Eric W.F. Niederer

Q: What should an employer do when an employee needs a reasonable accommodation for a disability? A: Under the Americans with Disabilities Act (ADA), and in some instances under state and local laws, if an employee with a disability sufficiently requests an accommodation, the employer must engage in a good-faith, interactive process with the employee to identify if a reasonable accommodation exists. In practice, the interactive process is an ongoing, two-way dialogue rather than a single conversation. The employer typically asks the employee to clarify the nature of the limitation, may request reasonably necessary medical documentation supporting the need for accommodation, and should discuss and evaluate potential accommodation options with the employee, including why a particular option may or may not work. The employee, in turn, should respond to the employer’s questions, provide the requested medical information, and engage with proposed solutions rather than insisting on one preferred accommodation. This exchange often takes multiple rounds of communication and should continue until a reasonable accommodation is identified, or until the employer determines in good faith that none is available. Employers should document each step of this exchange contemporaneously, including the initial request, the information exchanged, the options discussed, and the reasons for accepting or rejecting each option, since this record is often decisive if the accommodation decision is later challenged. When Does the Duty to Engage Begin? As a practical matter, an employer should not wait for a formal or perfectly-worded request, though the legal trigger varies by jurisdiction. The Eleventh Circuit (Florida, Georgia, and Alabama), for example, requires the employee to make a specific demand for accommodation and provide enough information for the employer to understand how to address the limitation.1 In Owens v. Georgia, Governor's Office of Student Achievement, 52 F.4th 1327 (11th Cir. 2022),2 the court held that an employee who cited only childbirth-related complications, without more, and requested telework had not provided enough information to trigger the duty to engage. Other jurisdictions impose a lower burden. The Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) has held that the duty to engage is triggered merely by notice of the disability and a desire for3 accommodation—a more employee-protective standard. It has also held that if an employee is unable to request an accommodation but the employer knows of the disability, the employer must help initiate the process. Similarly, the requirements around the interactive process can be lenient depending on state and local requirements.  These cases set a floor, not a ceiling: they describe the minimum an employee must show before a court will find the duty to engage was legally triggered, not a safe harbor for delay. Given this jurisdictional variation and the fact-specific nature of the inquiry, employers seeking to protect against failure-to-accommodate claims should discuss potential accommodations whenever an employee requests one or raises a medical condition affecting their work—while remembering that engaging early does not obligate the employer to grant any particular accommodation. It simply starts the conversation and creates a record of good faith. What Accommodations Should an Employer Consider? Determining an appropriate accommodation is a case-by-case analysis, and multiple factors can be relevant, including the nature of the employee’s disability, the essential functions of the position, the operational needs of the business, and whether the underlying condition or needed accommodation is temporary or permanent. The ADA, at 42 U.S.C. § 12111(9), provides a non-exhaustive list of potential accommodations, including making facilities accessible, job restructuring, modified work schedules, reassignment to a vacant position, equipment modification, adjusted exams or training materials, and qualified readers or interpreters. The appropriate accommodation depends on the employee’s particular disability—for example, an employee with regular medical appointments might be accommodated with a modified schedule. Employers should evaluate each request individually and document the process. Limits on the Duty to Accommodate An employer need not remove essential job functions, nor must it provide an employee’s preferred accommodation if another available option allows the employee to perform those functions. While reassignment to a vacant position may be reasonable, the employer need not create a new position or reassign the employee to a role for which they are unqualified. Federal appellate courts are split on whether reassignment is mandatory: the Tenth Circuit, in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999), held that it is, while the Fourth,4 Fifth,5 Eighth,6 and Eleventh Circuits7 have held that employers need only let the employee compete for the vacancy. Employers should confirm the applicable circuit’s standard before handling a reassignment request.  An employer also need not provide an accommodation that would create an undue hardship—a high standard requiring proof of significant difficulty or expense. The burden of proving undue hardship rests on the employer, not the employee: it is not enough to assert that an accommodation is inconvenient or costly; the employer must show, with specific evidence, the actual cost, its financial resources and size, and the impact on operations.  Practical Tips for Employers Employers should keep several practical points in mind.  1. A sound approach to protecting against claims is to discuss potential accommodations whenever an employee requests one or raises a medical condition needing a workplace adjustment. The legal floor for when the duty is actually triggered varies by jurisdiction and can be higher than this practical approach, so acting sooner helps guard against uncertainty. 2. Remember the process is a two-way obligation: employers should not wait passively for the employee to identify the perfect accommodation, and employees should not expect the employer to solve the problem unassisted. The employer should ask the employee to clarify the limitation, request necessary medical documentation, and discuss accommodation options; the employee should respond, provide the requested information, and engage with proposed solutions rather than insist on one preferred option. Both sides should share information and discuss options collaboratively and in good faith, often over multiple rounds, until a reasonable accommodation is identified or the employer determines in good faith that none exists. 3. Document each step of the process, including the initial request, information exchanged, options considered, and the reasoning behind any accommodation granted or denied, since this record can be critical if the decision is later challenged.  4. Approach the interactive process as an obligation to share information and discuss accommodations in good faith. An employer that genuinely engages is more likely to find a workable solution and avoid litigation that a defensive, box-checking approach often invites. Employers with questions about the ADA and the interactive process should consult an attorney. Employers have mandated duties under the ADA and comparable state and local laws, and failing to satisfy them can expose employers to significant liability, including claims for discrimination, failure to accommodate, and retaliation. Given these obligations and the fact-specific nature of the interactive process, it is always good practice to consult with employment counsel before making a final accommodation decision. ______________________________________________________________________________________________ 1 Frazier-White v. Gee, 818 F.3d 1249 (11th Cir. 2016). 2 Owens addressed the Rehabilitation Act, but it applies equally to the Americans with Disabilities Act. 3 Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), r’vd on other grounds 535 U.S. 391 (2002). 4 Elledge v. Lowe’s Home Ctrs., 979 F.3d 1004 (4th Cir. 2020). 5 Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) 6 Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007). 7 EEOC v. St. Joseph's Hosp., Inc., 842 F.3d 1333 (11th Cir. 2016).

Jonathan Meer (Partner-New York, NY) obtained a no probable cause determination from the New York State Division of Human Rights on behalf of an employer/respondent, resulting in the dismissal of claims alleging employment discrimination arising from the termination of an employee. The complainant, a former security guard at a residence serving individuals escaping domestic violence, alleged that her termination constituted race and national origin discrimination. The respondent maintained that the complainant was terminated after a serious security breach in which unauthorized individuals were permitted to enter the facility. The investigator on the matter noted that the record included video evidence from the date of the incident supporting the immediate termination of employment of both the complainant and another employee assigned to the front desk, and that similarly situated employees of different races and national origins had been terminated for comparable conduct at the respondent’s facilities. The Division concluded that the employer's stated reasons for the termination were supported by the record and were not a pretext for discrimination.

In 2021, the New Jersey Supreme Court adopted the "ongoing storm rule" in Pareja v. Princeton International Properties, holding that commercial landowners have no duty to clear snow and ice until a reasonable time after a storm ends—unless "unusual circumstances" exist. Five years later, the Court has applied that exception for the first time in a published decision, and the result is more good news for commercial property owners. This case arose from a slip-and-fall at a Walmart parking lot in Union Township on January 3, 2015, during a storm of mixed snow, sleet, and rain that began around 11:30 a.m. At the time of the plaintiff's fall, roughly 1:30 p.m., there was only a "trace" to one-tenth of an inch of accumulation on the lot. Walmart's snow-removal contractor had spread salt on the lot from 12:35 to 1:15 p.m. but had not pretreated the surface before the storm began. A jury found Walmart negligent and awarded the plaintiff over $1.3 million, and the Appellate Division later ordered a new trial rather than dismissal.  On July 30, 2026, the Supreme Court reversed and directed judgment for Walmart. Under the "ongoing storm rule," a commercial landowner's duty to clear snow and ice arises within a reasonable time after a storm ends, not during the event. One of the exceptions to the ongoing storm rule, defined by the Court’s 2021 holding in Pareja v. Princeton Int’l, is where the landowner's conduct creates "unusual circumstances" that exacerbate the risk of injury. The Court in Gallardo held that ordinary, if imperfect, remediation efforts, such as salting a lot with only minimal accumulation, do not meet that "unusual circumstances" threshold, even when the plaintiff alleges that treatment made conditions worse. Commercial landowners are not obligated to clear snow or ice mid-storm, and undertaking reasonable, ordinary de-icing measures during a storm will not, by itself, create liability. Owners should document the timing of all remediation efforts and retain contractor service records, since the absence of "unusual circumstances" was central to the outcome in this decision.  This decision may further reduce exposure to ongoing-storm slip-and-fall claims against commercial insureds absent evidence the insured's actions were genuinely unusual or created a new hazard beyond the storm's natural effects. However, plaintiffs will likely continue to raise novel arguments regarding whether conduct exceeded ordinary snow-removal practice and how that can be subject to interpretation by different experts. 

Valerie Kellner (Of Counsel-Philadelphia, PA) was reelected as a Senior Director for the Federation of Defense and Corporate Counsel (FDCC) at the 2026 Annual Meeting. She currently serves on the Board of Directors and the Executive Committee. The FDCC is an invitation-only organization of lawyers who focus their practice on the defense of civil claims and representation of insurers and corporations. 

Joshua Bachrach (Partner–Philadelphia, PA) will speak on August 12 at the Reinsurance Group of America (RGA) Fraud Conference. Josh will join other world-class fraud experts in exploring how AI is reshaping insurance fraud – from synthetic identities and deepfake claims to AI-generated documentation that outpaces traditional detection.

​Jonathan Meer (Partner-New York, NY) was quoted in the July 30, 2026, installment of Law360 as part of an article titled “United’s CrowdStrike Fight Promises Cyber Coverage Insights.” Jonathan distinguishes between primary and excess insurers and notes that the latter are “free to make differing assessments of liability and coverage, including from other excess insurers.”  He continues, “The question becomes, ‘What is their good faith assessment of the coverage evaluation?’ and reasonable minds can differ.” 

Jennifer Moran (Partner-Madison, NJ) authored the article “Golf Course Liability for Lightning: Nearly 30-Year-Old Standard Meets New Technology,” published in the July 28, 2026, edition of Law.com. The article explores how two high-profile lightning strikes at New Jersey golf courses in 2025 could reshape premises liability law for recreational facilities. Jennifer explains that the resulting litigation may prompt New Jersey courts to revisit the nearly 30-year-old Maussner v. Atlantic City Country Club decision and redefine what constitutes reasonable care considering modern weather-monitoring and lightning-detection technology. She examines the legal framework established in Maussner, analyzing how advances in real-time weather alerts, GPS-integrated warning systems, and smartphone technology may influence future duty-of-care determinations, and discusses how the pending litigation could affect golf course operators, insurers, and premises liability practitioners nationwide. The article also offers practical guidance on risk management, emphasizing the importance of implementing, documenting, and consistently enforcing weather-monitoring and evacuation protocols, with Jennifer noting, "The central lesson remains instructive: liability turns not on whether a course adopts any particular safety measure but on whether it implements the measures it does adopt with reasonable care."

Isaac Netzer (Associate-New York, NY) will again serve as a faculty member for the National Business Institute (NBI) in conjunction with two rebroadcasts of the CLE webinar “Pleadings, Motions, and Briefs: AI Edition,” to be held on August 20, 2026, and October 27, 2026. Back by popular demand, Isaac’s program focuses on the practical use of artificial intelligence in litigation, including AI’s capabilities and limitations, ethical and confidentiality considerations, and real-world applications in drafting pleadings, motions, briefs, and conducting document review. The rebroadcasts of Isaac’s November 2025 NBI presentation will cover topics such as strategic prompt design, identifying AI blind spots, authority validation, and using AI to assess both one’s own filings and opposing counsel’s submissions, with Isaac hosting live Q&A sessions following the rebroadcasts. 

Stuart Miller (Partner-New York, NY/West Palm Beach/Orlando/Miami) will join the panel “Preventing the ‘Big Loss’ in Liability Litigation” at the Workers’ Compensation Institute’s (WCI) 80th Annual Workers’ Compensation Educational Conference and 37th Safety & Health Conference, to be held August 22 ‒ 26, 2026, at the Orlando World Center Marriott in Orlando, Florida. Stuart, as defense counsel frequently called to “parachute in” on difficult cases, will be joined by a renowned attorney from the South Florida Plaintiff’s Bar and a risk manager from the industrial construction realm. The panelists will examine how risk managers, claims professionals, and in-house counsel can avoid costly mistakes that lead to catastrophic liability outcomes and potentially career-defining losses. They’ll explore the growing challenges posed by social inflation, litigation funding, litigation abuse, and increasingly large jury verdicts, as well as evolving plaintiff strategies and lessons learned from both defense and plaintiff perspectives on what drives successful litigation outcomes. The session also provides practical strategies for managing litigation risk in the shifting landscape of personal injury litigation. 

Peter A. Lauricella (Partner-Albany, NY) and Kadeem O. Wolliaston (Associate-Albany, NY) obtained an affirmance from the New York Supreme Court, Appellate Division, Third Department, upholding the dismissal of a complaint alleging fraud and breach of fiduciary duty arising from the sale of a closely held business. The plaintiffs sought over $2 million in damages.  In the underlying matter, Crane et al.v. WP Strategic Holdings, LLC, the plaintiffs sought to rescind a negotiated agreement and release after learning that the acquired company was later sold to a third party for substantially more than its purchase price. The plaintiffs alleged that Wilson Elser’s clients fraudulently concealed ongoing sale negotiations, arguing that the release should be set aside based on fraud, breach of fiduciary duty, and the special facts doctrine. The Third Department unanimously affirmed the Albany County Supreme Court's dismissal of the complaint, holding that the attorney-negotiated release was clear, unambiguous, and enforceable. Relying on the New York Court of Appeal’s decision in Centro Empresarial Cempresa S.A. v. América Móvil, S.A.B. de C.V., the court reiterated that a party seeking to avoid a release must identify a fraud that is separate and distinct from the subject matter of the release itself. Because the plaintiffs’ allegations concerned the value of the ownership interest they had agreed to relinquish, rather than a separate fraud inducing execution of the release, their claims were barred as a matter of law. The court also rejected the plaintiffs’ contention that they were owed fiduciary duties as shareholders, holding that the language of the parties' Agreement and Mutual Release expressly acknowledged that no agreement had been reached regarding the terms under which the plaintiffs would hold ownership interest in the company. As a result, the plaintiffs were not shareholders when they executed the release, and no fiduciary duty arose. In so holding, the court confirmed that recital provisions in an agreement may properly be considered to determine the parties’ intent and the contract’s purpose when evaluating documentary evidence under CPLR 3211. Finally, the Third Department held that the plaintiffs failed to establish justifiable reliance, noting that they were sophisticated businesspersons represented by independent counsel, were aware that the company could be sold at any point in the future before signing the release, and nevertheless chose to proceed without seeking additional protections or conducting further inquiry. Under those circumstances, the plaintiffs assumed the business risk of entering into the settlement and could not later invalidate the release on the basis of alleged nondisclosure. The court likewise rejected the plaintiffs’ reliance on the “special facts” doctrine, concluding that the alleged information could not support rescission where the plaintiffs failed to exercise ordinary intelligence in protecting their interests. The decision reinforces New York’s strong public policy favoring the enforcement of negotiated releases and provides important guidance for businesses resolving ownership and investment disputes. It also underscores that sophisticated parties represented by counsel cannot later avoid broad settlement agreements absent allegations of a separate, independent fraud or reasonable reliance sufficient to invalidate the release.

In 2021, the New Jersey Supreme Court adopted the "ongoing storm rule" in Pareja v. Princeton International Properties, holding that commercial landowners have no duty to clear snow and ice until a reasonable time after a storm ends—unless "unusual circumstances" exist. Five years later, the Court has applied that exception for the first time in a published decision, and the result is more good news for commercial property owners. This case arose from a slip-and-fall at a Walmart parking lot in Union Township on January 3, 2015, during a storm of mixed snow, sleet, and rain that began around 11:30 a.m. At the time of the plaintiff's fall, roughly 1:30 p.m., there was only a "trace" to one-tenth of an inch of accumulation on the lot. Walmart's snow-removal contractor had spread salt on the lot from 12:35 to 1:15 p.m. but had not pretreated the surface before the storm began. A jury found Walmart negligent and awarded the plaintiff over $1.3 million, and the Appellate Division later ordered a new trial rather than dismissal.  On July 30, 2026, the Supreme Court reversed and directed judgment for Walmart. Under the "ongoing storm rule," a commercial landowner's duty to clear snow and ice arises within a reasonable time after a storm ends, not during the event. One of the exceptions to the ongoing storm rule, defined by the Court’s 2021 holding in Pareja v. Princeton Int’l, is where the landowner's conduct creates "unusual circumstances" that exacerbate the risk of injury. The Court in Gallardo held that ordinary, if imperfect, remediation efforts, such as salting a lot with only minimal accumulation, do not meet that "unusual circumstances" threshold, even when the plaintiff alleges that treatment made conditions worse. Commercial landowners are not obligated to clear snow or ice mid-storm, and undertaking reasonable, ordinary de-icing measures during a storm will not, by itself, create liability. Owners should document the timing of all remediation efforts and retain contractor service records, since the absence of "unusual circumstances" was central to the outcome in this decision.  This decision may further reduce exposure to ongoing-storm slip-and-fall claims against commercial insureds absent evidence the insured's actions were genuinely unusual or created a new hazard beyond the storm's natural effects. However, plaintiffs will likely continue to raise novel arguments regarding whether conduct exceeded ordinary snow-removal practice and how that can be subject to interpretation by different experts. 

Jonathan Meer (Partner-New York, NY) obtained a no probable cause determination from the New York State Division of Human Rights on behalf of an employer/respondent, resulting in the dismissal of claims alleging employment discrimination arising from the termination of an employee. The complainant, a former security guard at a residence serving individuals escaping domestic violence, alleged that her termination constituted race and national origin discrimination. The respondent maintained that the complainant was terminated after a serious security breach in which unauthorized individuals were permitted to enter the facility. The investigator on the matter noted that the record included video evidence from the date of the incident supporting the immediate termination of employment of both the complainant and another employee assigned to the front desk, and that similarly situated employees of different races and national origins had been terminated for comparable conduct at the respondent’s facilities. The Division concluded that the employer's stated reasons for the termination were supported by the record and were not a pretext for discrimination.

Q: What should an employer do when an employee needs a reasonable accommodation for a disability? A: Under the Americans with Disabilities Act (ADA), and in some instances under state and local laws, if an employee with a disability sufficiently requests an accommodation, the employer must engage in a good-faith, interactive process with the employee to identify if a reasonable accommodation exists. In practice, the interactive process is an ongoing, two-way dialogue rather than a single conversation. The employer typically asks the employee to clarify the nature of the limitation, may request reasonably necessary medical documentation supporting the need for accommodation, and should discuss and evaluate potential accommodation options with the employee, including why a particular option may or may not work. The employee, in turn, should respond to the employer’s questions, provide the requested medical information, and engage with proposed solutions rather than insisting on one preferred accommodation. This exchange often takes multiple rounds of communication and should continue until a reasonable accommodation is identified, or until the employer determines in good faith that none is available. Employers should document each step of this exchange contemporaneously, including the initial request, the information exchanged, the options discussed, and the reasons for accepting or rejecting each option, since this record is often decisive if the accommodation decision is later challenged. When Does the Duty to Engage Begin? As a practical matter, an employer should not wait for a formal or perfectly-worded request, though the legal trigger varies by jurisdiction. The Eleventh Circuit (Florida, Georgia, and Alabama), for example, requires the employee to make a specific demand for accommodation and provide enough information for the employer to understand how to address the limitation.1 In Owens v. Georgia, Governor's Office of Student Achievement, 52 F.4th 1327 (11th Cir. 2022),2 the court held that an employee who cited only childbirth-related complications, without more, and requested telework had not provided enough information to trigger the duty to engage. Other jurisdictions impose a lower burden. The Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) has held that the duty to engage is triggered merely by notice of the disability and a desire for3 accommodation—a more employee-protective standard. It has also held that if an employee is unable to request an accommodation but the employer knows of the disability, the employer must help initiate the process. Similarly, the requirements around the interactive process can be lenient depending on state and local requirements.  These cases set a floor, not a ceiling: they describe the minimum an employee must show before a court will find the duty to engage was legally triggered, not a safe harbor for delay. Given this jurisdictional variation and the fact-specific nature of the inquiry, employers seeking to protect against failure-to-accommodate claims should discuss potential accommodations whenever an employee requests one or raises a medical condition affecting their work—while remembering that engaging early does not obligate the employer to grant any particular accommodation. It simply starts the conversation and creates a record of good faith. What Accommodations Should an Employer Consider? Determining an appropriate accommodation is a case-by-case analysis, and multiple factors can be relevant, including the nature of the employee’s disability, the essential functions of the position, the operational needs of the business, and whether the underlying condition or needed accommodation is temporary or permanent. The ADA, at 42 U.S.C. § 12111(9), provides a non-exhaustive list of potential accommodations, including making facilities accessible, job restructuring, modified work schedules, reassignment to a vacant position, equipment modification, adjusted exams or training materials, and qualified readers or interpreters. The appropriate accommodation depends on the employee’s particular disability—for example, an employee with regular medical appointments might be accommodated with a modified schedule. Employers should evaluate each request individually and document the process. Limits on the Duty to Accommodate An employer need not remove essential job functions, nor must it provide an employee’s preferred accommodation if another available option allows the employee to perform those functions. While reassignment to a vacant position may be reasonable, the employer need not create a new position or reassign the employee to a role for which they are unqualified. Federal appellate courts are split on whether reassignment is mandatory: the Tenth Circuit, in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999), held that it is, while the Fourth,4 Fifth,5 Eighth,6 and Eleventh Circuits7 have held that employers need only let the employee compete for the vacancy. Employers should confirm the applicable circuit’s standard before handling a reassignment request.  An employer also need not provide an accommodation that would create an undue hardship—a high standard requiring proof of significant difficulty or expense. The burden of proving undue hardship rests on the employer, not the employee: it is not enough to assert that an accommodation is inconvenient or costly; the employer must show, with specific evidence, the actual cost, its financial resources and size, and the impact on operations.  Practical Tips for Employers Employers should keep several practical points in mind.  1. A sound approach to protecting against claims is to discuss potential accommodations whenever an employee requests one or raises a medical condition needing a workplace adjustment. The legal floor for when the duty is actually triggered varies by jurisdiction and can be higher than this practical approach, so acting sooner helps guard against uncertainty. 2. Remember the process is a two-way obligation: employers should not wait passively for the employee to identify the perfect accommodation, and employees should not expect the employer to solve the problem unassisted. The employer should ask the employee to clarify the limitation, request necessary medical documentation, and discuss accommodation options; the employee should respond, provide the requested information, and engage with proposed solutions rather than insist on one preferred option. Both sides should share information and discuss options collaboratively and in good faith, often over multiple rounds, until a reasonable accommodation is identified or the employer determines in good faith that none exists. 3. Document each step of the process, including the initial request, information exchanged, options considered, and the reasoning behind any accommodation granted or denied, since this record can be critical if the decision is later challenged.  4. Approach the interactive process as an obligation to share information and discuss accommodations in good faith. An employer that genuinely engages is more likely to find a workable solution and avoid litigation that a defensive, box-checking approach often invites. Employers with questions about the ADA and the interactive process should consult an attorney. Employers have mandated duties under the ADA and comparable state and local laws, and failing to satisfy them can expose employers to significant liability, including claims for discrimination, failure to accommodate, and retaliation. Given these obligations and the fact-specific nature of the interactive process, it is always good practice to consult with employment counsel before making a final accommodation decision. ______________________________________________________________________________________________ 1 Frazier-White v. Gee, 818 F.3d 1249 (11th Cir. 2016). 2 Owens addressed the Rehabilitation Act, but it applies equally to the Americans with Disabilities Act. 3 Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), r’vd on other grounds 535 U.S. 391 (2002). 4 Elledge v. Lowe’s Home Ctrs., 979 F.3d 1004 (4th Cir. 2020). 5 Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) 6 Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007). 7 EEOC v. St. Joseph's Hosp., Inc., 842 F.3d 1333 (11th Cir. 2016).

Valerie Kellner (Of Counsel-Philadelphia, PA) was reelected as a Senior Director for the Federation of Defense and Corporate Counsel (FDCC) at the 2026 Annual Meeting. She currently serves on the Board of Directors and the Executive Committee. The FDCC is an invitation-only organization of lawyers who focus their practice on the defense of civil claims and representation of insurers and corporations. 

Joshua Bachrach (Partner–Philadelphia, PA) will speak on August 12 at the Reinsurance Group of America (RGA) Fraud Conference. Josh will join other world-class fraud experts in exploring how AI is reshaping insurance fraud – from synthetic identities and deepfake claims to AI-generated documentation that outpaces traditional detection.

​Jonathan Meer (Partner-New York, NY) was quoted in the July 30, 2026, installment of Law360 as part of an article titled “United’s CrowdStrike Fight Promises Cyber Coverage Insights.” Jonathan distinguishes between primary and excess insurers and notes that the latter are “free to make differing assessments of liability and coverage, including from other excess insurers.”  He continues, “The question becomes, ‘What is their good faith assessment of the coverage evaluation?’ and reasonable minds can differ.” 

Jennifer Moran (Partner-Madison, NJ) authored the article “Golf Course Liability for Lightning: Nearly 30-Year-Old Standard Meets New Technology,” published in the July 28, 2026, edition of Law.com. The article explores how two high-profile lightning strikes at New Jersey golf courses in 2025 could reshape premises liability law for recreational facilities. Jennifer explains that the resulting litigation may prompt New Jersey courts to revisit the nearly 30-year-old Maussner v. Atlantic City Country Club decision and redefine what constitutes reasonable care considering modern weather-monitoring and lightning-detection technology. She examines the legal framework established in Maussner, analyzing how advances in real-time weather alerts, GPS-integrated warning systems, and smartphone technology may influence future duty-of-care determinations, and discusses how the pending litigation could affect golf course operators, insurers, and premises liability practitioners nationwide. The article also offers practical guidance on risk management, emphasizing the importance of implementing, documenting, and consistently enforcing weather-monitoring and evacuation protocols, with Jennifer noting, "The central lesson remains instructive: liability turns not on whether a course adopts any particular safety measure but on whether it implements the measures it does adopt with reasonable care."

Isaac Netzer (Associate-New York, NY) will again serve as a faculty member for the National Business Institute (NBI) in conjunction with two rebroadcasts of the CLE webinar “Pleadings, Motions, and Briefs: AI Edition,” to be held on August 20, 2026, and October 27, 2026. Back by popular demand, Isaac’s program focuses on the practical use of artificial intelligence in litigation, including AI’s capabilities and limitations, ethical and confidentiality considerations, and real-world applications in drafting pleadings, motions, briefs, and conducting document review. The rebroadcasts of Isaac’s November 2025 NBI presentation will cover topics such as strategic prompt design, identifying AI blind spots, authority validation, and using AI to assess both one’s own filings and opposing counsel’s submissions, with Isaac hosting live Q&A sessions following the rebroadcasts. 

Stuart Miller (Partner-New York, NY/West Palm Beach/Orlando/Miami) will join the panel “Preventing the ‘Big Loss’ in Liability Litigation” at the Workers’ Compensation Institute’s (WCI) 80th Annual Workers’ Compensation Educational Conference and 37th Safety & Health Conference, to be held August 22 ‒ 26, 2026, at the Orlando World Center Marriott in Orlando, Florida. Stuart, as defense counsel frequently called to “parachute in” on difficult cases, will be joined by a renowned attorney from the South Florida Plaintiff’s Bar and a risk manager from the industrial construction realm. The panelists will examine how risk managers, claims professionals, and in-house counsel can avoid costly mistakes that lead to catastrophic liability outcomes and potentially career-defining losses. They’ll explore the growing challenges posed by social inflation, litigation funding, litigation abuse, and increasingly large jury verdicts, as well as evolving plaintiff strategies and lessons learned from both defense and plaintiff perspectives on what drives successful litigation outcomes. The session also provides practical strategies for managing litigation risk in the shifting landscape of personal injury litigation. 

Peter A. Lauricella (Partner-Albany, NY) and Kadeem O. Wolliaston (Associate-Albany, NY) obtained an affirmance from the New York Supreme Court, Appellate Division, Third Department, upholding the dismissal of a complaint alleging fraud and breach of fiduciary duty arising from the sale of a closely held business. The plaintiffs sought over $2 million in damages.  In the underlying matter, Crane et al.v. WP Strategic Holdings, LLC, the plaintiffs sought to rescind a negotiated agreement and release after learning that the acquired company was later sold to a third party for substantially more than its purchase price. The plaintiffs alleged that Wilson Elser’s clients fraudulently concealed ongoing sale negotiations, arguing that the release should be set aside based on fraud, breach of fiduciary duty, and the special facts doctrine. The Third Department unanimously affirmed the Albany County Supreme Court's dismissal of the complaint, holding that the attorney-negotiated release was clear, unambiguous, and enforceable. Relying on the New York Court of Appeal’s decision in Centro Empresarial Cempresa S.A. v. América Móvil, S.A.B. de C.V., the court reiterated that a party seeking to avoid a release must identify a fraud that is separate and distinct from the subject matter of the release itself. Because the plaintiffs’ allegations concerned the value of the ownership interest they had agreed to relinquish, rather than a separate fraud inducing execution of the release, their claims were barred as a matter of law. The court also rejected the plaintiffs’ contention that they were owed fiduciary duties as shareholders, holding that the language of the parties' Agreement and Mutual Release expressly acknowledged that no agreement had been reached regarding the terms under which the plaintiffs would hold ownership interest in the company. As a result, the plaintiffs were not shareholders when they executed the release, and no fiduciary duty arose. In so holding, the court confirmed that recital provisions in an agreement may properly be considered to determine the parties’ intent and the contract’s purpose when evaluating documentary evidence under CPLR 3211. Finally, the Third Department held that the plaintiffs failed to establish justifiable reliance, noting that they were sophisticated businesspersons represented by independent counsel, were aware that the company could be sold at any point in the future before signing the release, and nevertheless chose to proceed without seeking additional protections or conducting further inquiry. Under those circumstances, the plaintiffs assumed the business risk of entering into the settlement and could not later invalidate the release on the basis of alleged nondisclosure. The court likewise rejected the plaintiffs’ reliance on the “special facts” doctrine, concluding that the alleged information could not support rescission where the plaintiffs failed to exercise ordinary intelligence in protecting their interests. The decision reinforces New York’s strong public policy favoring the enforcement of negotiated releases and provides important guidance for businesses resolving ownership and investment disputes. It also underscores that sophisticated parties represented by counsel cannot later avoid broad settlement agreements absent allegations of a separate, independent fraud or reasonable reliance sufficient to invalidate the release.

In 2021, the New Jersey Supreme Court adopted the "ongoing storm rule" in Pareja v. Princeton International Properties, holding that commercial landowners have no duty to clear snow and ice until a reasonable time after a storm ends—unless "unusual circumstances" exist. Five years later, the Court has applied that exception for the first time in a published decision, and the result is more good news for commercial property owners. This case arose from a slip-and-fall at a Walmart parking lot in Union Township on January 3, 2015, during a storm of mixed snow, sleet, and rain that began around 11:30 a.m. At the time of the plaintiff's fall, roughly 1:30 p.m., there was only a "trace" to one-tenth of an inch of accumulation on the lot. Walmart's snow-removal contractor had spread salt on the lot from 12:35 to 1:15 p.m. but had not pretreated the surface before the storm began. A jury found Walmart negligent and awarded the plaintiff over $1.3 million, and the Appellate Division later ordered a new trial rather than dismissal.  On July 30, 2026, the Supreme Court reversed and directed judgment for Walmart. Under the "ongoing storm rule," a commercial landowner's duty to clear snow and ice arises within a reasonable time after a storm ends, not during the event. One of the exceptions to the ongoing storm rule, defined by the Court’s 2021 holding in Pareja v. Princeton Int’l, is where the landowner's conduct creates "unusual circumstances" that exacerbate the risk of injury. The Court in Gallardo held that ordinary, if imperfect, remediation efforts, such as salting a lot with only minimal accumulation, do not meet that "unusual circumstances" threshold, even when the plaintiff alleges that treatment made conditions worse. Commercial landowners are not obligated to clear snow or ice mid-storm, and undertaking reasonable, ordinary de-icing measures during a storm will not, by itself, create liability. Owners should document the timing of all remediation efforts and retain contractor service records, since the absence of "unusual circumstances" was central to the outcome in this decision.  This decision may further reduce exposure to ongoing-storm slip-and-fall claims against commercial insureds absent evidence the insured's actions were genuinely unusual or created a new hazard beyond the storm's natural effects. However, plaintiffs will likely continue to raise novel arguments regarding whether conduct exceeded ordinary snow-removal practice and how that can be subject to interpretation by different experts. 

Jonathan Meer (Partner-New York, NY) obtained a no probable cause determination from the New York State Division of Human Rights on behalf of an employer/respondent, resulting in the dismissal of claims alleging employment discrimination arising from the termination of an employee. The complainant, a former security guard at a residence serving individuals escaping domestic violence, alleged that her termination constituted race and national origin discrimination. The respondent maintained that the complainant was terminated after a serious security breach in which unauthorized individuals were permitted to enter the facility. The investigator on the matter noted that the record included video evidence from the date of the incident supporting the immediate termination of employment of both the complainant and another employee assigned to the front desk, and that similarly situated employees of different races and national origins had been terminated for comparable conduct at the respondent’s facilities. The Division concluded that the employer's stated reasons for the termination were supported by the record and were not a pretext for discrimination.

Q: What should an employer do when an employee needs a reasonable accommodation for a disability? A: Under the Americans with Disabilities Act (ADA), and in some instances under state and local laws, if an employee with a disability sufficiently requests an accommodation, the employer must engage in a good-faith, interactive process with the employee to identify if a reasonable accommodation exists. In practice, the interactive process is an ongoing, two-way dialogue rather than a single conversation. The employer typically asks the employee to clarify the nature of the limitation, may request reasonably necessary medical documentation supporting the need for accommodation, and should discuss and evaluate potential accommodation options with the employee, including why a particular option may or may not work. The employee, in turn, should respond to the employer’s questions, provide the requested medical information, and engage with proposed solutions rather than insisting on one preferred accommodation. This exchange often takes multiple rounds of communication and should continue until a reasonable accommodation is identified, or until the employer determines in good faith that none is available. Employers should document each step of this exchange contemporaneously, including the initial request, the information exchanged, the options discussed, and the reasons for accepting or rejecting each option, since this record is often decisive if the accommodation decision is later challenged. When Does the Duty to Engage Begin? As a practical matter, an employer should not wait for a formal or perfectly-worded request, though the legal trigger varies by jurisdiction. The Eleventh Circuit (Florida, Georgia, and Alabama), for example, requires the employee to make a specific demand for accommodation and provide enough information for the employer to understand how to address the limitation.1 In Owens v. Georgia, Governor's Office of Student Achievement, 52 F.4th 1327 (11th Cir. 2022),2 the court held that an employee who cited only childbirth-related complications, without more, and requested telework had not provided enough information to trigger the duty to engage. Other jurisdictions impose a lower burden. The Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) has held that the duty to engage is triggered merely by notice of the disability and a desire for3 accommodation—a more employee-protective standard. It has also held that if an employee is unable to request an accommodation but the employer knows of the disability, the employer must help initiate the process. Similarly, the requirements around the interactive process can be lenient depending on state and local requirements.  These cases set a floor, not a ceiling: they describe the minimum an employee must show before a court will find the duty to engage was legally triggered, not a safe harbor for delay. Given this jurisdictional variation and the fact-specific nature of the inquiry, employers seeking to protect against failure-to-accommodate claims should discuss potential accommodations whenever an employee requests one or raises a medical condition affecting their work—while remembering that engaging early does not obligate the employer to grant any particular accommodation. It simply starts the conversation and creates a record of good faith. What Accommodations Should an Employer Consider? Determining an appropriate accommodation is a case-by-case analysis, and multiple factors can be relevant, including the nature of the employee’s disability, the essential functions of the position, the operational needs of the business, and whether the underlying condition or needed accommodation is temporary or permanent. The ADA, at 42 U.S.C. § 12111(9), provides a non-exhaustive list of potential accommodations, including making facilities accessible, job restructuring, modified work schedules, reassignment to a vacant position, equipment modification, adjusted exams or training materials, and qualified readers or interpreters. The appropriate accommodation depends on the employee’s particular disability—for example, an employee with regular medical appointments might be accommodated with a modified schedule. Employers should evaluate each request individually and document the process. Limits on the Duty to Accommodate An employer need not remove essential job functions, nor must it provide an employee’s preferred accommodation if another available option allows the employee to perform those functions. While reassignment to a vacant position may be reasonable, the employer need not create a new position or reassign the employee to a role for which they are unqualified. Federal appellate courts are split on whether reassignment is mandatory: the Tenth Circuit, in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999), held that it is, while the Fourth,4 Fifth,5 Eighth,6 and Eleventh Circuits7 have held that employers need only let the employee compete for the vacancy. Employers should confirm the applicable circuit’s standard before handling a reassignment request.  An employer also need not provide an accommodation that would create an undue hardship—a high standard requiring proof of significant difficulty or expense. The burden of proving undue hardship rests on the employer, not the employee: it is not enough to assert that an accommodation is inconvenient or costly; the employer must show, with specific evidence, the actual cost, its financial resources and size, and the impact on operations.  Practical Tips for Employers Employers should keep several practical points in mind.  1. A sound approach to protecting against claims is to discuss potential accommodations whenever an employee requests one or raises a medical condition needing a workplace adjustment. The legal floor for when the duty is actually triggered varies by jurisdiction and can be higher than this practical approach, so acting sooner helps guard against uncertainty. 2. Remember the process is a two-way obligation: employers should not wait passively for the employee to identify the perfect accommodation, and employees should not expect the employer to solve the problem unassisted. The employer should ask the employee to clarify the limitation, request necessary medical documentation, and discuss accommodation options; the employee should respond, provide the requested information, and engage with proposed solutions rather than insist on one preferred option. Both sides should share information and discuss options collaboratively and in good faith, often over multiple rounds, until a reasonable accommodation is identified or the employer determines in good faith that none exists. 3. Document each step of the process, including the initial request, information exchanged, options considered, and the reasoning behind any accommodation granted or denied, since this record can be critical if the decision is later challenged.  4. Approach the interactive process as an obligation to share information and discuss accommodations in good faith. An employer that genuinely engages is more likely to find a workable solution and avoid litigation that a defensive, box-checking approach often invites. Employers with questions about the ADA and the interactive process should consult an attorney. Employers have mandated duties under the ADA and comparable state and local laws, and failing to satisfy them can expose employers to significant liability, including claims for discrimination, failure to accommodate, and retaliation. Given these obligations and the fact-specific nature of the interactive process, it is always good practice to consult with employment counsel before making a final accommodation decision. ______________________________________________________________________________________________ 1 Frazier-White v. Gee, 818 F.3d 1249 (11th Cir. 2016). 2 Owens addressed the Rehabilitation Act, but it applies equally to the Americans with Disabilities Act. 3 Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), r’vd on other grounds 535 U.S. 391 (2002). 4 Elledge v. Lowe’s Home Ctrs., 979 F.3d 1004 (4th Cir. 2020). 5 Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) 6 Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007). 7 EEOC v. St. Joseph's Hosp., Inc., 842 F.3d 1333 (11th Cir. 2016).

Valerie Kellner (Of Counsel-Philadelphia, PA) was reelected as a Senior Director for the Federation of Defense and Corporate Counsel (FDCC) at the 2026 Annual Meeting. She currently serves on the Board of Directors and the Executive Committee. The FDCC is an invitation-only organization of lawyers who focus their practice on the defense of civil claims and representation of insurers and corporations. 

Joshua Bachrach (Partner–Philadelphia, PA) will speak on August 12 at the Reinsurance Group of America (RGA) Fraud Conference. Josh will join other world-class fraud experts in exploring how AI is reshaping insurance fraud – from synthetic identities and deepfake claims to AI-generated documentation that outpaces traditional detection.

​Jonathan Meer (Partner-New York, NY) was quoted in the July 30, 2026, installment of Law360 as part of an article titled “United’s CrowdStrike Fight Promises Cyber Coverage Insights.” Jonathan distinguishes between primary and excess insurers and notes that the latter are “free to make differing assessments of liability and coverage, including from other excess insurers.”  He continues, “The question becomes, ‘What is their good faith assessment of the coverage evaluation?’ and reasonable minds can differ.”