Halloween: What Divorcing Parents Need to Consider


Halloween has always been a special holiday for children, and parents enjoy reliving it through their eyes. However, divorce can put a damper on things if the parents do not plan ahead and work together. Here are some tips to help things go more smoothly: Decide who is doing what for the costumes. It is no fun for kids if their parents are too busy fighting over who is doing what when it comes to the costumes. Take your ego out of it. If the other parent really wants to take the lead on the costume let them and agree you will take the lead next year. Or, if you have more than one child, you each are in charge of one of them. Determine if you are both going to trick or treat together. The determinative question is whether both of you can get along and make it a positive experience for your child. That usually means being willing to leave your new significant other out of the picture. Remember, the focus is on your child and not to make your ex jealous or upset. If you cannot make it a positive experience, it may be better to alternate years. Determine where you are trick or treating. If you are both still living at home, this one is easy. If you are now living in separate homes and both neighborhoods trick or treat at the same time, you have to select a location. Think of this from the child’s perspective. Do they have friends in the new neighborhood and feel excited about it? Would they rather spend their first Halloween where it is familiar? Remember that divorce is an opportunity to create new traditions. If you do not have your children on Halloween, you can still create new traditions around the holiday and the fall season. Read More

BIPA Accrual will not be Reconsidered by Illinois Supreme Court


On July 18, 2023, the Illinois Supreme Court denied a rehearing on the issue of Biometric Information Privacy Act (BIPA) accrual. The request for rehearing derived from an opinion by the 7th Circuit, Cothron v. White Castle System, Inc., 20 F.4th 1156 (7th Cir. 2021), holding that “separate claims accrue under BIPA each time a private entity scans or transmits an individual’s biometric identifier or information in violation of section 15(b) or 15(d).” In Cothron, a class of employees filed an action against their employer, White Castle, for requiring employees to scan their fingerprints to access computers without first obtaining employee consent. The 7th Circuit ruling, in conjunction with Illinois Supreme Court’s denial of rehearing, means an employer can be liable every time an employee scanned their fingerprints or such information is transmitted without their consent. The dissenting opinion of the Illinois Supreme Court criticized the majority’s interpretation as unable to “be reconciled with the plain language of the statute,” further citing the damage BIPA accrual can cause to businesses. Enacted in 2008, Illinois’ BIPA was one of the first state laws addressing the collection of biometric data. BIPA requires private companies to develop written policies establishing guidelines and retention schedules for the collection, transmittal, and storage of biometric data. Moreover, BIPA requires companies to obtain informed consent prior to the collection. Biometric information, as defined by the Illinois legislature, includes retina or iris scans, fingerprints, voiceprints, or scans of hand or fact geometry. Currently, Illinois, Maryland, New York (and New York City), Oregon (and Portland), Texas and Washington, each have biometric privacy laws in place. Additionally, several other states have proposed similar laws, or included biometric information regulations within comprehensive privacy laws. Notably, not all biometric privacy laws create a private right of action like BIPA or New York City. Read More

The Domination of Cybersecurity


Key takeaway: Despite the Supreme Court’s recent pronouncement of patent-eligible subject matter, cybersecurity innovation will remain an active area for intellectual property protection through the patent application and prosecution process. Because cybersecurity protection is of critical importance to businesses, it has become commonplace, resulting in a fundamental impact on other areas of the law. Where are practitioners observing the most change – patenting cybersecurity software. The United States Patent and Trademark Office (USPTO) received 1,087 cybersecurity-related patent applications between 2000 and 2022. The U.S. has the world’s largest cybersecurity workforce housing 1.1 million cyber jobs. Companies that invest in cybersecurity protection with the proper internal policy regulations will best be positioned to protect their intellectual property. After the U.S. Supreme Court’s 2014 decision in Alice Corp. v. CLS Bank International, the USPTO began to treat patent applications containing process claims or method claims with a higher level of caution. Process claims or method claims describe an invention as a series of steps to achieve a technical solution and are usually considered to be patent-ineligible subject matter because they are directed to an “abstract” idea. The Alice decision pushed practitioners to draft software patent claims that define the technological steps with specificity and therefore enable the innovative technical solution. Because most patent applications include a background of the invention, it is critical to include a detailed discussion of the technical context of software-driven innovations. Despite patent examiners being technically trained, certain examiners may not have the subject knowledge needed to understand the “uniqueness” or need for the innovation. Practitioners are encouraged to provide the background on how the innovation was developed and the technical needs it addresses within the application. Providing a more descriptive background equips the patent examiner with a better understanding of the innovation’s practical value within the industry. A patent application can include an explanation of how technical challenges were overcome to arrive at the solution, the technical advantages of the solution, and practical results and improvements that can be obtained with the solution. Read More

A Sunset to Plan for: The Changes in Federal Estate Tax in 2025


Taxes. Nobody likes dealing with them. However, they become especially relevant and important when planning your estate. Being aware of the applicable federal and states taxes that will be due can have an immense impact on what will remain to be distributed to your family and other beneficiaries. With taxes in mind, everyone needs to be familiar with the “unified credit”, which is the amount each individual can leave free of tax, upon death, to a non-spouse under federal estate taxes. Let me fill you in on this. This amount is very important as every dollar which exceeds the unified credit is taxed at an exceptionally high federal estate tax rate of 40% (yes, you read that correctly, 40%). Additionally, this amount is also “portable” between spouses. This means that any portion that is not used by the first spouse upon death, the remaining amount “ports” or transfers to the surviving spouse to be added to that spouse’s unified credit which effectively increases the amount which may pass that second estate free of federal tax. To illustrate how this works, let’s say there is a married couple, and Husband dies first with $7,000,000 in his estate, with the current unified credit amount being $12,920,000. Since Husband is under the exclusion amount, the entire $7,000,000 is not subject to federal tax. The “unused” $5,920,000 passes to his surviving spouse who now has an increased amount of $18,840,000 which may pass through her estate (as opposed to the original $12,920,000) excluded from federal estate tax. Over the last number of years, the unified credit amount has been changing annually as it is indexed for inflation. However, it is likely to have a major change at the end of 2025. Prior to the Trump Tax Reform Act of 2017, the exclusion amount was set at $5,000,000 (adjusted annually for inflation). Read More

Competing Duties of a Life Insurance Agent: The Potential for a Conflict of Interest in the Sale of Life Insurance Policies and Annuities


The legal and regulatory scheme is set up in favor of life insurance companies to the detriment of the agents and customers. The imbalance of duties imposed upon a life insurance agent in the sale of life insurance policies and annuities to a client presents a potential conflict of interest. Life insurance agents owe a fiduciary duty to the life insurance company as a result of their appointment as an agent. State laws provide for a fiduciary duty by agents to their principals. In this case, the life insurance companies are the principals of their agents. As private equity firms acquire for-profit life insurance and annuity companies, many are highlighting financial engineering concerns that threaten their solvency and the promises and financial security of their insureds. Also, demutualization and overall financial market conditions are raising similar concerns. As a result, life insurance and annuity agents are debating the nature of their duty to their clients, their insurer/principals, and the consideration of replacement products as a solution. This article focuses on these duties, considerations, and process. Sources of the duty include: Statutory law (mostly State, but in some instances, Federal). Common law. Life agent’s appointment contract with the insurer/principal. NAIC, including Best Interest Model Regulation (#275) in states where it has been adopted. Professional and organizational code of ethics and standards. In most states, life insurance agents in the sale of policies and annuities owe a greater duty to the insurer/principal than to their client. The duty owed to the insurer/principal is a fiduciary duty – the highest duty that is required under the law! Life insurance agents in the sale of policies and annuities must have the insurer/principal’s best interests ahead of their own. In contrast, life insurance agents in the sale of policies and annuities do not owe a fiduciary duty to their clients in most states; the applicable duty is a lower ordinary care standard, and imposition of an implied contract in most states. Read More

Privacy vs. Productivity: Risks That Come to Employers


Takeaway: On both a federal and state level, there has been a concerted push to protect employee privacy more thoroughly. As the law continues to develop or, as in the case of the NLRB, new methods of enforcement come into play, employers must balance the desire to monitor employee activity with the legal risk it may pose. It is in the best interest of employers to keep pace with the evolving body of law and ensure appropriate employee monitoring policies are in place. Since the beginning of the COVID-19 pandemic, there have been many changes to employee privacy laws as more and more employees work remotely. As more technology is developed that allows for new forms of employee productivity monitoring, employers must be aware potential legal exposures. Recently, at the end of 2022, the National Labor Relations Board (“NLRB”) issued Memorandum GC 23-02 signaling a new initiative to protect the privacy of employees from employer methods of monitoring and tracking. As background, Section 7 of the National Labor Relations Act (“NLRA”) guarantees employees the right to unionize and advance their interests, while Section 8(a)(1) makes it unlawful for an employer to interfere with an employee’s Section 7 rights. Of the utmost concern for NLRB General Counsel was the possibility that such oversight by employers would impede the Section 7 rights of employees who engage in protected activity. Shortly thereafter, on April 11, 2023, the NLRB issued a decision in Stern Produce Company and United Food and Commercial Workers, Local 99. The employer, Stern, had installed cameras in their trucks meant to monitor different delivery activities. The employee had covered the camera during his lunch, claiming there was no such policy against doing so in the employee handbook. The employee was subsequently told to uncover his camera by a supervisor. The NLRB ruled this constituted a violation of “Section 8(a)(1) [of the NLRA] by creating the impression of surveillance by accessing the inside-facing camera…and requesting that [the employee] uncover it.” Read More

Working with Mental Health Professionals


Attorney Robert Weinberg provides insight as to how experienced family law attorneys can guide clients through difficult aspects of custody cases, especially thinking about and working with the various mental health professionals that are typically involved in these cases, and ultimately how to maintain a focus on the best interests of clients’ children throughout any litigation process. Source Read More

Could One Plaintiff’s Phone Call Lead to ADA Litigation? The Supreme Court Will Decide


Every business or nonprofit open to the public, regardless of size, must comply with Title III of the Americans with Disabilities Act (“ADA”). The ADA permits a plaintiff to sue a business for failing to provide full and equal access to goods, services, and facilities. The ADA’s aim is laudable; however, plaintiff attorneys have begun exploiting its breadth. Plaintiff attorneys are bringing claims against businesses of all sizes on behalf of plaintiffs who may never actually intend to use the defendant’s goods, services, or facilities. These lawsuits may include allegations that a website is inaccessible to the visually impaired or that hotel beds are too high for the mobility impaired. A single law firm may file dozens of nearly identical cases, using the same plaintiff, against similarly situated businesses in a short period of time. This type of ADA litigation has become an epidemic in certain parts of the country, including in the Western District of Pennsylvania. Every business is threatened by it. The proliferation of these cases has raised basic but consequential questions of “standing,” the capacity of a particular party to bring suit. Courts, counsel, and businesses alike are asking – are a plaintiff’s “informational injuries” enough to expose businesses to suit under the ADA? May plaintiffs sue because they learn of a potential ADA violation – such as by visiting a website or calling a hotel’s front desk – or must they personally suffer a concrete injury arising from the noncompliance? The U.S. Supreme Court is stepping in to answer. During the 2023-2024 term, the Court will hear the case of Acheson Hotels v. Laufer. The plaintiff, Deborah Laufer, sued Acheson Hotels LLC for failing to sufficiently provide information on its website about accessible hotel rooms, despite no indication that Ms. Laufer intended to patronize the hotel. Ms. Read More

Summer Vacation: Top 7 Tips For Divorcing Parents


Custody conflict does not have to ruin the fun of summer vacation.  It would be impossible to decide which vacations dates you will want for every year until your children go to college.  At the same time, you do not want to turn each summer into a fight over vacation dates.  The key is to set parameters that allow both parents to enjoy a summer vacation with the kids. Here are my tips: 1)    FIRST, DECIDE HOW LONG THE VACATIONS SHOULD BE How many vacation weeks or days should each parent should receive for vacation?  That depends on the ages of your children and how long you think they should go on vacation away from the other parent.  For example, with really young children, we may give each parent one week each summer.  When they are a little older, that can expand to two nonconsecutive weeks each summer.  With pre-teens and teens, consider allowing uninterrupted weeks for vacation.  Another consideration is whether extended family live further away.  Travel to Europe or Asia, for example, is difficult with only 7 days to travel. 2)    ALTERNATE FIRST CHOICE  I usually alternate on an odd/even year basis which parent gets first pick of summer weeks.  There should be a deadline for the parent with first choice so that the other parent can begin to book their plans. 3)    CONSIDER RULES ABOUT DAYS Choosing your week to begin on the Friday of the other parent’s weekend.  It is the oldest trick in the book that turns a 7-day vacation into a 10-day one.  This is why I like the “no tacking rule.”  The rule is that your week must include your own weekend and not the other party’s. 4)    PRESERVE FAMILY TRADITIONS If the other parent’s family takes a vacation the last week in July each year, consider agreeing to let the tradition continue.  Read More

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