Navigating Legal Guardianship: The Case of Patrick W.

In the intricate landscape of legal guardianship, where the rights and well-being of individuals intersect with statutory interpretation and evidentiary standards, the recent decision by the Nebraska Supreme Court in In re Guardianship of Patrick W. stands as a significant reference point. This case delves into guardianship laws' complexities, providing invaluable insights for legal professionals and individuals grappling with similar circumstances.

The appellant, Patrick W., disputed the county court's decision to appoint a permanent guardian due to his incapacitation. The appellate review in probate cases centers on the conformity of lower court decisions to legal standards, backed by competent evidence and free from uncertainty. The case also touches on statutory interpretation, specifically concerning the admissibility of evidence in guardianship disputes under Nebraska statutes.

Patrick W. suffered a debilitating stroke in 2009, leading to a series of interventions by Adult Protective Services (APS) due to concerns about his ability to manage his medical needs and finances. In 2022, Becky Stamp filed for guardianship, asserting Patrick's incapacity due to the lasting effects of his stroke. The petition was contested by Patrick, who later appointed his cousin, Terry Crandall, as his temporary guardian.

The case underwent an evidentiary hearing where multiple witnesses testified, and several documents were presented, including a contested neuropsychological report assessing Patrick’s mental and cognitive abilities. After evaluating all evidence, the county court affirmed Patrick's incapacitation and the necessity of a permanent guardian.

The focal point of the appeal was the admissibility of the neuropsychological report, which Patrick’s legal team challenged as hearsay. The Supreme Court analyzed the application of Neb. Rev. Stat. § 30-4204, which allows certain materials obtained by guardians ad litem to be admissible in evidence. The court concluded that the statute provided a specific exception to the hearsay rule, thereby permitting the admission of the neuropsychological report.

The Supreme Court affirmed the lower court's decision, holding that the admission of the neuropsychological report was proper and that the evidence confirmed the finding of incapacity. The ruling highlighted the importance of safeguarding vulnerable individuals while balancing procedural fairness in judicial proceedings.

This case illustrates the nuanced interpretation of statutes related to guardianship and the evidentiary challenges within them. It emphasizes the court's role in ensuring that decisions regarding a person's capacity and need for guardianship are made with appropriate regard to both the individual’s rights and the evidence presented. For clients navigating similar issues, this case serves as a critical guide to understanding the intersection of health conditions, legal capacity, and guardianship within the legal framework. Erickson Sederstrom attorneys are ready to help you navigate even your most challenging moments; you can reach us at 402-397-2200.

Nebraska Supreme Court Ruling on COVID-19 Workers' Compensation Claim

In the recent decision, Thiele v. Select Medical Corp., the Nebraska Supreme Court overturned the denial of a woman's workers' compensation claim for a COVID-19 infection.

Christine Thiele contracted COVID-19 in April 2020 while working as a nurse liaison at a critical care recovery hospital in Omaha. Thiele filed a Petition in the Nebraska Workers' Compensation Court alleging that COVID-19 is an occupational disease caused by her work and that she is entitled to benefits as a result of her exposure.

"Occupational disease" is defined in Section 48-151(3) as "disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment, and excludes all ordinary diseases of life to which the general public is exposed."

Initially, the Nebraska Workers Compensation Board denied her claim, ruling that COVID-19 was not to be considered an occupational disease. However, Thiel appealed, and the Nebraska Supreme Court reversed the dismissal of her case, finding that COVID-19 was still rare enough to be considered a particular risk for healthcare workers at the time of symptoms' contraction.

The Court's decision was split 4-3, with three justices endorsing one opinion considered the lead opinion; the result was that the trial judge should not have dismissed Thiel's claim and allowed the case to proceed to trial. Three justices dissented with the reasoning and result of the lead opinion. Ultimately, this decision does not resolve the ongoing debate about whether COVID-19 can be considered an occupational disease under the Nebraska Workers' Compensation Act.

The lead opinion introduced a new legal principle. It argued that when determining whether an illness is an 'ordinary disease of life,' the focus should be on the period of exposure prior to contraction or onset of symptoms, rather than the circumstances at the time of the hearing. In Thiel's case, this meant that the trial judge should have considered when she contracted the virus in 2020, a time when healthcare workers faced a heightened risk of exposure, rather than when the Petition was filed in 2022.

On the other hand, the three justices who dissented emphasized that COVID-19 has always spread in the same way; any person-to-person interaction carries the risk of contracting COVID-19 and found that COVID-19 cannot be considered anything other than an ordinary disease of life, regardless of the time period.

Thiel's case, while not providing binding authority or clarity on whether COVID-19 should be considered an occupational disease, does offer a starting point for future cases. The Court's opinion suggests that when determining if an illness, specifically COVID-19, is an ordinary disease of life, one must focus on the period of exposure. This interpretation could potentially influence future workers' compensation claims related to COVID-19.

Compliance Update for Employers and Employees – Non-Competes under the Federal Trade Commission

Yesterday, the FTC issued a significant rule regarding non-compete agreements. This is a nationally applicable rule.

In a nutshell, the FTC's rule aims to bring more transparency and fairness to non-compete agreements, ensuring they're used appropriately and not to stifle competition or restrict an employee's ability to change jobs. While this is a new rule nationally, any stricter rules under state law will still apply to those under such a state's jurisdiction.

Here are the basics to know about the new federal rule:

• Non-competes must be tailored to protect legitimate business interests.

• They should be disclosed before a job offer is accepted.

• Employees should have ample time to review and seek legal advice.

• Unreasonable restrictions could face scrutiny.

• Employers should review past non-compete agreements and may need to notify employees of the new rule's effect on them.

The rule goes into effect in 120 days. We expect legal challenges to be filed in federal courts to invalidate or limit this new rule, so stay tuned!

Nebraska employers who are abiding by Nebraska legal requirements for their non-compete and non-solicitation agreements are likely already compliant with this new federal rule. Nebraska has long required that non-competes be narrowly focused, permitting employers to prohibit from soliciting customers, clients, vendors, and employees for a limited period after their departure. Nebraska courts will not enforce generalized non-competes that amount to industry bans. Of course, some nuances could affect a particular employer or employee differently, and legal advice should always be sought.

The FTC's press release is available here: FTC Announces Rule Banning Non-competes | Federal Trade Commission.

At ES Law, we're committed to helping you stay compliant and navigate these changes smoothly. Contact us today to ensure your non-compete agreements align with the latest regulations.

A Transformative Journey: My Full-Time Government Externship in Washington D.C.

Embarking on a full-time government externship with Representative Don Bacon's office in the heart of Washington, D.C., has been an enlightening and transformative experience. Throughout this journey, I interacted with diverse individuals, delved into constitutional law and agricultural policy, and witnessed Congress's inner workings firsthand.

My days were filled with encounters, from engaging with Representative Bacon's constituents and lobbyists to collaborating with congressional staffers. This experience broadened my understanding of legislative processes and honed my legal analysis and writing skills through in-depth research on constitutional law and agricultural policy. The opportunity to review congressional bills and analyze recent Supreme Court cases provided a practical application of my academic knowledge.

One of my responsibilities included crafting tweets for Representative Bacon, which challenged me to distill complex issues into concise and impactful messages. Additionally, taking detailed notes during congressional hearings and speeches enhanced my ability to synthesize information quickly and effectively.

Beyond professional development, exploring the historical city became integral to my learning. Familiarizing myself with the U.S. Capitol and its iconic Visitor Center added a tangible dimension to my understanding of American governance.

While on the Hill, I witnessed lively debates among members of Congress on crucial policy issues. The opportunity to explore congressional offices and meet prominent figures such as Bill Nye and Gregory Marcus ( of Marcus Theaters) added a layer of inspiration to my experience. Beyond the political realm, my time outside the office was equally enriching as I immersed myself in the cultural tapestry of Washington, D.C. Exploring museums, sampling diverse cuisines, and attending Washington Commanders and Baltimore Ravens football games provided a well-rounded experience.

This externship promises lasting benefits for my academic journey. Navigating federal databases and gaining insight into the intricacies of the federal government deepened my understanding of the subjects I study. The exposure to Creighton Law alums on the East Coast expanded my professional network, offering valuable connections for the future.

Participating in the Stennis Program for Congressional Interns, a bipartisan initiative, added another layer of depth to my experience. Engaging in weekly discussions with senior congressional staff and collaborating on a group project broadened my understanding of Congress and provided a platform to share my insights.

My time in Washington, D.C., was not just a professional externship but a holistic exploration of history, politics, and culture. The lessons learned and connections forged during this period will undoubtedly shape my academic and professional trajectory, leaving an indelible mark on my journey toward a comprehensive understanding of governance and law.

Kaitlin McKenna is a 3L at Creighton University and a returning participant in Erickson Sederstrom’s Law Clerk program.

Matt Rusch Triumphs - Griffith v. LG Chem et al: Summary Judgment Affirmed on Appeal

Congratulations to partner Matt Rusch regarding a recent Nebraska Supreme Court victory, Griffith v. LG Chem et al.  The Court affirmed the Lancaster County District Court’s grant of summary judgment in favor of Erickson Sederstrom clients.  The case involved a conflict of law issues between Nebraska and Pennsylvania regarding the application of the states’ conflicting statutes of limitation. 

Background: 

The case centered around John Griffith's injuries sustained while replacing electronic cigarette batteries at his home in Pennsylvania.  He had purchased the batteries at a truck stop in Nebraska.  LG Chem and LGCAI were alleged to be the manufacturers of the batteries.  The Griffiths filed suit against LG Chem, LGCAI, Shoemaker’s, and E-Titan, alleging negligence, product liability, breach of warranty, and loss of consortium. E|S represented Shoemaker’s and E-Titan, while LG Chem and LGCAI were represented by other counsel.  Key issues included conflicting statutes of limitations from Pennsylvania and Nebraska and a challenge to personal jurisdiction over LGCAI.  The case was filed in Nebraska more than 2 years after Mr. Griffith received his injuries.  Shoemaker’s and E-Titan sought summary judgment, contending that Griffith’s claims were time-barred under Pennsylvania's 2-year limitation period. The Griffiths argued that Nebraska’s 4-year statute of limitations applied. The district court determined that an actual conflict existed between the two states' laws and that the 2-year Pennsylvania statute of limitations applied, resulting in dismissal of all claims against Shoemaker’s and E-Titan.  The district court also dismissed LG Chem and LGCAI from the case, citing a lack of personal jurisdiction.

The Griffiths appealed, challenging the summary judgment in favor of Shoemaker’s and E-Titan and the dismissal of LG Chem and LGCAI. The assignments of error focused on applying the Pennsylvania statute of limitations and the court's lack of personal jurisdiction over LGCAI.

Analysis and Conclusion:

The Nebraska Supreme Court affirmed the district court’s grant of summary judgment for Shoemaker’s and E-Titan and dismissal of the other defendants. 

The appellate court concurred with the district court's findings, emphasizing that Griffith’s negligence claims were based on Pennsylvania law, justifying application of its statute of limitations. The court also upheld the dismissal of LGCAI, stating that the Griffith failed to establish sufficient contact between LGCAI and Nebraska.

Griffith v. LG Chem, 315 Neb. 892

"Corporate Transparency Act: What Companies Need to Know and How to Comply"

Effective January 1, 2024, the Corporate Transparency Act and its corresponding regulations (the “CTA”) requires certain entities created or registered to do business in the United States to disclose certain company information to the Financial Crimes Enforcement Network, a bureau of the United States Department of Treasury. This information, referred to as Beneficial Ownership Information, must be filed online at the Financial Crimes Enforcement Network website.

Companies that are required to report are referred to as “Reporting Companies.” Generally, all companies are Reporting Companies unless they fit into one of the 23 exemptions provided by the CTA. The report requires certain information about the Reporting Company and its Beneficial Owners, as defined by the CTA.

For Reporting Companies formed prior to January 1, 2024, the report must be filed before January 1, 2025. For Reporting Companies formed in 2024, the report must be filed within 90 days of the Reporting Company receiving notice of its formation. Reporting Companies formed after 2024 will have 30 days from the Reporting Company receiving notice of its formation to file the report.

The report is only required to be filed one time. However, if there is any change to the required information, an updated report must be filed within 30 days of such change. These changes include, but are not limited to, the name of the company (including a new trade name), a change in Beneficial Owners, a change to a Beneficial Owner’s name, address, or unique identifying number (including a change to their driver’s license or other identifying document, in which case the Reporting Company will need to upload a new image of the identifying document).

A person who willfully violates the reporting requirements may be subject to civil penalties of up to $500 per day for each day the violation continues. They also may be subject to criminal penalties of up to two years in prison and a fine of up to $10,000.

If you need assistance determining whether your entity is a Reporting Company, who its Beneficial Owners are, or filing the report, the attorneys at Erickson Sederstrom can assist you in complying with these new federal requirements.

Meet Our Newest Attorney Callie G. Williams!

Omaha Estate Attorney Callie G. Williams

We are delighted to introduce Callie Williams, the latest addition to our estate team. With a wealth of experience and a unique perspective, Callie brings fresh energy and valuable insights to our firm.

Beyond the general opportunity to experience the realities of being a practicing attorney, Williams is looking forward to learning from the highly esteemed attorneys of Erickson Sederstrom, the prospect of contributing positively to clients and the Greater Omaha community, and the opportunity to discover her niche within the practice.

A graduate of the University of Nebraska Omaha and the University of Missouri-Kansas City School of Law, her past experiences will undoubtedly contribute to her future success in law.

Active in various legal associations, including the Treasurer position for the Nebraska State Bar Association's Real Estate, Probate, and Trust Law section, Callie is not just a legal professional but a dedicated advocate for positive change. She serves on the Board of Directors for Ambassadors Worship Center and is actively engaged in community service.

“As a minority, I understand the importance of diversity and inclusion, and I am committed to promoting these values in the workplace. My journey as the first attorney in my family reflects my ability to break barriers and navigate uncharted territory, demonstrating adaptability and a strong work ethic. The challenges I have overcome have honed my problem-solving skills and tenacity, qualities that will undoubtedly serve me well in addressing complex legal matters,” shared Williams.

Please join us in extending a warm welcome to Callie. We look forward to the valuable contributions she will bring to our team and the positive impact she will undoubtedly make in the legal profession and the community.

Matt Quandt appointed to the NDCA Board of Directors

Matthew D. Quandt

We're delighted to announce that partner Matt Quandt was appointed to the NDCA Board of Directors! The Nebraska Defense Counsel Association is comprised of approximately 200 Nebraska defense attorneys, practicing in state and federal courts. It’s mission is to enhance the knowledge and skills of its members and members' clients through educational programming and the exchange of information, ideas, and litigation techniques and to promote the highest standards of professionalism, civility and courtesy in litigation. This appointment is a testament to Matt's contributions to the legal community and his dedication to civil defense.

Matt is a key member of Erickson Sederstrom’s experienced litigation group. His practice concentrates on trucking accidents, including wrongful death and personal injury; he represents some of the biggest motor carriers and insurers in the nation.

 We extend our heartfelt congratulations to Matt on this well-deserved achievement. 

Safeguarding Your Estate: Addressing Undue Influence

In a recent estate case, the Nebraska Supreme Court applied a hearsay exception to allow the decedent's prior will as evidence of her testamentary capacity to execute the will contested by one of her sons. 

In the Estate of Walker, the decedent, Rita Walker, died at the age of 84 and left her estate to Mark Walker, her son, naming him sole beneficiary and personal representative. Rita's will excluded her three other sons. Michael Walker, one of these sons, sued to contest the will on the grounds that Rita lacked testamentary capacity to execute the will, which was executed on September 15, 2021, eleven days before her death. Michael alleged Rita was unduly influenced to execute the will. Undue influence can invalidate a will or contract when one party is unable to exercise his or her independent volition freely.

The county court determined the will was the product of undue influence and ordered that Rita's property proceed intestate, appointing Michael as personal representative. However, on appeal, the Nebraska Supreme Court held that the lower court erred in excluding evidence of Rita's prior will, signed in February of 2016. While this document was hearsay because it was not a statement of Mark himself, it fell within a hearsay exception and was relevant. The prior will served to demonstrate Rita's "constant and abiding scheme" for her property and was relevant to Rita's testamentary capacity at the time of the subsequent will's execution.

Therefore, the Nebraska Supreme Court reversed the lower court's rejection of Rita's will and remanded the case to the lower court to re-examine the issues of testamentary capacity and undue influence in consideration of Rita's prior will.

This ruling serves as a reminder to prioritize comprehensive estate planning methods to mitigate the risk of courts rejecting valid estate planning documents. Recognizing and addressing the risk that your will may be vulnerable to allegations of undue influence is crucial to ensuring your final wishes are honored.

Veik Scores Nebraska Supreme Court Victory!

Partner Heather Veik successfully defended an employer before the Nebraska Supreme Court against tort claims pursued by an employee following injuries sustained at work.  The employee asserted claims for assault and intentional infliction of emotional distress in district court after she suffered injuries during a training drill at work.  The district court dismissed the employee’s claims, concluding that the Nebraska Workers’ Compensation Act provided the employee her exclusive remedy, therefore barring her from pursuing tort claims in district court.

The Nebraska Supreme Court recently affirmed the dismissal of the employee’s claims, reaffirming that the Nebraska Workers’ Compensation Act provides the employee’s exclusive remedy for her injuries.  According to the Nebraska Supreme Court, when workers’ compensation is an employee’s exclusive remedy the employee cannot assert tort theories of recovery against his or her employer in district court.  This rule applies even when an employee claims that his or her employer acted with specific intent to cause injury.  In its decision, the Nebraska Supreme Court rejected the employee’s request to narrow the exclusivity rule and also rejected the employee’s argument that the dismissal of her claims violated public policy.

Lopez v. Catholic Charities, 315 Neb. 617 (2023)

Defending Against a Lawsuit: Legal Strategies and Tips

Litigation can be a complex and challenging process, requiring careful navigation of legal intricacies and a strategic approach to protect your interest as the defendant.

Civil litigation is litigation that one person files against another person. When a person files a civil litigation suit, they will allege that the named defendant has committed a wrongful act. As such, they, the plaintiff, are entitled to recovery under the law, most commonly referred to as damages.

This article will explore valuable tips and advice for defending civil litigation, helping you make informed decisions, and enhancing your chances of a favorable outcome. This article is intended to provide information and should not be interpreted as legal advice. If you are involved in a civil suit, you should consult an attorney; however, these are five general tips that may help you prepare to defend against potential litigation.

1. Anticipating Litigation

Litigation or being sued rarely comes out of the blue; typically, there are warning signs that the plaintiff intends to sue you.

These warning signs can come in all shapes and sizes. You may receive a letter outlining what the opposing side expects to be done by a specific date to avoid litigation.

Be mindful of these warning signs and if you are experiencing this type of behavior, contact an attorney to help you start working through the situation. After assessment, the attorney may suggest you wait and see but it is important to have that initial conversation before a suit is filed and you have a court deadline. Getting a jump start can be very beneficial in achieving effective resolution of the case and reducing the potential cost of litigation.

2. Early Assessment and Strategy Development

One of the critical elements of defending civil litigation is early assessment. If you are seeing warning signs or a suit has already been filed, you should start your assessment by reflecting on your personal knowledge of the law. Try to get a feel for where your level of expertise lies within this particular area. Take notes on what you know and jot down questions you may have. If possible, reach out to an attorney to help answer your questions.

Next, start examining the merits of the potential claim by gathering documents and even identifying potential witnesses. Start to fill in gaps or uncertainties you believe will play a role in litigation.

The law is complex and can seem overwhelming. However, you will never be right 100% of the time, but even a little knowledge helps put you in a better position than no knowledge at all.

3. Document Preservation

If you are anticipating litigation, it is critical that you immediately start preserving all relevant documents, as these documents could play a crucial role in defending the claim. These documents could be emails, contracts, financial records and statements, and any other documents you deem relevant to your case.

In addition to preserving documents, it is also important to note you want quality documents. This is because if your case proceeds to litigation, the court requires original or exact copies of all documents in order to be introduced as evidence.

Also, having all your documents in one place will save you time and money when dealing with your attorney. Giving your attorney all the documents up front will prevent unnecessary headaches later.

4. Finding an Attorney

After your initial assessment of the claim, you may find yourself in need of an attorney. Finding an attorney can prove harder than one thinks. This is because you must find an attorney who practices the type of law your suit entails, is within your budget, is available to take your case, and is someone you feel comfortable working with.

5. Honesty

Once you have chosen an attorney, it is vital to remain open and honest with them, especially when disclosing your side of the facts. Attorneys are not there to judge you, and your nondisclosures make the attorney’s job harder.

It is important to remember that attorneys must keep your information confidential, so you should always feel comfortable telling them all the facts of your situation.

Defending civil litigation requires a multifaced approach that combines strategic planning and effective communication. By following these tips and seeking the guidance of experienced legal counsel, you enhance your chances of a successful defense. Remember, each case is unique, so it is essential to tailor these strategies to the specific circumstances of your situation.

Erickson|Sederstrom litigation attorneys have handled lawsuits in Nebraska, Iowa, and surrounding states for over 55 years.

Special thanks go to Erickson|Sederstrom law clerk Emily Todd for her assistance with this article.

A Day in the Life at ES Law- The Work of a Paralegal

I have been a litigation paralegal at Erickson Sederstrom for a year and a half. After my first career as a performing artist, working in law is my ‘next act’ you might say. Growing up and as a student, I was always more drawn to classes and subjects that let me read, write, and research. When I retired from professional dance, I decided to take a chance on a new field and happened to love it as it aligned with so many of my interests and skills already.

I work for 13 of our litigation attorneys in our firm, and I can honestly say every day is different. Even when I attempt to make a schedule of priorities and plan what I want to accomplish, new things arise and I am putting out small fires, so to speak, daily. While no day can necessarily be considered normal, there are tasks that I complete regularly.

Most of my day is spent tending to litigation cases involving car accidents and semi-truck accident insurance defense and plaintiff’s work. I have attorneys who work both plaintiff and defense, so it is exciting and fun to shift my mindset as I work a case from start to finish. The first task I may complete in these cases is finding and requesting the police motor vehicle accident report. This contains vital information about the parties involved and the accident itself. My primary responsibility is the collection and summarization of medical records and bills. In accident litigation, the outcome centers around the damages, or money, owed to the plaintiff. I request medical records from years before the accident, encompassing the day of the loss and up until the present day. This allows us to identify if any of the injuries they claim occurred before and may not be entirely attributable to the accident alone. I think I was meant to be a doctor in another life, so exploring and summarizing these records allow me to live in that world.

Another aspect of working in litigation deals with court documents. I may be asked to draft a pleading, a motion or a subpoena for records. If either side has filed a motion for summary judgment for example, there will be briefs written back and forth to support and oppose each argument. In this instance, my job is to draft an index of evidence and pull the evidence that will be supplied with our brief to support our reasoning. This makes me a bit of an investigator as I cull through hundreds or thousands of pages of documents to narrow it down to precise information that will be easily digestible for a judge.

I love working collaboratively with our attorneys whether it be a car accident case, employment litigation, construction defect, or a contract dispute. I have always thrived in positions that afford me the responsibility to do my job well and the means to support others as they do their best work. As I finish my second year as a paralegal, I am grateful for the education I gained and the job that entered me into the field of law. I can’t wait to see where it takes me.

Court Awards $1.6 Million in Landmark California Case Protecting NFT Creators from Counterfeit Sellers

On October 25, 2023, the United States District Court for the Central District of California awarded NFT creator Yuga Labs, Inc. (“Yuga”) $1.6 Million after counterfeits of its nonfungible tokens (NFTs) were sold online. Yuga owns the Bored Ape Yacht Club ("BAYC") collection of NFTs that feature cartoon monkeys that have sold for upwards of $3 million each at auction. The case arose from Defendants Ryder Ripps and Jeremy Cahen selling knockoff BAYC NFTs branded as "Ryder Ripps BAYC" or “RR BAYC.” Defendants sold exact copies of the BAYC NFT images with their own unique blockchain IDs purportedly as a form of satirical commentary. However, the court did not agree that the Defendants’ conduct was an act of free speech. This case highlights the complexity of free speech as it applies to the ever-changing digital landscape.

NFTs are digital assets that come in many forms, including art, music, videos, memes, gaming content, and more. NFTs are frequently traded in exchange for cryptocurrency and stored on the blockchain. While NFT values have since plummeted, the market for NFTs was valued at $40 Billion in 2021 according to Bloomberg. NFT Market Surpassed $40 Billion in 2021, New Estimate Shows - Bloomberg.

               In this California case, Defendants argued that RR BAYC was “satirical conceptual art” – an expressive work protected under the First Amendment. They claimed the art was aimed at bringing attention to what they believed to be racist imagery and “dog whistles” in Yuga’s art. Yuga Labs, Inc. v. Ripps, 2023 U.S. Dist. LEXIS 192487, *8, 2023 WL 7089922. The court remarked that the bar for satirical art using copyright marks is fairly low, but not infinitely low. In the court’s view, “Defendants’ sale of RR/BAYC NFTs is no more artistic than the sale of a counterfeit handbag.”

Unpersuaded by the free speech arguments, the court found the Defendants’ conduct was not an expressive work because it was exactly the same product as what it purportedly sought to critique. The absurdity of the Defendants’ position was expressed succinctly by Yuga’s president, Greg Solano, during cross-examination at trial, who remarked, “it can’t be a parody of itself.” The court found Defendants had intentionally used the BAYC trademarks in an effort to profit off of Yuga's intellectual property.

Accordingly, the court found Yuga was entitled to disgorgement of Defendants’ profits (about $1.4 million), $200,000 for cyber-squatting, and a permanent injunction against Defendants to prevent them from using the BAYC marks. After finding this to be an exceptional case because the Defendants acted in bad faith and were obstructive and evasive throughout litigation, the court also awarded attorney’s fees. In total, the damages owed to Yuga amounted to over $1.6 million. This decision strongly discourages knockoff NFT trading by maintaining robust protections for intellectual property rights in digital markets.

EPA’s New Plastics Rule Imposes Recordkeeping and Reporting Requirements for Ubiquitous Toxic Chemicals

On September 28, 2023, the Environmental Protection Agency (“EPA”) released its final Toxic Substances Control Act (“TSCA”) rule containing new reporting and recordkeeping requirements for the manufacture and sale of certain plastics known as PFAS. Section 7351 of the 2020 National Defense Authorization Act required the EPA to issue a TSCA rule requiring any person who has manufactured perfluoroalkyl or polyfluoroalkyl substances (“PFAS”) in any year since January 1, 2011, to report and maintain records regarding their use of PFAS. The EPA’s rule reaches not only manufacturers of PFAS themselves, but also manufacturers of goods that contain PFAS.

According to the Centers for Disease Control, PFAS are a group of chemicals used to make coatings and products that resist heat, oil, stains, grease, and water. Per- and Polyfluorinated Substances (PFAS) Factsheet | National Biomonitoring Program | CDC. Also known as "forever chemicals," PFAS are a concern because they do not break down in the environment and have caused widespread contamination of the environment. In animal studies, PFAS negatively affect growth and development, reproduction, thyroid function, immune system responses, and liver injury. An NHANES study found four PFAS in the blood samples of nearly all the people participating. According to a notice given by the Consumer Product Safety Commission on September 20, 2023, PFAS are used in many common goods, including "non-stick cookware; water-repellent and stain-resistant clothing, carpets and other fabrics; some cosmetics; some firefighting foams; and common home products such as cleaning supplies, waxes, coatings, adhesives, paints, and sealants." Federal Register :: Per- and Polyfluoroalkyl Substances (PFAS) in Consumer Products. Due to serious concerns about PFAS in drinking water, the EPA has also recently released new standards that limit certain PFAS in drinking water to the extremely low level of 4 parts per trillion. Per- and Polyfluoroalkyl Substances (PFAS) | US EPA.

The EPA’s proposed rule will require companies to report extensive information about PFAS in their merchandise. Companies would be required to provide information relating to “chemical identity, categories of use, volumes manufactured and processed, byproducts, environmental and health effects, worker exposure, and disposal." 2022-25583.pdf (govinfo.gov). Companies would have 18 months to report this information if they have any amount of an estimated 1,462 chemical substances in the PFAS group.

Critics consider the burden of the rule to be high, especially considering how the time and cost of compiling information spanning more than a decade will affect small businesses. The EPA estimates the burden on small businesses to be $875 million and asserts that this will not have a significant impact on small entities. Id. Nevertheless, the proposed rule addresses this criticism by allowing companies to report “not known or not reasonably ascertainable” if the circumstances are such that the burden is too high. Whether the burden imposed by the EPA is reasonable may be the subject of litigation in the coming months.

               Additionally, the EPA’s authority to issue such a regulation may be affected by the Supreme Court’s upcoming review of Chevron's deference in January 2024. Overturning Chevron would reign in the regulatory power of governmental agencies. The EPA’s proposed rule regarding PFAS reporting is currently open for public comment.

ES Law Welcomes John Bachman!

ES Law proudly welcomes John Bachman, an esteemed and highly experienced attorney, to its distinguished team. John brings a wealth of expertise in various areas of the legal field, particularly in real estate development, leasing, financing, and acquisition and sale transactions.

With decades of experience, John has earned a stellar reputation for his exceptional legal insight and commitment to his clients. His diverse clientele includes developers, local governmental bodies, notably Sanitary and Improvement Districts, business and property owners, associations, institutional banks and lenders, and business owners.

John's specialization in zoning and land use further solidifies his position as a leading expert in the legal community. His extensive involvement in commercial, industrial, and residential development, leasing, and ownership has been instrumental in facilitating complex real estate transactions. Additionally, his substantial experience in oil and gas leasing transactions, carbon sequestration, and related pipeline easements for property owners and pipeline companies showcases his versatility in navigating the intricate legal aspects of these industries.

John's academic achievements include a B.S.B.A. degree from the University of Nebraska and a J.D. from Creighton University. He remains an active member of the Omaha Bar Association and the Nebraska State Bar Association, contributing to the legal community's growth and development.

Consistently recognized for his expertise, John has received accolades from prestigious institutions such as Best Lawyers in America and Chamber U.S.A. for the past two decades, affirming his status as a trustworthy authority in various real estate fields.

Welcome, John!

Nebraska Supreme Court's Ruling on Insurance Policy Limitation Periods: Key Takeaways.

On October 6, 2023, the Nebraska Supreme Court issued an opinion further supporting freedom to contract and held that a choice of law provision in an insurance policy controlled resulting in the application of a two-year contract limitation period.

Teresa Rose of Carter Lake, Iowa, was injured when the vehicle she was driving was struck by an under-insured motorist on February 3, 2018. The car Rose was driving belonged to her boyfriend, Christopher Stark, a Nebraska resident. Rose was insured under her sister’s American Family auto policy at the time of the accident. Following the accident, Rose settled with the at-fault motorist’s insurer and Stark’s insurer. Rose then attempted to claim underinsured benefits under the American Family Policy but was denied.

Rose attempted to sue American Family following the denial of benefits; however, the insurance contract stated, “any suit against [American Family] will be barred unless commenced within two years from the date of the accident.” In addition to the two-year limitation, the Policy contained a choice of law provision that stated any disputes would be governed by the laws of the state shown in the declaration of residence, which in this case, was Carter Lake, Iowa.

The district court for Douglas County determined that Iowa courts have expressed a strong public policy in favor of freedom to contract, including enforcing an underinsured motorist policy that contained a two-year limitation on actions, and thus, determined Rose’s claim time-barred. Rose appealed.

The Supreme Court analyzed the district court’s finding, stating that Rose’s claim, although based on the car accident which is a tort, actually arose out of the insurance policy, which is a contract. Because of this, contract law was applied, along with it the public policy encouraging freedom to contract which supports adherence to the black-letter terms of the policy. As the Policy terms stated, Iowa law was to be applied, and as Iowa law has historically supported a two-year limitation period for an uninsured motorist claim, that is the rule of law that the Nebraska court applied. Further, although Nebraska law has a five-year statute of limitations for contracts, Nebraska’s limitation was not found to prohibit contractual limitation periods arising from policies issued in other states, just those policies issued in Nebraska. Ultimately, the Nebraska Supreme Court affirmed the order of the district court.

Rose v. American Family Insurance Co. provides important insight not only into how far one’s freedom to contract extends but also what to keep in mind when working with insurance policies that may reach over state lines.

See Rose v. American Family Ins. Co., 315 Neb. 302 (2023).

Nebraska Paid Sick Leave Initiative: What Employers Need to Know

As the 2024 elections approach, several ballot initiatives are gaining momentum in Nebraska, with one particular initiative standing out - the Paid Sick Leave for Nebraskans. This initiative, if passed by the majority of Nebraska voters in November 2024, would significantly impact employers across the state. Here's what employers need to know to prepare for this potential change.

Key Provisions of the Paid Sick Leave Initiative:

1. Accrual of Paid Sick Leave: Under this initiative, all Nebraska businesses would be required to offer paid sick leave to employees. Employees would earn one hour of paid sick leave for every 30 hours worked.

2. Carryover of Unused Leave: Employees may carry over unused paid sick leave to the following year, but it should not exceed the maximum number of hours specified in the policy.

3. Protection from Retaliation: The initiative would put into law the ability for employees to earn and use paid sick days without retaliation.

4. Effective Date: If passed, paid sick leave would go into effect on October 1, 2025.

5. Exemptions: This policy would not interfere with collective bargaining agreements, contracts, or policies that provide employees with more generous paid sick time. It also does not apply to federal, state, or county employees.

Who Benefits:

Paid sick leave is aimed at benefiting working families and businesses alike. It ensures that employees do not have to choose between their paycheck and their family's health. It applies to full-time, part-time, and temporary employees. Businesses can benefit because paid sick leave may help attract a qualified workforce to the many open jobs across Nebraska, including appealing to workers from other states.   

Leave Entitlements:

Under the proposal, the amount of paid sick leave employees would earn varies depending on the size of the employer:

• For employers with fewer than 20 employees, workers may earn up to five days of paid sick leave per year.

• For employers with 20 or more employees, workers may earn up to seven days of paid sick leave per year.

Funding and Support:

The Paid Sick Leave for Nebraskans initiative has gained significant funding support, raising more than $1.7 million since its launch in July. The Sixteen Thirty Fund, a national organization supporting social change goals, has contributed over $1.6 million to the campaign. Local groups such as the Nebraska Appleseed Action Fund, the Women's Fund of Omaha, the Civic Engagement Table, the ACLU of Nebraska Foundation, and Raise the Wage Nebraska have also supported the campaign.

Implications for Employers:

Employers in Nebraska should be aware of the potential changes brought about by the Paid Sick Leave for Nebraskans initiative. If the initiative passes, businesses will need to adjust their policies and practices to comply with the new paid sick leave requirements. This may include implementing a tracking system for accrued leave, ensuring compliance with carryover limits, and updating company policies to prevent retaliation against employees for using paid sick leave.

In conclusion, the Paid Sick Leave for Nebraskans initiative has the potential to impact employers significantly. With fundraising support and growing public interest, this initiative could change the landscape of paid leave in the state. Employers should stay informed about the progress of this initiative and be prepared to adapt their policies accordingly if it becomes law in Nebraska.

Tips & Tricks to Keep your Leaders Informed of the Changes in Employment Law

Keeping your leaders informed about changes in employment law is crucial to ensure your organization remains compliant and minimizes legal risks. This month, ES Law released our first quarterly newsletter to ensure you stay updated with legal insights and updates you can find here. Here are some tips and tricks to help you effectively communicate and educate your leadership team about employment law changes:

Establish a Regular Update Schedule:

• Create a consistent schedule for providing updates on employment law changes. This could be monthly, quarterly, or as needed based on the frequency of legal changes in your jurisdiction.

Use Multiple Communication Channels:

• To disseminate information, utilize various communication channels such as email, newsletters, meetings, and intranet portals. Leaders may prefer different communication modes, so ensure information is accessible in multiple formats.

Tailor Information to Their Needs:

• Customize your updates to the specific needs and interests of your leadership team. Highlight how employment law changes may impact their departments or areas of responsibility.

Provide Clear Summaries:

• Condense complex legal jargon into clear, concise summaries that are easy for non-legal professionals to understand. Use bullet points, charts, and examples to illustrate key points.

Include Real-life Scenarios:

• Share real-life case studies or scenarios demonstrating how employment law changes can impact the organization. This can make the information more relatable and actionable.

Offer Training and Workshops:

• Organize training sessions or workshops focused on employment law updates. Invite legal experts or consultants to provide in-depth explanations and answer questions.

Create a Resource Library:

• Maintain a central repository of resources related to employment law changes. This could include legal documents, reference guides, and links to relevant government websites.

Encourage Questions and Discussion:

• Foster an environment where leaders feel comfortable asking questions and discussing concerns related to employment law changes. Create a designated point of contact for inquiries.

Provide Legal Updates in Context:

• Explain how employment law changes fit into the broader legal landscape and organizational goals. This can help leaders see the relevance and importance of staying informed.

Highlight Potential Risks and Mitigation Strategies:

• Clearly outline any potential risks or liabilities associated with non-compliance and suggest mitigation strategies.

Stay Proactive, Not Reactive:

• Don't wait until a legal issue arises to inform your leaders. Provide updates proactively so they can take preventive actions.

Seek Legal Counsel:

• Work closely with your organization's legal counsel or an employment law expert. They can provide guidance on which updates are critical and how to communicate them effectively.

Feedback Loop:

• Encourage leaders to provide feedback on the effectiveness of your communication and training efforts. Use this feedback to improve your approach continually.

Stay Updated Yourself:

• As the person responsible for communicating employment law changes, ensure you stay up-to-date with the latest developments. Attend legal seminars, subscribe to legal newsletters, and network with other HR professionals.

Legal Compliance Alerts:

• Consider subscribing to legal compliance alert services that provide timely notifications of changes in employment law. These can be invaluable for staying ahead of legal updates.

By implementing these tips and tricks, you can help ensure that your leaders are well-informed about changes in employment law and that your organization remains compliant and prepared for any legal challenges. If you find this list helpful, you can sign up for more insights delivered directly to your inbox quarterly by visiting our Employment Newsletter page.

Piercing the Corporate Veil - Can you collect from the individuals that own the company that owes you money?

If you obtain a judgment against a company, you can collect that judgment from the company's owners under certain circumstances. This is a legal concept called piercing the corporate veil. It comes up with corporations, LLCs, and other types of limited liability companies (businesses formed to protect owners from liability for business debts). However, it is the exception to the general rule that owners of a limited liability business are not liable for the business’s debts. Specific facts must be proven to pierce the corporate veil. The Nebraska Supreme Court recently reviewed these in the case of 407 N 117 Street, LLC v. Harper et al.

A Nebraska court may pierce the corporate veil to hold owners liable “only where the corporation has been used to commit fraud, violate a legal duty, or perpetrate a dishonest or unjust act in contravention of the rights of another.” 407 N 117 Street, 314 Neb. 843, 849 (2023)(citation omitted). Often, fraud is alleged as the grounds for piercing. Nebraska courts will consider the following factors to determine whether to disregard the corporate entity based on fraud:

1. Was there grossly inadequate capitalization of the company?

2. Was the company insolvent at the time the debt was incurred?

3. Did a shareholder/owner divert company funds or assets for their own use or other improper use?

4. Was the company a mere façade for the personal dealings of the shareholder/owner, and were company operations conducted by the shareholder disregarding the corporate entity?

Because this is the exception to the general rule of limited liability, the party seeking to collect against the shareholders/owners must prove these facts. While possible, it can be challenging to establish absent clear, strong evidence of the above, as the recent case described here shows. The court entered summary judgment in favor of the individual owners and did not pierce the corporate veil. The result in cases like this can be that the creditor does not recover any of its judgment at all, where a company has little or no assets remaining to collect. Early strategies in litigation and collection efforts can be developed in many cases to ensure against this kind of result. On the other hand, legal advice from an experienced attorney in this field can help business owners be sure they will not become subject to claims to pierce the corporate veil of their business and hold them individually liable for company obligations.