change, but the context in which it operates never does. The launch is just the beginning. Your brand's success depends on how well it fits into a broader, evolving dialogue. Future proofing is about preparing your brand to meet what comes next.
August 8, 2025
Estates and Trusts
Major Estate Tax Changes Under the One Big Beautiful Bill Act
The One Big Beautiful Bill Act (OBBBA), signed into law on July 4, 2025, is a sweeping piece of legislation spanning nearly 1,000 pages. It includes significant changes to federal estate and income tax laws that will affect estate planning. Here’s an overview of a few key provisions in OBBBA and some strategic estate planning opportunities that it provides. Estate and Gift Tax Exclusion Increased Effective January 1, 2026, the federal estate and gift tax exclusion increases to $15 million per individual (or $30 million per married couple), with future adjustments for inflation. Although the increased exclusion was made “permanent” under the Act, it may still be changed or repealed by a future Congress or administration. High-net-worth clients should take full advantage of what may be a limited window for significant planning options. Spousal Lifetime Access Trusts (SLATs) and Grantor Retained Annuity Trusts (GRATs) are excellent options for front-loading an estate plan while still allowing the client or spouse access to assets. Individuals who have already utilized all or a portion of their current exclusions should consider “topping off” their current estate plans with additional gifts. While the increase in the federal exclusion amount provides substantial federal tax relief, state-level estate and inheritance taxes still apply, in many jurisdictions: 12 states (Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New York, Oregon, Rhode Island, Vermont, Washington) and the District of Columbia continue to impose an estate tax Six states (Iowa, Kentucky, Maryland, Nebraska, New Jersey, Pennsylvania) impose an inheritance tax Connecticut is the only state that also imposes a gift tax New York does not have a gift tax, but adds back gifts made within three years of death to the taxable estate With proper planning, assets can still be transferred free of both federal and state-level transfer taxes, but state-specific rules must be carefully navigated. Spousal Lifetime Access Trusts (SLATs), Dynasty Trusts, and sales to intentionally defective grantor trusts offer excellent opportunities to both leverage and utilize the $15 million federal gift tax exclusion while removing those assets from a state estate tax regime. New York’s Estate Tax “Cliff” New York’s estate tax has a particularly harsh feature known as the “estate tax cliff.” This means that estates just slightly over the exclusion amount may lose the exclusion entirely and owe significant tax. For example, in 2025: A New York taxable estate of $7,160,000 will owe no estate tax A New York estate of $7,161,000 will owe $2,863 in tax A New York estate of $7,518,000 will owe $707,648 This makes planning for residents of New York and similarly situated states especially important. New York State residents, and even non-resident individuals with substantial New York situs property, should consider making immediate and significant gifts designed to lower their New York taxable estates below the cliff. If they survive three years after the gift, the gifted property will be excluded from their New York taxable estate. Generation-Skipping Transfer (GST) Tax Exemption The federal GST tax exemption also increases to $15 million per individual beginning January 1, 2026. This is particularly relevant for gifts or bequests made to “skip persons” (such as grandchildren) or to trusts subject to GST tax. Despite the increase, careful planning is still needed to make full use of this exemption. Unlike the federal estate and gift tax exclusion, the increased GST tax exemption is not “portable” – meaning that unless both spouses’ GST exemptions are used during life, they may be forfeited at the first death. And like the federal estate and gift tax exclusion, the increased GST tax exemption is also subject to a potential repeal if the political winds change. For clients and their families focused on multi-generational planning, now is the time to “use it or lose it” by fully sheltering appreciating assets from the generation skipping tax in an irrevocable trust. Careful allocation of exemption is the key to maximizing tax efficiency and wealth for future generations. SALT Deduction Cap Raised — But with Limits Starting in 2025, the cap on deductions for state and local taxes (SALT) increases from $10,000 to $40,000. This is especially beneficial for residents in high-tax states. However, the increased cap phases out for high-income earners: For those with modified adjusted gross income (MAGI) between $500,000 and $600,000, the cap is reduced by 30% of the excess MAGI The deduction is completely phased out for taxpayers with MAGI of $600,000 or more Unless extended, the cap will revert to $10,000 in 2030. Clients living in high-tax states should consider “stacking” multiple non-grantor trusts. Since each trust is treated as a separate taxpayer under the Internal Revenue Code, carefully drafted multiple trusts can potentially reallocate MAGI and shelter thousands of dollars in SALT deductions that could not otherwise be taken on an individual’s income tax return. Changes to Charitable Giving Rules OBBBA introduces new benefits and limitations for charitable giving: The 60% limitation for cash contributions to qualified charities is not “permanent” Standard deduction filers can now take an additional $1,000 charitable deduction ($2,000 for joint filers) Itemizers are subject to a new 0.5% floor, meaning charitable deductions are only allowed to the extent that total contributions exceed 0.5% of adjusted gross income (AGI) before losses To maximize deductibility, the new 0.5% floor encourages consolidating charitable giving in a single tax year. For high-net-worth individuals, this is the perfect opportunity to fund or expand a private foundation. Donor-advised funds may also provide an option for maximizing charitable giving in a single year while providing flexibility in the choice of charities and the timing of distributions. Final Thoughts The OBBBA marks a significant shift in the tax landscape for estate planning. While some changes provide enhanced opportunities for wealth transfer and charitable giving, others introduce complexity and planning pitfalls — especially at the state level.
August 7, 2025
Intellectual Property
Voice Actors Clear Early Legal Hurdle in AI Cloning Suit
Voice actors received a rare, if incomplete, victory against alleged AI infringers in a recent opinion from an SDNY judge in Lehrman v. Lovo, Inc. Voice actors Paul Lehrman and Linnea Sage filed an action against AI voiceover company Lovo, alleging the company used artificial intelligence to synthesize and sell unauthorized "clones" of their voices. Plaintiffs discovered their voices being used in YouTube videos and podcasts after they had been hired through the freelancing app, Fiverr, for what they believed were limited voice recording projects used for research purposes. The result is a case of first impression regarding AI voice cloning tech, asserting claims under New York civil rights and consumer protection laws, the Lanham Act, the Copyright Act, and various common law theories, including breach of contract, fraud, conversion, unjust enrichment, and unfair competition. Judge J. Paul Oetken issued a mixed ruling on Lovo's motion to dismiss, concluding that "for the most part, Plaintiffs have not stated cognizable claims under federal trademark and copyright law." The court explained that what plaintiffs sought was essentially "copyright protection for their voices" as abstract concepts rather than specific expressions, and that copyright "must concern the expression of ideas, not the ideas themselves." However, the court did allow the plaintiffs’ breach of contract and right of publicity claims to proceed, finding that communications through Fiverr and the platform's terms of service supported their allegations that the voice recordings were used beyond the agreed scope. The court also moved claims under New York Civil Rights Law Sections 50 and 51 forward, stating that these state laws are "tailored to balance the unique interests at stake" in voice misappropriation cases. While the ruling represents a partial victory for the voice actors, it highlights significant gaps in federal intellectual property protections for AI-generated content and voice cloning technology. The court's decision suggests that voice actors and similar plaintiffs may find more success pursuing state law remedies for unauthorized AI voice cloning rather than relying on federal copyright protections.
August 6, 2025
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