Julia Audibert

Michael Lowry (Partner-Las Vegas, NV) has been appointed to DRI's State and Local Defense Organizations (SLDO) Relationship Committee, effective at the conclusion of DRI’s Annual Meeting in October 2026. The Committee works to foster and strengthen connections between DRI's state and local defense organizations, like Las Vegas Defense Lawyers, and DRI's substantive law committees. The goal is to benefit both through these relationships, which connect subject matter experts in ways that promote knowledge-sharing, professional development, and the advancement of defense lawyers’ practices and skills. Michael presently serves as DRI's State Representative for Nevada.

Kirsten Curtis (Partner-Portland, OR) will present “Ashes to Evidence: Leveraging Cell Tech in Arson EUOs” at the International Association of Special Investigation Units (IASIU) Annual Conference, held in Orlando, Florida, September 20-23, 2026. The presentation includes a case study of a Washington claim in which a strong SIU investigation, statements and examinations under oath (EUOs), and cell phone forensic analysis came together to uncover insurance fraud. Kirsten and fellow presenters survey all three components, discussing what worked and what didn't, and how the moving parts of a great investigation work together, including key investigation techniques, preservation letters, conducting EUOs, and using cell technology in EUOs. Wilson Elser is a sponsor of the 2026 annual conference.

I have been writing about the insurance risks of intoxicating hemp products since 2021, when delta-8 THC gummies first started showing up in convenience stores and gas stations across the country. Back then, our message to the cannabis, hemp, and insurance industries was simple. These products violate the spirit, if not the actual letter, of the 2018 Farm Bill, and the cannabis and hemp industries and their insurers should be wary of a government response. Well, a response from Congress took more than five years, but the response has teeth. The Federal Ban Congress rewrote the federal definition of hemp in legislation passed in late 2025. The changes were originally set to take effect on November 12, 2026, and they are sweeping. Congress has since approved a delay of most provisions to December 11, 2026, but synthetic and lab-converted cannabinoids like delta-8 and HHC remain excluded regardless of dose and subject to the November 12 ban as scheduled. The new law imposes a “total THC” standard that counts all forms of THC, not just delta-9, and caps finished hemp products at just 0.4 milligrams of total THC per container. Industry estimates suggest roughly 95 percent of hemp-derived cannabinoid products currently sold will become federally unlawful under the new definition. Products that exceed these limits will be classified as marijuana under the Controlled Substances Act. The Hemp Industry Fights Back The hemp industry is not going quietly. Both litigation and legislative efforts are underway to prevent the ban from taking effect, and Texas has become ground zero for the courtroom fight. In early August 2026, hemp industry groups sued the Texas Department of State Health Services in federal court after the agency reclassified delta-8 and other hemp-derived THC compounds as Schedule I controlled substances. The plaintiffs argue that the state's ban is preempted by the 2018 Farm Bill, violates due process, and imposes an unconstitutional burden on interstate commerce. They sought a temporary restraining order to halt enforcement. A federal judge, however, declined to block the ban, finding the industry challengers unlikely to prevail on their constitutional claims. A separate state-court challenge is pending before a Travis County judge over related smokable hemp rules, and additional lawsuits have been filed alleging the ban has created a monopoly for the state's medical marijuana program. Similar battles are playing out in Missouri, where the hemp industry is challenging that state's intoxicating hemp ban as unconstitutional. On the legislative front, several bills are moving through Congress aimed at softening or delaying the ban. The most notable is the Hemp Planting Predictability Act, a bipartisan effort to push the effective date back by two years to November 2028, giving the industry and regulators time to develop a workable framework. Other proposals seek to carve out non-intoxicating CBD products or raise the 0.4 mg cap to a more commercially viable threshold. There is real momentum behind some of these efforts, and even the White House has signaled support for protecting non-intoxicating hemp products from the ban’s overreach. The most concrete development happened on August 8, 2026, when the U.S. Senate passed H.R. 6500 by a 90-6 vote, with a provision that would delay the ban on naturally derived hemp THC products from November 12 to December 11, 2026. On September 1, 2026, the U.S. House of Representatives gave the bill final congressional approval by a bipartisan 370-48 vote, sending it to President Trump’s desk. The delay provision was based on the bipartisan Hemp Planting Predictability Act, introduced by Senators Amy Klobuchar (D-MN), Rand Paul (R-KY), and Jeff Merkley (D-OR). Synthetic cannabinoids continue to face an immediate November 12 ban, while naturally derived hemp THC products get a one-month reprieve to December 11. That delay is modest and does not change the underlying law. The President’s signature is expected but remains pending. We expect more lawsuits and more bills. We also expect most of the litigation to fail. The constitutional arguments are creative, but Congress has broad authority under the Commerce Clause to define what qualifies as a controlled substance, and the new definition is clear about its intent. The 2018 Farm Bill’s derivatives loophole, which facilitates products containing delta-8, delta-10, THC-O, THCA flower, and even delta-9 THC extracted from hemp, was never intended by Congress. It took Congress more than five years to close the loophole, but it has now acted. Courts are generally reluctant to second-guess that kind of legislative correction.  The industry’s longer-term legislative goals remain uncertain, including the standalone Hemp Planting Predictability Act (H.R. 7024), which would push the date back by three years. Whether Congress can enact a more comprehensive regulatory framework before December 11 is far from assured.  Companies and Insurers Must Act Now Our advice is don’t wait. Congress has provided a brief reprieve, but hemp companies and the insurers that cover them should be preparing now for December 11, not hoping that a federal judge or another last-minute act of Congress will ride to the rescue. A one-month delay is not a solution. Waiting is the worst possible risk management strategy. The practical fallout from this ban will be felt across nearly every coverage line. Start with product liability and property. When the ban takes effect, inventory that was perfectly legal yesterday becomes a controlled substance today. Product liability policies that were written to cover hemp-derived products may suddenly be covering the sale or distribution of federally illegal marijuana. That raises immediate coverage questions. Does the policy contain an illegal acts exclusion? Is there a controlled substance exclusion? If the insured continues to sell these products after December 11, what happens to the coverage? Underwriters need to be reviewing policy language now and deciding how to address this. Cargo and stock-throughput programs are directly implicated as well. Wholesalers, distributors, and brands that straddle the marijuana and hemp product categories should expect complications in coverage terms, exclusions, and transit insurance for inventory that may be reclassified mid-shipment. If a product leaves a warehouse as legal hemp and arrives at its destination as federally illegal marijuana, who bears the risk? These are not hypothetical questions. They must be answered by December 11. Beyond the insurance policy itself, the collateral risks are diverse. Companies with existing leases may face landlord disputes if the premises are being used to store or sell newly illegal products. Contracts with suppliers and customers must be revisited to understand how risk and loss are apportioned. E-commerce platforms may delist products, cutting off revenue streams overnight. Existing product liability claims related to hemp products may take on a different complexion when the underlying product becomes illegal. Loans secured by hemp inventory could go into default. Investors who backed hemp companies expecting continued legality may pursue claims against management. All this increased uncertainty will likely result in more claims and litigation, which may trigger a policy response. One important nuance to understand is that some states have laws that expressly permit the sale of hemp-derived THC products, and those laws don't automatically disappear because the federal definition has changed. Where a state continues to allow legal hemp product sales, we recommend that insurers and operators treat those situations similarly to the regulated intrastate marijuana model that has been operating successfully for years. The risk management playbook is similar—know your customer, know your state’s regulations, and maintain compliance. There is also a tax dimension that companies cannot afford to ignore. If a hemp company continues selling products that are now federally classified as marijuana, it should expect Section 280E of the Internal Revenue Code to apply. That means most ordinary business deductions vanish, effective tax rates skyrocket, and the economics of the business fundamentally change. The regulated cannabis industry has been living with 280E for years, and it is brutal. Hemp companies that are new to this reality should get tax counsel involved immediately. The intoxicating hemp market was always on borrowed time. We said as much when delta-9 THC gummies started being sold as “legal hemp” out of convenience stores while regulated cannabis operators next door were paying through the nose for compliance. That imbalance was unsustainable. Now the correction is here. The smart move for hemp operators is to diversify, pivot to compliant products or, where state law permits, participate in the regulated cannabis market. For insurers, it’s time to audit your book, update your forms, and make sure you know exactly what you’re covering when December 11 arrives. This article was published in the September 7, 2026, posting of Insurance Journal.

Introduction  Nearly 100 years ago, the U.S. Supreme Court issued its decision in Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303 (1927), limiting the recovery of purely economic damages in maritime tort cases. The implications of what became known as the Robins Dry Dock rule, however, are still felt to this day. Recently, in a 75-page memorandum, Judge James K. Bredar of the U.S. District Court for the District of Maryland issued a decision dismissing and narrowing several claims for purely economic losses arising out of the Baltimore Bridge collapse incident. As highlighted by the court, “the time has come to face the implications of Robins and the near century of case law that has interpreted and applied it.”1The decision highlights the strength and precedential value of the Robins Dry Dock rule. Background and Procedural Posture  Following the tragic incident involving the M/V DALI and Baltimore’s Francis Scott Key Bridge on March 26, 2024, the owner and manager of the DALI (the Petitioners) filed a petition in limitation in the U.S. District Court for the District of Maryland invoking the Shipowners' Limitation of Liability Act and seeking to limit their liability exposure to the value of the vessel and its pending freight.2 More than 50 claims were filed, including claims from federal and state governments, local government entities, and numerous other private parties seeking to recover damages for wrongful death and personal injury, property damage and cargo losses, and economic losses. The case was originally scheduled for a bench trial on June 1, 2026. Two weeks before trial, however, Petitioners moved to stay the proceedings based on newly pending criminal charges: an 18-count indictment against one of the Petitioners and its employee for various crimes related to the allision (a maritime term for a moving vessel striking a stationary object).3 The Court denied the stay and ordered that the case “stay the course.” As the matter approached the trial date, several parties settled the vast majority of claims. But two categories of claims remained: those filed by the City and County of Baltimore (the Local Government Claimants) and those filed by Private Economic Loss (PEL) Claimants. Petitioners asserted that the Robins Dry Dock rule barred recovery as a matter of law on all remaining claims, potentially obviating the need for a trial. Specifically, Petitioners moved to dismiss all pending and remaining claims from the Local Government Claimants and Private Economic Loss Claimants, arguing that the remaining Claimants “did not have an ownership interest in the Key Bridge and have failed to allege or identify a recognizable interest in any other property which purportedly sustained physical damage as a result of the allision.”4 In response, the remaining Claimants opposed Petitioners’ motion and argued, among other things, that: (1) they do have a proprietary interest in the Key Bridge and/or other property which sustained physical damage from the allision, and (2) even if the Robins Dry Dock rule applied, “well-established exceptions” also apply and would permit their claims to survive. Thus, the Court had to decide whether the Robins Dry Dock rule would dismiss or narrow the remaining and surviving claims. What is the Robins Dry Dock Rule? The Robins Dry Dock rule takes its name from a 1927 Supreme Court decision that, as the Court noted, applied “a principle, then settled in both the United States and in England, which refused recovery for negligent interference with contractual rights.”5 The facts of that case were unremarkable: while repairing a vessel, Robins Dry Dock negligently damaged one of its propellers, rendering the vessel unusable for two weeks longer than anticipated. The ship's owners could sue for the negligent damage. The charterer, however, who suffered no injury to himself or his property, could not recover lost profits caused by the delay. In the century since, courts have relied on the Robins Dry Dock decision to deny the recovery of purely economic damages in maritime tort cases. Under the Robins Dry Dock rule, a plaintiff in a maritime tort suit may not recover “for economic loss if that loss resulted from physical damage to property in which [plaintiff] had no proprietary interest (i.e., no ownership or ownership-equivalent stake).”6 In general terms, a party may not recover economic damages in the absence of a showing that the party sustained physical injury to its property or property in which it has a proprietary interest as a result of the maritime incident. The purpose of the rule is “to serve as a pragmatic limitation on the doctrine of foreseeability, giving judges an easily administrable rule of decision and allowing parties to order their affairs in view of predictable outcomes.”7 As noted by the Court in this case, a contrary rule “would open the door to virtually limitless suits, often of a highly speculative and remote nature” and “would expose the negligent defendant to a severe penalty.”8 Thus, the rule has “the virtue of predictability” even if it sometimes “denies recovery for foreseeable injury caused by negligent acts.”9  Are There Any Exceptions? To overcome the Robins Dry Dock hurdle, parties who may have sustained economic damages from a maritime incident must show either that they also have sustained physical injury to their property or that an exception applies and allows for recovery. The Court's decision identified some exceptions that may overcome the hurdles and harsh consequences of the Robins Dry Dock rule. Also, there are more exceptions suggested by other courts throughout the U.S., although they are narrowly applied. Proprietary Interest in the Physically Injured Property is Key A party may overcome the Robins Dry Dock hurdle if it can show a proprietary interest in the physically injured property. Importantly, and as highlighted by the Fifth Circuit, ownership is not an absolute requirement in determining proprietary interest.10 A party may have sufficient “proprietary interest” to recover economic damages if the party is the actual owner of the physically damaged property or one who is tantamount to an owner. For example, a party who has: (a) actual possession or control, (b) responsibility for repairs, and (c) responsibility for maintenance for the physically injured property is one tantamount to an owner and may recover for economic losses.11 The Commercial Fisherman or Special Situation Exception The Court noted the “commercial fisherman exception,” which is dependent upon a very special and narrow situation. Specifically, the Court noted that the Fourth Circuit has permitted commercial fishermen to recover lost profits following the loss of a ship in which they had no ownership interest, due to their “special situation” of being in “a kind of joint venture” with the owner, because their losses were “as foreseeable and direct a consequence of the tortfeasor's actions as the shipowner's.”12 The Contractual Loss-Shifting Exception The Court also noted a potential exception when a contract has transferred the risk of economic loss from a property owner to a third party, which may allow the third party to recover despite the Robins Dry Dock rule.13 The Court highlighted a decision from the Fourth Circuit which permitted a time charterer to recover purely economic losses because the charter contract “transferred the risk of loss of use from the owner to the time charterer” and the time charterer had “a possessory interest in the vessel sufficient to give it standing to claim [economic] damages.”14 The Intentional Acts Exception The Court noted that the remaining Claimants attempted to advance an “intentional acts exception” because of Petitioners’ criminal misconduct. Specifically, Claimants argued that the Robins Dry Dock rule does not apply “because [their] damages were caused by Petitioners’ intentional acts.”15 As noted by the Court, this is a very narrow exception that does not cover intentional conduct generally but only situations where a wrongdoer intentionally targeted a plaintiff's economic interests, such as intentional interference with contract or intentionally caused nuisance.16 The Court rejected the intentional acts exception raised by the Claimants, finding that even if Petitioners engaged in criminal misconduct, they did not intend to cause harm to any claimant’s specific economic interests.17 The Integrated Unit Exception Although not expressly discussed by the Court, the Fifth Circuit has articulated and applied an integrated unit exception to the Robins Dry Dock rule. Under this exception, a party who is not the owner or tantamount to an owner of the physically impacted property may, nonetheless, recover economic damages if the physically affected asset is attached to the party’s asset and they both operate as an integrated unit.18  Application of the Robins Dry Dock Rule to This Case With these principles in mind, the Court turned to the remaining individual claims. The results reinforced the precedential force and implications of the Robins Dry Dock rule.  The Claims from City of Baltimore The City's claim only survived in one narrow aspect: it may continue to pursue damages associated with the harm to the 72-inch pre-cast concrete water main that runs beneath the Patapsco River at the location of the bridge. The City alleged that the combination of the DALI's evasive maneuvers and the collapse of the bridge physically damaged this City-owned infrastructure, and the Court could not conclude as a matter of law that this claim would fail. However, the remainder of the City's claimed damages, which were purely economic in nature, including lost tax revenue, increased road maintenance costs, and other downstream economic harms, were dismissed. The City's argument that it held a “proprietary interest” in the Key Bridge itself, because the bridge was a “functional component” of its municipal transportation network, was rejected by the Court. Likewise, damages to the City's streets and other bridges, caused by diverted heavy traffic, were also deemed too remote and attenuated. The Claims from Baltimore County The County's claim likewise survived only in part. It may proceed only on damages to those waterways and shorelines in which it can establish ownership. The collapse sent tons of debris into surrounding waters, and the County plausibly alleged physical damage to its shorelines, surface waters, and sediments. But the County's response costs, search-and-rescue expenses, lost tax revenue, and other economic damages were dismissed. The Claims from the Private Economic Loss Claimants The PEL Claimants, which were businesses ranging from shipping companies and longshoremen to sugar refiners and construction firms, saw their claims dismissed almost entirely as they could not show physical injury to their property. The sole exception: four “Container Claimant” parties who alleged they had cargo aboard the DALI that was physically damaged in the allision were permitted to proceed, because physical damage to one's own property is precisely the kind of injury that Robins Dry Dock rule does not bar. Key Takeaways  1. The Robins Dry Dock rule remains a big hurdle. Nearly a century after the Supreme Court issued the decision, the rule continues to operate as a near-absolute bar to recovery of economic damages for claimants who lack a proprietary interest in the damaged property. The Baltimore Bridge decision confirms and highlights that even catastrophic, highly publicized incidents with clearly devastating economic consequences do not affect the rule's application and implications. 2. The exceptions are narrowly applied. Although certain exceptions have been recognized by courts in the U.S., these exceptions are narrow and are only applied in very specific circumstances. As exemplified by the Court, none of the exceptions raised by the remaining Claimants prevented the harsh consequences of the Robins Dry Dock rule.  3. Proprietary interest in the physically injured property is key. The dividing line between claims that survived and claims that were dismissed is whether the claimant could establish a proprietary interest in property that was directly and physically damaged by the tortfeasor’s conduct. Thus, it is important to properly investigate a claim and develop the record following an incident to properly plead and show physical injury. _______________________________________________________________________________________ 1 In re Petition of Grace Ocean Private Ltd., Civ. No. 24-0941-JKB, Memorandum (D. Md. Aug. 25, 2026) (R. Doc. 906 at 4). 2 46 U.S.C. §§ 30501–30. This special maritime procedure is known as a limitation proceeding, which is a legal proceeding that consolidates all related claims into a single court. 3 On April 8, 2026, a grand jury returned an 18-count indictment charging the Owner and Captain with various crimes. See R. Doc. 906 at 5.  4 Petitioners sought to dismiss the remaining claims based on the standard of Rule 12 of the Federal Rules of Civil Procedure (motion to dismiss) or, in the alternative, to covert the motion and apply the standard of Rule 56 (summary judgment). See R. Doc. 906 at 7-8. 5 R. Doc. 906 at 11 (citing Robins Dry Dock, 275 U.S. at 307-10; State of La. ex rel. Guste v. M/V TESTBANK, 752 F.2d 1019 (5th Cir. 1985)). 6 Robins Dry Dock, 275 U.S. at 303; TESTBANK, 752 F.2d at 1022.  7 Plains Pipeline, L.P. v. Great Lakes Dredge & Dock Co., 620 F. App’x 281, 286 (5th Cir. 2015) (citing TESTBANK, 752 F.2d at 1022, 1028-30)). 8 R. Doc. 906 at 12 (citing General Foods Corp. v. United States, 448 F. Supp. 111, 112-13 (D. Md. 1978)). 9 TESTBANK, 752 F.2d at 1028–29. 10 See Plains Pipeline, 620 F. App’x at 285 (citing In re Deepwater Horizon, 784 F.3d 1019, 1026 (5th Cir. 2015)). 11 See Tex. E. Transmission Corp. v. McMoran Offshore Expl. Co., 877 F.2d 1214, 1226 (5th Cir. 1989) (citing Louisville & N. R. Co. v. M/V BAYOU LACOMBE, 597 F.2d 469 (5th Cir. 1979)); Mardi Gras World, LLC v. Marquette Transp. Co., 416 F. Supp. 3d 596, 602 (E.D. La. 2019). 12 Yarmouth Sea Prods. Ltd. v. Scully, 131 F.3d 389, 398 (4th Cir. 1997); see also Adams v. Star Enter., 51 F.3d 417, 424–25 (4th Cir. 1995). 13 Venore Transp. Co. v. M/V STRUMA, 583 F.2d 708, 711 (4th Cir. 1978); see Amoco Transp. Co. v. S/S MASON LYKES, 768 F.2d 659, 668 (5th Cir. 1985). 14 R. Doc. 906 at 13 (citing Venore, 583 F.2d at 711). 15 R. Doc. 906 at 36. 16 See, e.g., Kaiser Aluminum & Chem. Corp. v. Marshland Dredging Co., 455 F.2d 957, 958 (5th Cir. 1972); Dick Meyers Towing Serv., Inc. v. United States, 577 F.2d 1023, 1025 (5th Cir. 1978). 17 R. Doc. 906 at 3 (citing Nautilus Marine, Inc. v. Niemela, 170 F.3d 1195, 1197 (9th Cir. 1999)). 18 See Domar Ocean Transp., Ltd., Div. of Lee-Vac, Ltd. v. M/V ANDREW MARTIN, 754 F.2d 616 (5th Cir. 1985).

Q: Under federal statutes, can an employer round employees’ time up or down when they clock in?  A: Yes, but not in a manner where the employees are not fully compensated for all the time they work.  Some employers track employee hours in 5-, 10-, or 15-minute increments, and the Fair Labor Standards Act (FLSA) allows an employer to round employee time to the nearest quarter hour. The FLSA recognizes that it can be impractical to count time down to the minute. An employer, however, can violate FLSA if the employee is not fully compensated for the time they work or if the employer always rounds down. Thus, if an employer rounds down, it must also round up. Of course, if there is a situation where it is practical to count time down to the minute, such as with digital time tracking, then counting each minute eliminates risk from a FLSA rounding claim.  In the scenario where an employer must round, there are some safer ways to do it, such as:  Rounding in favor of the employee, despite being more expensive for the employer. This eliminates risk because it will always favor the employee. Using the start/stop method. The employer can round down when the employee clocks in and round up when the employee clocks out, or vice versa. As an example, an employee who clocks in at 8:56 AM for a 9:00 AM shift would not be paid for those four minutes. Likewise, an employee who clocks out early at 4:56 PM for a shift ending at 5:00 PM would still be paid for those unworked four minutes. Some employers, however, have been found liable for undercompensating employees1 when this facially neutral policy is not applied neutrally. Setting the time clock to pay in 5-, 10-, or 15-minute increments. As an example, if the employer sets the clock to pay in 10-minute intervals and the employee clocks in at 9:05 AM, then the employer would round down to 9:00 AM. If the employee clocks in at 9:06 AM, then the employer would round up to 9:10 AM.  Regardless of the rounding method chosen, the employer has an obligation to audit their payroll practices to make sure the implementation of the rounding procedure is neutral or favors the employee. The employer cannot rely on a facially neutral policy as a defense if employees are routinely undercompensated. Employers should also clearly identify their rounding policy in the handbook so employees are aware of it.   If the employer has knowledge of its employees working, it must pay them accordingly. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employees' fixed or regular working time or practically ascertainable period of time the employee is regularly required to spend on duties assigned to them. Rounding is only permitted when there are uncertain or indefinite periods of time of a few seconds or minutes duration.2 Employers who do not properly round are subject to FLSA claims and state law claims for underpaid wages.  This article only covers federal statutes, and employers should also check state and local legislation as well comply with any differences with federal law. Each employer has different needs. If you are an employer with questions about how to pay employees or applicable state and federal employment laws, please reach out to an experienced Wilson Elser employment attorney. ________________________________________________________________________________________ 1 Houston v. Saint Luke's Health Sys., 76 F.4th 1145, 1151 (8th Cir. 2023). 2 29 CFR 785.47. 

Joshua Bachrach (Partner-Philadelphia, PA) and Angela Heim (Of Counsel-Philadelphia, PA) obtained dismissal of all claims against the firm’s disability carrier client in the U.S. District Court for the Northern District of California. The plaintiff stopped working after developing acute autoimmune hepatitis, which caused severe abdominal pain and fatigue. She subsequently submitted a claim under her employer’s long-term disability plan, insured by our client. Although the plaintiff’s claim was approved, benefits ended a few years later after her condition stabilized. She argued that she remained disabled by fatigue caused by her medical condition and treatment medications. The court noted that the doctor on whom the plaintiff relied identified symptoms not documented in his contemporaneous office notes. The treating doctor also refused to discuss plaintiff’s condition with a peer-review doctor retained by our client. The court explained that our client was not required to accept the plaintiff’s reported complaints “at face value.” After conducting a de novo review of the evidence, the court concluded that the plaintiff failed to carry her burden of proving that her illness prevented her from working at the time the benefits ended.

Denise M. Motta (Of Counsel-Louisville, KY) will be a panelist at this year’s ABA TIPS ADR Summit, where she will offer insights on developing a mediation practice. Denise will draw on her experience as a mediator and advocate, having successfully mediated high-stakes cases across the country throughout her career. 

Convergence is a one-day, in-person conference for professionals at the intersection of privacy, cybersecurity, and AI governance. Hosted by Wilson Elser in partnership with Ankura and PrivadoAI, the event brings together general counsel, privacy leaders, cybersecurity and risk professionals, the insurance and carrier community, and outside counsel for practical discussions and industry networking. As agentic AI advances and regulatory expectations evolve, privacy, security, and governance can no longer be addressed in isolation. Convergence explores this convergence through four focused sessions, followed by a closing reception designed to continue the conversation.

Super Lawyers® has named four attorneys from Wilson Elser’s Houston office to the 2026 Texas Super Lawyers® and Rising Stars™ lists: Super Lawyers Kent M. Adams (Senior Counsel) Personal Injury General: Defense Linda P. Wills (Partner) Employment & Labor Rising Stars Lina Al-Salim (Of Counsel) Personal Injury Medical Malpractice: Plaintiff Kelsi Wade Piatkowski (Partner) Personal Injury General: Defense Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The Rising Stars lists, comprising the best attorneys who are 40 years of age and younger or who have practiced law for 10 years or less, are published nationwide in Super Lawyers magazines and in leading city and regional magazines across the country. No more than 2.5 percent of the lawyers in the state are named to these lists.

Colt Dodrill (Partner-Phoenix, AZ) forced a voluntary dismissal of a car share lawsuit in Nevada’s Eighth Judicial District Court, on behalf of the firm’s client, a car owner. The plaintiff sued our client, who hosted his car on a non-party’s car-sharing platform, for negligently entrusting the vehicle to the at-fault driver. Colt moved to dismiss, arguing that the alleged at-fault driver was not on the reservation and that the law does not impute upon the client the successive entrustment from the authorized driver. The plaintiff opposed, insisting on the right to plead in the alternative and citing different allegations claiming the client had authorized the at-fault driver. Colt argued that the plaintiff may plead in the alternative only when legitimately in doubt as to the true facts, but letters to Plaintiff’s prior counsel confirmed the at-fault driver was not authorized. Five minutes after Wilson Elser’s reply was e-filed, the plaintiff agreed to voluntarily dismiss our client and vacate the motion hearing. 

I have been writing about the insurance risks of intoxicating hemp products since 2021, when delta-8 THC gummies first started showing up in convenience stores and gas stations across the country. Back then, our message to the cannabis, hemp, and insurance industries was simple. These products violate the spirit, if not the actual letter, of the 2018 Farm Bill, and the cannabis and hemp industries and their insurers should be wary of a government response. Well, a response from Congress took more than five years, but the response has teeth. The Federal Ban Congress rewrote the federal definition of hemp in legislation passed in late 2025. The changes were originally set to take effect on November 12, 2026, and they are sweeping. Congress has since approved a delay of most provisions to December 11, 2026, but synthetic and lab-converted cannabinoids like delta-8 and HHC remain excluded regardless of dose and subject to the November 12 ban as scheduled. The new law imposes a “total THC” standard that counts all forms of THC, not just delta-9, and caps finished hemp products at just 0.4 milligrams of total THC per container. Industry estimates suggest roughly 95 percent of hemp-derived cannabinoid products currently sold will become federally unlawful under the new definition. Products that exceed these limits will be classified as marijuana under the Controlled Substances Act. The Hemp Industry Fights Back The hemp industry is not going quietly. Both litigation and legislative efforts are underway to prevent the ban from taking effect, and Texas has become ground zero for the courtroom fight. In early August 2026, hemp industry groups sued the Texas Department of State Health Services in federal court after the agency reclassified delta-8 and other hemp-derived THC compounds as Schedule I controlled substances. The plaintiffs argue that the state's ban is preempted by the 2018 Farm Bill, violates due process, and imposes an unconstitutional burden on interstate commerce. They sought a temporary restraining order to halt enforcement. A federal judge, however, declined to block the ban, finding the industry challengers unlikely to prevail on their constitutional claims. A separate state-court challenge is pending before a Travis County judge over related smokable hemp rules, and additional lawsuits have been filed alleging the ban has created a monopoly for the state's medical marijuana program. Similar battles are playing out in Missouri, where the hemp industry is challenging that state's intoxicating hemp ban as unconstitutional. On the legislative front, several bills are moving through Congress aimed at softening or delaying the ban. The most notable is the Hemp Planting Predictability Act, a bipartisan effort to push the effective date back by two years to November 2028, giving the industry and regulators time to develop a workable framework. Other proposals seek to carve out non-intoxicating CBD products or raise the 0.4 mg cap to a more commercially viable threshold. There is real momentum behind some of these efforts, and even the White House has signaled support for protecting non-intoxicating hemp products from the ban’s overreach. The most concrete development happened on August 8, 2026, when the U.S. Senate passed H.R. 6500 by a 90-6 vote, with a provision that would delay the ban on naturally derived hemp THC products from November 12 to December 11, 2026. On September 1, 2026, the U.S. House of Representatives gave the bill final congressional approval by a bipartisan 370-48 vote, sending it to President Trump’s desk. The delay provision was based on the bipartisan Hemp Planting Predictability Act, introduced by Senators Amy Klobuchar (D-MN), Rand Paul (R-KY), and Jeff Merkley (D-OR). Synthetic cannabinoids continue to face an immediate November 12 ban, while naturally derived hemp THC products get a one-month reprieve to December 11. That delay is modest and does not change the underlying law. The President’s signature is expected but remains pending. We expect more lawsuits and more bills. We also expect most of the litigation to fail. The constitutional arguments are creative, but Congress has broad authority under the Commerce Clause to define what qualifies as a controlled substance, and the new definition is clear about its intent. The 2018 Farm Bill’s derivatives loophole, which facilitates products containing delta-8, delta-10, THC-O, THCA flower, and even delta-9 THC extracted from hemp, was never intended by Congress. It took Congress more than five years to close the loophole, but it has now acted. Courts are generally reluctant to second-guess that kind of legislative correction.  The industry’s longer-term legislative goals remain uncertain, including the standalone Hemp Planting Predictability Act (H.R. 7024), which would push the date back by three years. Whether Congress can enact a more comprehensive regulatory framework before December 11 is far from assured.  Companies and Insurers Must Act Now Our advice is don’t wait. Congress has provided a brief reprieve, but hemp companies and the insurers that cover them should be preparing now for December 11, not hoping that a federal judge or another last-minute act of Congress will ride to the rescue. A one-month delay is not a solution. Waiting is the worst possible risk management strategy. The practical fallout from this ban will be felt across nearly every coverage line. Start with product liability and property. When the ban takes effect, inventory that was perfectly legal yesterday becomes a controlled substance today. Product liability policies that were written to cover hemp-derived products may suddenly be covering the sale or distribution of federally illegal marijuana. That raises immediate coverage questions. Does the policy contain an illegal acts exclusion? Is there a controlled substance exclusion? If the insured continues to sell these products after December 11, what happens to the coverage? Underwriters need to be reviewing policy language now and deciding how to address this. Cargo and stock-throughput programs are directly implicated as well. Wholesalers, distributors, and brands that straddle the marijuana and hemp product categories should expect complications in coverage terms, exclusions, and transit insurance for inventory that may be reclassified mid-shipment. If a product leaves a warehouse as legal hemp and arrives at its destination as federally illegal marijuana, who bears the risk? These are not hypothetical questions. They must be answered by December 11. Beyond the insurance policy itself, the collateral risks are diverse. Companies with existing leases may face landlord disputes if the premises are being used to store or sell newly illegal products. Contracts with suppliers and customers must be revisited to understand how risk and loss are apportioned. E-commerce platforms may delist products, cutting off revenue streams overnight. Existing product liability claims related to hemp products may take on a different complexion when the underlying product becomes illegal. Loans secured by hemp inventory could go into default. Investors who backed hemp companies expecting continued legality may pursue claims against management. All this increased uncertainty will likely result in more claims and litigation, which may trigger a policy response. One important nuance to understand is that some states have laws that expressly permit the sale of hemp-derived THC products, and those laws don't automatically disappear because the federal definition has changed. Where a state continues to allow legal hemp product sales, we recommend that insurers and operators treat those situations similarly to the regulated intrastate marijuana model that has been operating successfully for years. The risk management playbook is similar—know your customer, know your state’s regulations, and maintain compliance. There is also a tax dimension that companies cannot afford to ignore. If a hemp company continues selling products that are now federally classified as marijuana, it should expect Section 280E of the Internal Revenue Code to apply. That means most ordinary business deductions vanish, effective tax rates skyrocket, and the economics of the business fundamentally change. The regulated cannabis industry has been living with 280E for years, and it is brutal. Hemp companies that are new to this reality should get tax counsel involved immediately. The intoxicating hemp market was always on borrowed time. We said as much when delta-9 THC gummies started being sold as “legal hemp” out of convenience stores while regulated cannabis operators next door were paying through the nose for compliance. That imbalance was unsustainable. Now the correction is here. The smart move for hemp operators is to diversify, pivot to compliant products or, where state law permits, participate in the regulated cannabis market. For insurers, it’s time to audit your book, update your forms, and make sure you know exactly what you’re covering when December 11 arrives. This article was published in the September 7, 2026, posting of Insurance Journal.

Kirsten Curtis (Partner-Portland, OR) will present “Ashes to Evidence: Leveraging Cell Tech in Arson EUOs” at the International Association of Special Investigation Units (IASIU) Annual Conference, held in Orlando, Florida, September 20-23, 2026. The presentation includes a case study of a Washington claim in which a strong SIU investigation, statements and examinations under oath (EUOs), and cell phone forensic analysis came together to uncover insurance fraud. Kirsten and fellow presenters survey all three components, discussing what worked and what didn't, and how the moving parts of a great investigation work together, including key investigation techniques, preservation letters, conducting EUOs, and using cell technology in EUOs. Wilson Elser is a sponsor of the 2026 annual conference.

Michael Lowry (Partner-Las Vegas, NV) has been appointed to DRI's State and Local Defense Organizations (SLDO) Relationship Committee, effective at the conclusion of DRI’s Annual Meeting in October 2026. The Committee works to foster and strengthen connections between DRI's state and local defense organizations, like Las Vegas Defense Lawyers, and DRI's substantive law committees. The goal is to benefit both through these relationships, which connect subject matter experts in ways that promote knowledge-sharing, professional development, and the advancement of defense lawyers’ practices and skills. Michael presently serves as DRI's State Representative for Nevada.

Introduction  Nearly 100 years ago, the U.S. Supreme Court issued its decision in Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303 (1927), limiting the recovery of purely economic damages in maritime tort cases. The implications of what became known as the Robins Dry Dock rule, however, are still felt to this day. Recently, in a 75-page memorandum, Judge James K. Bredar of the U.S. District Court for the District of Maryland issued a decision dismissing and narrowing several claims for purely economic losses arising out of the Baltimore Bridge collapse incident. As highlighted by the court, “the time has come to face the implications of Robins and the near century of case law that has interpreted and applied it.”1The decision highlights the strength and precedential value of the Robins Dry Dock rule. Background and Procedural Posture  Following the tragic incident involving the M/V DALI and Baltimore’s Francis Scott Key Bridge on March 26, 2024, the owner and manager of the DALI (the Petitioners) filed a petition in limitation in the U.S. District Court for the District of Maryland invoking the Shipowners' Limitation of Liability Act and seeking to limit their liability exposure to the value of the vessel and its pending freight.2 More than 50 claims were filed, including claims from federal and state governments, local government entities, and numerous other private parties seeking to recover damages for wrongful death and personal injury, property damage and cargo losses, and economic losses. The case was originally scheduled for a bench trial on June 1, 2026. Two weeks before trial, however, Petitioners moved to stay the proceedings based on newly pending criminal charges: an 18-count indictment against one of the Petitioners and its employee for various crimes related to the allision (a maritime term for a moving vessel striking a stationary object).3 The Court denied the stay and ordered that the case “stay the course.” As the matter approached the trial date, several parties settled the vast majority of claims. But two categories of claims remained: those filed by the City and County of Baltimore (the Local Government Claimants) and those filed by Private Economic Loss (PEL) Claimants. Petitioners asserted that the Robins Dry Dock rule barred recovery as a matter of law on all remaining claims, potentially obviating the need for a trial. Specifically, Petitioners moved to dismiss all pending and remaining claims from the Local Government Claimants and Private Economic Loss Claimants, arguing that the remaining Claimants “did not have an ownership interest in the Key Bridge and have failed to allege or identify a recognizable interest in any other property which purportedly sustained physical damage as a result of the allision.”4 In response, the remaining Claimants opposed Petitioners’ motion and argued, among other things, that: (1) they do have a proprietary interest in the Key Bridge and/or other property which sustained physical damage from the allision, and (2) even if the Robins Dry Dock rule applied, “well-established exceptions” also apply and would permit their claims to survive. Thus, the Court had to decide whether the Robins Dry Dock rule would dismiss or narrow the remaining and surviving claims. What is the Robins Dry Dock Rule? The Robins Dry Dock rule takes its name from a 1927 Supreme Court decision that, as the Court noted, applied “a principle, then settled in both the United States and in England, which refused recovery for negligent interference with contractual rights.”5 The facts of that case were unremarkable: while repairing a vessel, Robins Dry Dock negligently damaged one of its propellers, rendering the vessel unusable for two weeks longer than anticipated. The ship's owners could sue for the negligent damage. The charterer, however, who suffered no injury to himself or his property, could not recover lost profits caused by the delay. In the century since, courts have relied on the Robins Dry Dock decision to deny the recovery of purely economic damages in maritime tort cases. Under the Robins Dry Dock rule, a plaintiff in a maritime tort suit may not recover “for economic loss if that loss resulted from physical damage to property in which [plaintiff] had no proprietary interest (i.e., no ownership or ownership-equivalent stake).”6 In general terms, a party may not recover economic damages in the absence of a showing that the party sustained physical injury to its property or property in which it has a proprietary interest as a result of the maritime incident. The purpose of the rule is “to serve as a pragmatic limitation on the doctrine of foreseeability, giving judges an easily administrable rule of decision and allowing parties to order their affairs in view of predictable outcomes.”7 As noted by the Court in this case, a contrary rule “would open the door to virtually limitless suits, often of a highly speculative and remote nature” and “would expose the negligent defendant to a severe penalty.”8 Thus, the rule has “the virtue of predictability” even if it sometimes “denies recovery for foreseeable injury caused by negligent acts.”9  Are There Any Exceptions? To overcome the Robins Dry Dock hurdle, parties who may have sustained economic damages from a maritime incident must show either that they also have sustained physical injury to their property or that an exception applies and allows for recovery. The Court's decision identified some exceptions that may overcome the hurdles and harsh consequences of the Robins Dry Dock rule. Also, there are more exceptions suggested by other courts throughout the U.S., although they are narrowly applied. Proprietary Interest in the Physically Injured Property is Key A party may overcome the Robins Dry Dock hurdle if it can show a proprietary interest in the physically injured property. Importantly, and as highlighted by the Fifth Circuit, ownership is not an absolute requirement in determining proprietary interest.10 A party may have sufficient “proprietary interest” to recover economic damages if the party is the actual owner of the physically damaged property or one who is tantamount to an owner. For example, a party who has: (a) actual possession or control, (b) responsibility for repairs, and (c) responsibility for maintenance for the physically injured property is one tantamount to an owner and may recover for economic losses.11 The Commercial Fisherman or Special Situation Exception The Court noted the “commercial fisherman exception,” which is dependent upon a very special and narrow situation. Specifically, the Court noted that the Fourth Circuit has permitted commercial fishermen to recover lost profits following the loss of a ship in which they had no ownership interest, due to their “special situation” of being in “a kind of joint venture” with the owner, because their losses were “as foreseeable and direct a consequence of the tortfeasor's actions as the shipowner's.”12 The Contractual Loss-Shifting Exception The Court also noted a potential exception when a contract has transferred the risk of economic loss from a property owner to a third party, which may allow the third party to recover despite the Robins Dry Dock rule.13 The Court highlighted a decision from the Fourth Circuit which permitted a time charterer to recover purely economic losses because the charter contract “transferred the risk of loss of use from the owner to the time charterer” and the time charterer had “a possessory interest in the vessel sufficient to give it standing to claim [economic] damages.”14 The Intentional Acts Exception The Court noted that the remaining Claimants attempted to advance an “intentional acts exception” because of Petitioners’ criminal misconduct. Specifically, Claimants argued that the Robins Dry Dock rule does not apply “because [their] damages were caused by Petitioners’ intentional acts.”15 As noted by the Court, this is a very narrow exception that does not cover intentional conduct generally but only situations where a wrongdoer intentionally targeted a plaintiff's economic interests, such as intentional interference with contract or intentionally caused nuisance.16 The Court rejected the intentional acts exception raised by the Claimants, finding that even if Petitioners engaged in criminal misconduct, they did not intend to cause harm to any claimant’s specific economic interests.17 The Integrated Unit Exception Although not expressly discussed by the Court, the Fifth Circuit has articulated and applied an integrated unit exception to the Robins Dry Dock rule. Under this exception, a party who is not the owner or tantamount to an owner of the physically impacted property may, nonetheless, recover economic damages if the physically affected asset is attached to the party’s asset and they both operate as an integrated unit.18  Application of the Robins Dry Dock Rule to This Case With these principles in mind, the Court turned to the remaining individual claims. The results reinforced the precedential force and implications of the Robins Dry Dock rule.  The Claims from City of Baltimore The City's claim only survived in one narrow aspect: it may continue to pursue damages associated with the harm to the 72-inch pre-cast concrete water main that runs beneath the Patapsco River at the location of the bridge. The City alleged that the combination of the DALI's evasive maneuvers and the collapse of the bridge physically damaged this City-owned infrastructure, and the Court could not conclude as a matter of law that this claim would fail. However, the remainder of the City's claimed damages, which were purely economic in nature, including lost tax revenue, increased road maintenance costs, and other downstream economic harms, were dismissed. The City's argument that it held a “proprietary interest” in the Key Bridge itself, because the bridge was a “functional component” of its municipal transportation network, was rejected by the Court. Likewise, damages to the City's streets and other bridges, caused by diverted heavy traffic, were also deemed too remote and attenuated. The Claims from Baltimore County The County's claim likewise survived only in part. It may proceed only on damages to those waterways and shorelines in which it can establish ownership. The collapse sent tons of debris into surrounding waters, and the County plausibly alleged physical damage to its shorelines, surface waters, and sediments. But the County's response costs, search-and-rescue expenses, lost tax revenue, and other economic damages were dismissed. The Claims from the Private Economic Loss Claimants The PEL Claimants, which were businesses ranging from shipping companies and longshoremen to sugar refiners and construction firms, saw their claims dismissed almost entirely as they could not show physical injury to their property. The sole exception: four “Container Claimant” parties who alleged they had cargo aboard the DALI that was physically damaged in the allision were permitted to proceed, because physical damage to one's own property is precisely the kind of injury that Robins Dry Dock rule does not bar. Key Takeaways  1. The Robins Dry Dock rule remains a big hurdle. Nearly a century after the Supreme Court issued the decision, the rule continues to operate as a near-absolute bar to recovery of economic damages for claimants who lack a proprietary interest in the damaged property. The Baltimore Bridge decision confirms and highlights that even catastrophic, highly publicized incidents with clearly devastating economic consequences do not affect the rule's application and implications. 2. The exceptions are narrowly applied. Although certain exceptions have been recognized by courts in the U.S., these exceptions are narrow and are only applied in very specific circumstances. As exemplified by the Court, none of the exceptions raised by the remaining Claimants prevented the harsh consequences of the Robins Dry Dock rule.  3. Proprietary interest in the physically injured property is key. The dividing line between claims that survived and claims that were dismissed is whether the claimant could establish a proprietary interest in property that was directly and physically damaged by the tortfeasor’s conduct. Thus, it is important to properly investigate a claim and develop the record following an incident to properly plead and show physical injury. _______________________________________________________________________________________ 1 In re Petition of Grace Ocean Private Ltd., Civ. No. 24-0941-JKB, Memorandum (D. Md. Aug. 25, 2026) (R. Doc. 906 at 4). 2 46 U.S.C. §§ 30501–30. This special maritime procedure is known as a limitation proceeding, which is a legal proceeding that consolidates all related claims into a single court. 3 On April 8, 2026, a grand jury returned an 18-count indictment charging the Owner and Captain with various crimes. See R. Doc. 906 at 5.  4 Petitioners sought to dismiss the remaining claims based on the standard of Rule 12 of the Federal Rules of Civil Procedure (motion to dismiss) or, in the alternative, to covert the motion and apply the standard of Rule 56 (summary judgment). See R. Doc. 906 at 7-8. 5 R. Doc. 906 at 11 (citing Robins Dry Dock, 275 U.S. at 307-10; State of La. ex rel. Guste v. M/V TESTBANK, 752 F.2d 1019 (5th Cir. 1985)). 6 Robins Dry Dock, 275 U.S. at 303; TESTBANK, 752 F.2d at 1022.  7 Plains Pipeline, L.P. v. Great Lakes Dredge & Dock Co., 620 F. App’x 281, 286 (5th Cir. 2015) (citing TESTBANK, 752 F.2d at 1022, 1028-30)). 8 R. Doc. 906 at 12 (citing General Foods Corp. v. United States, 448 F. Supp. 111, 112-13 (D. Md. 1978)). 9 TESTBANK, 752 F.2d at 1028–29. 10 See Plains Pipeline, 620 F. App’x at 285 (citing In re Deepwater Horizon, 784 F.3d 1019, 1026 (5th Cir. 2015)). 11 See Tex. E. Transmission Corp. v. McMoran Offshore Expl. Co., 877 F.2d 1214, 1226 (5th Cir. 1989) (citing Louisville & N. R. Co. v. M/V BAYOU LACOMBE, 597 F.2d 469 (5th Cir. 1979)); Mardi Gras World, LLC v. Marquette Transp. Co., 416 F. Supp. 3d 596, 602 (E.D. La. 2019). 12 Yarmouth Sea Prods. Ltd. v. Scully, 131 F.3d 389, 398 (4th Cir. 1997); see also Adams v. Star Enter., 51 F.3d 417, 424–25 (4th Cir. 1995). 13 Venore Transp. Co. v. M/V STRUMA, 583 F.2d 708, 711 (4th Cir. 1978); see Amoco Transp. Co. v. S/S MASON LYKES, 768 F.2d 659, 668 (5th Cir. 1985). 14 R. Doc. 906 at 13 (citing Venore, 583 F.2d at 711). 15 R. Doc. 906 at 36. 16 See, e.g., Kaiser Aluminum & Chem. Corp. v. Marshland Dredging Co., 455 F.2d 957, 958 (5th Cir. 1972); Dick Meyers Towing Serv., Inc. v. United States, 577 F.2d 1023, 1025 (5th Cir. 1978). 17 R. Doc. 906 at 3 (citing Nautilus Marine, Inc. v. Niemela, 170 F.3d 1195, 1197 (9th Cir. 1999)). 18 See Domar Ocean Transp., Ltd., Div. of Lee-Vac, Ltd. v. M/V ANDREW MARTIN, 754 F.2d 616 (5th Cir. 1985).

Q: Under federal statutes, can an employer round employees’ time up or down when they clock in?  A: Yes, but not in a manner where the employees are not fully compensated for all the time they work.  Some employers track employee hours in 5-, 10-, or 15-minute increments, and the Fair Labor Standards Act (FLSA) allows an employer to round employee time to the nearest quarter hour. The FLSA recognizes that it can be impractical to count time down to the minute. An employer, however, can violate FLSA if the employee is not fully compensated for the time they work or if the employer always rounds down. Thus, if an employer rounds down, it must also round up. Of course, if there is a situation where it is practical to count time down to the minute, such as with digital time tracking, then counting each minute eliminates risk from a FLSA rounding claim.  In the scenario where an employer must round, there are some safer ways to do it, such as:  Rounding in favor of the employee, despite being more expensive for the employer. This eliminates risk because it will always favor the employee. Using the start/stop method. The employer can round down when the employee clocks in and round up when the employee clocks out, or vice versa. As an example, an employee who clocks in at 8:56 AM for a 9:00 AM shift would not be paid for those four minutes. Likewise, an employee who clocks out early at 4:56 PM for a shift ending at 5:00 PM would still be paid for those unworked four minutes. Some employers, however, have been found liable for undercompensating employees1 when this facially neutral policy is not applied neutrally. Setting the time clock to pay in 5-, 10-, or 15-minute increments. As an example, if the employer sets the clock to pay in 10-minute intervals and the employee clocks in at 9:05 AM, then the employer would round down to 9:00 AM. If the employee clocks in at 9:06 AM, then the employer would round up to 9:10 AM.  Regardless of the rounding method chosen, the employer has an obligation to audit their payroll practices to make sure the implementation of the rounding procedure is neutral or favors the employee. The employer cannot rely on a facially neutral policy as a defense if employees are routinely undercompensated. Employers should also clearly identify their rounding policy in the handbook so employees are aware of it.   If the employer has knowledge of its employees working, it must pay them accordingly. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employees' fixed or regular working time or practically ascertainable period of time the employee is regularly required to spend on duties assigned to them. Rounding is only permitted when there are uncertain or indefinite periods of time of a few seconds or minutes duration.2 Employers who do not properly round are subject to FLSA claims and state law claims for underpaid wages.  This article only covers federal statutes, and employers should also check state and local legislation as well comply with any differences with federal law. Each employer has different needs. If you are an employer with questions about how to pay employees or applicable state and federal employment laws, please reach out to an experienced Wilson Elser employment attorney. ________________________________________________________________________________________ 1 Houston v. Saint Luke's Health Sys., 76 F.4th 1145, 1151 (8th Cir. 2023). 2 29 CFR 785.47. 

Joshua Bachrach (Partner-Philadelphia, PA) and Angela Heim (Of Counsel-Philadelphia, PA) obtained dismissal of all claims against the firm’s disability carrier client in the U.S. District Court for the Northern District of California. The plaintiff stopped working after developing acute autoimmune hepatitis, which caused severe abdominal pain and fatigue. She subsequently submitted a claim under her employer’s long-term disability plan, insured by our client. Although the plaintiff’s claim was approved, benefits ended a few years later after her condition stabilized. She argued that she remained disabled by fatigue caused by her medical condition and treatment medications. The court noted that the doctor on whom the plaintiff relied identified symptoms not documented in his contemporaneous office notes. The treating doctor also refused to discuss plaintiff’s condition with a peer-review doctor retained by our client. The court explained that our client was not required to accept the plaintiff’s reported complaints “at face value.” After conducting a de novo review of the evidence, the court concluded that the plaintiff failed to carry her burden of proving that her illness prevented her from working at the time the benefits ended.

Denise M. Motta (Of Counsel-Louisville, KY) will be a panelist at this year’s ABA TIPS ADR Summit, where she will offer insights on developing a mediation practice. Denise will draw on her experience as a mediator and advocate, having successfully mediated high-stakes cases across the country throughout her career. 

Convergence is a one-day, in-person conference for professionals at the intersection of privacy, cybersecurity, and AI governance. Hosted by Wilson Elser in partnership with Ankura and PrivadoAI, the event brings together general counsel, privacy leaders, cybersecurity and risk professionals, the insurance and carrier community, and outside counsel for practical discussions and industry networking. As agentic AI advances and regulatory expectations evolve, privacy, security, and governance can no longer be addressed in isolation. Convergence explores this convergence through four focused sessions, followed by a closing reception designed to continue the conversation.

Super Lawyers® has named four attorneys from Wilson Elser’s Houston office to the 2026 Texas Super Lawyers® and Rising Stars™ lists: Super Lawyers Kent M. Adams (Senior Counsel) Personal Injury General: Defense Linda P. Wills (Partner) Employment & Labor Rising Stars Lina Al-Salim (Of Counsel) Personal Injury Medical Malpractice: Plaintiff Kelsi Wade Piatkowski (Partner) Personal Injury General: Defense Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The Rising Stars lists, comprising the best attorneys who are 40 years of age and younger or who have practiced law for 10 years or less, are published nationwide in Super Lawyers magazines and in leading city and regional magazines across the country. No more than 2.5 percent of the lawyers in the state are named to these lists.

Colt Dodrill (Partner-Phoenix, AZ) forced a voluntary dismissal of a car share lawsuit in Nevada’s Eighth Judicial District Court, on behalf of the firm’s client, a car owner. The plaintiff sued our client, who hosted his car on a non-party’s car-sharing platform, for negligently entrusting the vehicle to the at-fault driver. Colt moved to dismiss, arguing that the alleged at-fault driver was not on the reservation and that the law does not impute upon the client the successive entrustment from the authorized driver. The plaintiff opposed, insisting on the right to plead in the alternative and citing different allegations claiming the client had authorized the at-fault driver. Colt argued that the plaintiff may plead in the alternative only when legitimately in doubt as to the true facts, but letters to Plaintiff’s prior counsel confirmed the at-fault driver was not authorized. Five minutes after Wilson Elser’s reply was e-filed, the plaintiff agreed to voluntarily dismiss our client and vacate the motion hearing. 

I have been writing about the insurance risks of intoxicating hemp products since 2021, when delta-8 THC gummies first started showing up in convenience stores and gas stations across the country. Back then, our message to the cannabis, hemp, and insurance industries was simple. These products violate the spirit, if not the actual letter, of the 2018 Farm Bill, and the cannabis and hemp industries and their insurers should be wary of a government response. Well, a response from Congress took more than five years, but the response has teeth. The Federal Ban Congress rewrote the federal definition of hemp in legislation passed in late 2025. The changes were originally set to take effect on November 12, 2026, and they are sweeping. Congress has since approved a delay of most provisions to December 11, 2026, but synthetic and lab-converted cannabinoids like delta-8 and HHC remain excluded regardless of dose and subject to the November 12 ban as scheduled. The new law imposes a “total THC” standard that counts all forms of THC, not just delta-9, and caps finished hemp products at just 0.4 milligrams of total THC per container. Industry estimates suggest roughly 95 percent of hemp-derived cannabinoid products currently sold will become federally unlawful under the new definition. Products that exceed these limits will be classified as marijuana under the Controlled Substances Act. The Hemp Industry Fights Back The hemp industry is not going quietly. Both litigation and legislative efforts are underway to prevent the ban from taking effect, and Texas has become ground zero for the courtroom fight. In early August 2026, hemp industry groups sued the Texas Department of State Health Services in federal court after the agency reclassified delta-8 and other hemp-derived THC compounds as Schedule I controlled substances. The plaintiffs argue that the state's ban is preempted by the 2018 Farm Bill, violates due process, and imposes an unconstitutional burden on interstate commerce. They sought a temporary restraining order to halt enforcement. A federal judge, however, declined to block the ban, finding the industry challengers unlikely to prevail on their constitutional claims. A separate state-court challenge is pending before a Travis County judge over related smokable hemp rules, and additional lawsuits have been filed alleging the ban has created a monopoly for the state's medical marijuana program. Similar battles are playing out in Missouri, where the hemp industry is challenging that state's intoxicating hemp ban as unconstitutional. On the legislative front, several bills are moving through Congress aimed at softening or delaying the ban. The most notable is the Hemp Planting Predictability Act, a bipartisan effort to push the effective date back by two years to November 2028, giving the industry and regulators time to develop a workable framework. Other proposals seek to carve out non-intoxicating CBD products or raise the 0.4 mg cap to a more commercially viable threshold. There is real momentum behind some of these efforts, and even the White House has signaled support for protecting non-intoxicating hemp products from the ban’s overreach. The most concrete development happened on August 8, 2026, when the U.S. Senate passed H.R. 6500 by a 90-6 vote, with a provision that would delay the ban on naturally derived hemp THC products from November 12 to December 11, 2026. On September 1, 2026, the U.S. House of Representatives gave the bill final congressional approval by a bipartisan 370-48 vote, sending it to President Trump’s desk. The delay provision was based on the bipartisan Hemp Planting Predictability Act, introduced by Senators Amy Klobuchar (D-MN), Rand Paul (R-KY), and Jeff Merkley (D-OR). Synthetic cannabinoids continue to face an immediate November 12 ban, while naturally derived hemp THC products get a one-month reprieve to December 11. That delay is modest and does not change the underlying law. The President’s signature is expected but remains pending. We expect more lawsuits and more bills. We also expect most of the litigation to fail. The constitutional arguments are creative, but Congress has broad authority under the Commerce Clause to define what qualifies as a controlled substance, and the new definition is clear about its intent. The 2018 Farm Bill’s derivatives loophole, which facilitates products containing delta-8, delta-10, THC-O, THCA flower, and even delta-9 THC extracted from hemp, was never intended by Congress. It took Congress more than five years to close the loophole, but it has now acted. Courts are generally reluctant to second-guess that kind of legislative correction.  The industry’s longer-term legislative goals remain uncertain, including the standalone Hemp Planting Predictability Act (H.R. 7024), which would push the date back by three years. Whether Congress can enact a more comprehensive regulatory framework before December 11 is far from assured.  Companies and Insurers Must Act Now Our advice is don’t wait. Congress has provided a brief reprieve, but hemp companies and the insurers that cover them should be preparing now for December 11, not hoping that a federal judge or another last-minute act of Congress will ride to the rescue. A one-month delay is not a solution. Waiting is the worst possible risk management strategy. The practical fallout from this ban will be felt across nearly every coverage line. Start with product liability and property. When the ban takes effect, inventory that was perfectly legal yesterday becomes a controlled substance today. Product liability policies that were written to cover hemp-derived products may suddenly be covering the sale or distribution of federally illegal marijuana. That raises immediate coverage questions. Does the policy contain an illegal acts exclusion? Is there a controlled substance exclusion? If the insured continues to sell these products after December 11, what happens to the coverage? Underwriters need to be reviewing policy language now and deciding how to address this. Cargo and stock-throughput programs are directly implicated as well. Wholesalers, distributors, and brands that straddle the marijuana and hemp product categories should expect complications in coverage terms, exclusions, and transit insurance for inventory that may be reclassified mid-shipment. If a product leaves a warehouse as legal hemp and arrives at its destination as federally illegal marijuana, who bears the risk? These are not hypothetical questions. They must be answered by December 11. Beyond the insurance policy itself, the collateral risks are diverse. Companies with existing leases may face landlord disputes if the premises are being used to store or sell newly illegal products. Contracts with suppliers and customers must be revisited to understand how risk and loss are apportioned. E-commerce platforms may delist products, cutting off revenue streams overnight. Existing product liability claims related to hemp products may take on a different complexion when the underlying product becomes illegal. Loans secured by hemp inventory could go into default. Investors who backed hemp companies expecting continued legality may pursue claims against management. All this increased uncertainty will likely result in more claims and litigation, which may trigger a policy response. One important nuance to understand is that some states have laws that expressly permit the sale of hemp-derived THC products, and those laws don't automatically disappear because the federal definition has changed. Where a state continues to allow legal hemp product sales, we recommend that insurers and operators treat those situations similarly to the regulated intrastate marijuana model that has been operating successfully for years. The risk management playbook is similar—know your customer, know your state’s regulations, and maintain compliance. There is also a tax dimension that companies cannot afford to ignore. If a hemp company continues selling products that are now federally classified as marijuana, it should expect Section 280E of the Internal Revenue Code to apply. That means most ordinary business deductions vanish, effective tax rates skyrocket, and the economics of the business fundamentally change. The regulated cannabis industry has been living with 280E for years, and it is brutal. Hemp companies that are new to this reality should get tax counsel involved immediately. The intoxicating hemp market was always on borrowed time. We said as much when delta-9 THC gummies started being sold as “legal hemp” out of convenience stores while regulated cannabis operators next door were paying through the nose for compliance. That imbalance was unsustainable. Now the correction is here. The smart move for hemp operators is to diversify, pivot to compliant products or, where state law permits, participate in the regulated cannabis market. For insurers, it’s time to audit your book, update your forms, and make sure you know exactly what you’re covering when December 11 arrives. This article was published in the September 7, 2026, posting of Insurance Journal.

Kirsten Curtis (Partner-Portland, OR) will present “Ashes to Evidence: Leveraging Cell Tech in Arson EUOs” at the International Association of Special Investigation Units (IASIU) Annual Conference, held in Orlando, Florida, September 20-23, 2026. The presentation includes a case study of a Washington claim in which a strong SIU investigation, statements and examinations under oath (EUOs), and cell phone forensic analysis came together to uncover insurance fraud. Kirsten and fellow presenters survey all three components, discussing what worked and what didn't, and how the moving parts of a great investigation work together, including key investigation techniques, preservation letters, conducting EUOs, and using cell technology in EUOs. Wilson Elser is a sponsor of the 2026 annual conference.

Michael Lowry (Partner-Las Vegas, NV) has been appointed to DRI's State and Local Defense Organizations (SLDO) Relationship Committee, effective at the conclusion of DRI’s Annual Meeting in October 2026. The Committee works to foster and strengthen connections between DRI's state and local defense organizations, like Las Vegas Defense Lawyers, and DRI's substantive law committees. The goal is to benefit both through these relationships, which connect subject matter experts in ways that promote knowledge-sharing, professional development, and the advancement of defense lawyers’ practices and skills. Michael presently serves as DRI's State Representative for Nevada.

Introduction  Nearly 100 years ago, the U.S. Supreme Court issued its decision in Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303 (1927), limiting the recovery of purely economic damages in maritime tort cases. The implications of what became known as the Robins Dry Dock rule, however, are still felt to this day. Recently, in a 75-page memorandum, Judge James K. Bredar of the U.S. District Court for the District of Maryland issued a decision dismissing and narrowing several claims for purely economic losses arising out of the Baltimore Bridge collapse incident. As highlighted by the court, “the time has come to face the implications of Robins and the near century of case law that has interpreted and applied it.”1The decision highlights the strength and precedential value of the Robins Dry Dock rule. Background and Procedural Posture  Following the tragic incident involving the M/V DALI and Baltimore’s Francis Scott Key Bridge on March 26, 2024, the owner and manager of the DALI (the Petitioners) filed a petition in limitation in the U.S. District Court for the District of Maryland invoking the Shipowners' Limitation of Liability Act and seeking to limit their liability exposure to the value of the vessel and its pending freight.2 More than 50 claims were filed, including claims from federal and state governments, local government entities, and numerous other private parties seeking to recover damages for wrongful death and personal injury, property damage and cargo losses, and economic losses. The case was originally scheduled for a bench trial on June 1, 2026. Two weeks before trial, however, Petitioners moved to stay the proceedings based on newly pending criminal charges: an 18-count indictment against one of the Petitioners and its employee for various crimes related to the allision (a maritime term for a moving vessel striking a stationary object).3 The Court denied the stay and ordered that the case “stay the course.” As the matter approached the trial date, several parties settled the vast majority of claims. But two categories of claims remained: those filed by the City and County of Baltimore (the Local Government Claimants) and those filed by Private Economic Loss (PEL) Claimants. Petitioners asserted that the Robins Dry Dock rule barred recovery as a matter of law on all remaining claims, potentially obviating the need for a trial. Specifically, Petitioners moved to dismiss all pending and remaining claims from the Local Government Claimants and Private Economic Loss Claimants, arguing that the remaining Claimants “did not have an ownership interest in the Key Bridge and have failed to allege or identify a recognizable interest in any other property which purportedly sustained physical damage as a result of the allision.”4 In response, the remaining Claimants opposed Petitioners’ motion and argued, among other things, that: (1) they do have a proprietary interest in the Key Bridge and/or other property which sustained physical damage from the allision, and (2) even if the Robins Dry Dock rule applied, “well-established exceptions” also apply and would permit their claims to survive. Thus, the Court had to decide whether the Robins Dry Dock rule would dismiss or narrow the remaining and surviving claims. What is the Robins Dry Dock Rule? The Robins Dry Dock rule takes its name from a 1927 Supreme Court decision that, as the Court noted, applied “a principle, then settled in both the United States and in England, which refused recovery for negligent interference with contractual rights.”5 The facts of that case were unremarkable: while repairing a vessel, Robins Dry Dock negligently damaged one of its propellers, rendering the vessel unusable for two weeks longer than anticipated. The ship's owners could sue for the negligent damage. The charterer, however, who suffered no injury to himself or his property, could not recover lost profits caused by the delay. In the century since, courts have relied on the Robins Dry Dock decision to deny the recovery of purely economic damages in maritime tort cases. Under the Robins Dry Dock rule, a plaintiff in a maritime tort suit may not recover “for economic loss if that loss resulted from physical damage to property in which [plaintiff] had no proprietary interest (i.e., no ownership or ownership-equivalent stake).”6 In general terms, a party may not recover economic damages in the absence of a showing that the party sustained physical injury to its property or property in which it has a proprietary interest as a result of the maritime incident. The purpose of the rule is “to serve as a pragmatic limitation on the doctrine of foreseeability, giving judges an easily administrable rule of decision and allowing parties to order their affairs in view of predictable outcomes.”7 As noted by the Court in this case, a contrary rule “would open the door to virtually limitless suits, often of a highly speculative and remote nature” and “would expose the negligent defendant to a severe penalty.”8 Thus, the rule has “the virtue of predictability” even if it sometimes “denies recovery for foreseeable injury caused by negligent acts.”9  Are There Any Exceptions? To overcome the Robins Dry Dock hurdle, parties who may have sustained economic damages from a maritime incident must show either that they also have sustained physical injury to their property or that an exception applies and allows for recovery. The Court's decision identified some exceptions that may overcome the hurdles and harsh consequences of the Robins Dry Dock rule. Also, there are more exceptions suggested by other courts throughout the U.S., although they are narrowly applied. Proprietary Interest in the Physically Injured Property is Key A party may overcome the Robins Dry Dock hurdle if it can show a proprietary interest in the physically injured property. Importantly, and as highlighted by the Fifth Circuit, ownership is not an absolute requirement in determining proprietary interest.10 A party may have sufficient “proprietary interest” to recover economic damages if the party is the actual owner of the physically damaged property or one who is tantamount to an owner. For example, a party who has: (a) actual possession or control, (b) responsibility for repairs, and (c) responsibility for maintenance for the physically injured property is one tantamount to an owner and may recover for economic losses.11 The Commercial Fisherman or Special Situation Exception The Court noted the “commercial fisherman exception,” which is dependent upon a very special and narrow situation. Specifically, the Court noted that the Fourth Circuit has permitted commercial fishermen to recover lost profits following the loss of a ship in which they had no ownership interest, due to their “special situation” of being in “a kind of joint venture” with the owner, because their losses were “as foreseeable and direct a consequence of the tortfeasor's actions as the shipowner's.”12 The Contractual Loss-Shifting Exception The Court also noted a potential exception when a contract has transferred the risk of economic loss from a property owner to a third party, which may allow the third party to recover despite the Robins Dry Dock rule.13 The Court highlighted a decision from the Fourth Circuit which permitted a time charterer to recover purely economic losses because the charter contract “transferred the risk of loss of use from the owner to the time charterer” and the time charterer had “a possessory interest in the vessel sufficient to give it standing to claim [economic] damages.”14 The Intentional Acts Exception The Court noted that the remaining Claimants attempted to advance an “intentional acts exception” because of Petitioners’ criminal misconduct. Specifically, Claimants argued that the Robins Dry Dock rule does not apply “because [their] damages were caused by Petitioners’ intentional acts.”15 As noted by the Court, this is a very narrow exception that does not cover intentional conduct generally but only situations where a wrongdoer intentionally targeted a plaintiff's economic interests, such as intentional interference with contract or intentionally caused nuisance.16 The Court rejected the intentional acts exception raised by the Claimants, finding that even if Petitioners engaged in criminal misconduct, they did not intend to cause harm to any claimant’s specific economic interests.17 The Integrated Unit Exception Although not expressly discussed by the Court, the Fifth Circuit has articulated and applied an integrated unit exception to the Robins Dry Dock rule. Under this exception, a party who is not the owner or tantamount to an owner of the physically impacted property may, nonetheless, recover economic damages if the physically affected asset is attached to the party’s asset and they both operate as an integrated unit.18  Application of the Robins Dry Dock Rule to This Case With these principles in mind, the Court turned to the remaining individual claims. The results reinforced the precedential force and implications of the Robins Dry Dock rule.  The Claims from City of Baltimore The City's claim only survived in one narrow aspect: it may continue to pursue damages associated with the harm to the 72-inch pre-cast concrete water main that runs beneath the Patapsco River at the location of the bridge. The City alleged that the combination of the DALI's evasive maneuvers and the collapse of the bridge physically damaged this City-owned infrastructure, and the Court could not conclude as a matter of law that this claim would fail. However, the remainder of the City's claimed damages, which were purely economic in nature, including lost tax revenue, increased road maintenance costs, and other downstream economic harms, were dismissed. The City's argument that it held a “proprietary interest” in the Key Bridge itself, because the bridge was a “functional component” of its municipal transportation network, was rejected by the Court. Likewise, damages to the City's streets and other bridges, caused by diverted heavy traffic, were also deemed too remote and attenuated. The Claims from Baltimore County The County's claim likewise survived only in part. It may proceed only on damages to those waterways and shorelines in which it can establish ownership. The collapse sent tons of debris into surrounding waters, and the County plausibly alleged physical damage to its shorelines, surface waters, and sediments. But the County's response costs, search-and-rescue expenses, lost tax revenue, and other economic damages were dismissed. The Claims from the Private Economic Loss Claimants The PEL Claimants, which were businesses ranging from shipping companies and longshoremen to sugar refiners and construction firms, saw their claims dismissed almost entirely as they could not show physical injury to their property. The sole exception: four “Container Claimant” parties who alleged they had cargo aboard the DALI that was physically damaged in the allision were permitted to proceed, because physical damage to one's own property is precisely the kind of injury that Robins Dry Dock rule does not bar. Key Takeaways  1. The Robins Dry Dock rule remains a big hurdle. Nearly a century after the Supreme Court issued the decision, the rule continues to operate as a near-absolute bar to recovery of economic damages for claimants who lack a proprietary interest in the damaged property. The Baltimore Bridge decision confirms and highlights that even catastrophic, highly publicized incidents with clearly devastating economic consequences do not affect the rule's application and implications. 2. The exceptions are narrowly applied. Although certain exceptions have been recognized by courts in the U.S., these exceptions are narrow and are only applied in very specific circumstances. As exemplified by the Court, none of the exceptions raised by the remaining Claimants prevented the harsh consequences of the Robins Dry Dock rule.  3. Proprietary interest in the physically injured property is key. The dividing line between claims that survived and claims that were dismissed is whether the claimant could establish a proprietary interest in property that was directly and physically damaged by the tortfeasor’s conduct. Thus, it is important to properly investigate a claim and develop the record following an incident to properly plead and show physical injury. _______________________________________________________________________________________ 1 In re Petition of Grace Ocean Private Ltd., Civ. No. 24-0941-JKB, Memorandum (D. Md. Aug. 25, 2026) (R. Doc. 906 at 4). 2 46 U.S.C. §§ 30501–30. This special maritime procedure is known as a limitation proceeding, which is a legal proceeding that consolidates all related claims into a single court. 3 On April 8, 2026, a grand jury returned an 18-count indictment charging the Owner and Captain with various crimes. See R. Doc. 906 at 5.  4 Petitioners sought to dismiss the remaining claims based on the standard of Rule 12 of the Federal Rules of Civil Procedure (motion to dismiss) or, in the alternative, to covert the motion and apply the standard of Rule 56 (summary judgment). See R. Doc. 906 at 7-8. 5 R. Doc. 906 at 11 (citing Robins Dry Dock, 275 U.S. at 307-10; State of La. ex rel. Guste v. M/V TESTBANK, 752 F.2d 1019 (5th Cir. 1985)). 6 Robins Dry Dock, 275 U.S. at 303; TESTBANK, 752 F.2d at 1022.  7 Plains Pipeline, L.P. v. Great Lakes Dredge & Dock Co., 620 F. App’x 281, 286 (5th Cir. 2015) (citing TESTBANK, 752 F.2d at 1022, 1028-30)). 8 R. Doc. 906 at 12 (citing General Foods Corp. v. United States, 448 F. Supp. 111, 112-13 (D. Md. 1978)). 9 TESTBANK, 752 F.2d at 1028–29. 10 See Plains Pipeline, 620 F. App’x at 285 (citing In re Deepwater Horizon, 784 F.3d 1019, 1026 (5th Cir. 2015)). 11 See Tex. E. Transmission Corp. v. McMoran Offshore Expl. Co., 877 F.2d 1214, 1226 (5th Cir. 1989) (citing Louisville & N. R. Co. v. M/V BAYOU LACOMBE, 597 F.2d 469 (5th Cir. 1979)); Mardi Gras World, LLC v. Marquette Transp. Co., 416 F. Supp. 3d 596, 602 (E.D. La. 2019). 12 Yarmouth Sea Prods. Ltd. v. Scully, 131 F.3d 389, 398 (4th Cir. 1997); see also Adams v. Star Enter., 51 F.3d 417, 424–25 (4th Cir. 1995). 13 Venore Transp. Co. v. M/V STRUMA, 583 F.2d 708, 711 (4th Cir. 1978); see Amoco Transp. Co. v. S/S MASON LYKES, 768 F.2d 659, 668 (5th Cir. 1985). 14 R. Doc. 906 at 13 (citing Venore, 583 F.2d at 711). 15 R. Doc. 906 at 36. 16 See, e.g., Kaiser Aluminum & Chem. Corp. v. Marshland Dredging Co., 455 F.2d 957, 958 (5th Cir. 1972); Dick Meyers Towing Serv., Inc. v. United States, 577 F.2d 1023, 1025 (5th Cir. 1978). 17 R. Doc. 906 at 3 (citing Nautilus Marine, Inc. v. Niemela, 170 F.3d 1195, 1197 (9th Cir. 1999)). 18 See Domar Ocean Transp., Ltd., Div. of Lee-Vac, Ltd. v. M/V ANDREW MARTIN, 754 F.2d 616 (5th Cir. 1985).

Q: Under federal statutes, can an employer round employees’ time up or down when they clock in?  A: Yes, but not in a manner where the employees are not fully compensated for all the time they work.  Some employers track employee hours in 5-, 10-, or 15-minute increments, and the Fair Labor Standards Act (FLSA) allows an employer to round employee time to the nearest quarter hour. The FLSA recognizes that it can be impractical to count time down to the minute. An employer, however, can violate FLSA if the employee is not fully compensated for the time they work or if the employer always rounds down. Thus, if an employer rounds down, it must also round up. Of course, if there is a situation where it is practical to count time down to the minute, such as with digital time tracking, then counting each minute eliminates risk from a FLSA rounding claim.  In the scenario where an employer must round, there are some safer ways to do it, such as:  Rounding in favor of the employee, despite being more expensive for the employer. This eliminates risk because it will always favor the employee. Using the start/stop method. The employer can round down when the employee clocks in and round up when the employee clocks out, or vice versa. As an example, an employee who clocks in at 8:56 AM for a 9:00 AM shift would not be paid for those four minutes. Likewise, an employee who clocks out early at 4:56 PM for a shift ending at 5:00 PM would still be paid for those unworked four minutes. Some employers, however, have been found liable for undercompensating employees1 when this facially neutral policy is not applied neutrally. Setting the time clock to pay in 5-, 10-, or 15-minute increments. As an example, if the employer sets the clock to pay in 10-minute intervals and the employee clocks in at 9:05 AM, then the employer would round down to 9:00 AM. If the employee clocks in at 9:06 AM, then the employer would round up to 9:10 AM.  Regardless of the rounding method chosen, the employer has an obligation to audit their payroll practices to make sure the implementation of the rounding procedure is neutral or favors the employee. The employer cannot rely on a facially neutral policy as a defense if employees are routinely undercompensated. Employers should also clearly identify their rounding policy in the handbook so employees are aware of it.   If the employer has knowledge of its employees working, it must pay them accordingly. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employees' fixed or regular working time or practically ascertainable period of time the employee is regularly required to spend on duties assigned to them. Rounding is only permitted when there are uncertain or indefinite periods of time of a few seconds or minutes duration.2 Employers who do not properly round are subject to FLSA claims and state law claims for underpaid wages.  This article only covers federal statutes, and employers should also check state and local legislation as well comply with any differences with federal law. Each employer has different needs. If you are an employer with questions about how to pay employees or applicable state and federal employment laws, please reach out to an experienced Wilson Elser employment attorney. ________________________________________________________________________________________ 1 Houston v. Saint Luke's Health Sys., 76 F.4th 1145, 1151 (8th Cir. 2023). 2 29 CFR 785.47. 

Joshua Bachrach (Partner-Philadelphia, PA) and Angela Heim (Of Counsel-Philadelphia, PA) obtained dismissal of all claims against the firm’s disability carrier client in the U.S. District Court for the Northern District of California. The plaintiff stopped working after developing acute autoimmune hepatitis, which caused severe abdominal pain and fatigue. She subsequently submitted a claim under her employer’s long-term disability plan, insured by our client. Although the plaintiff’s claim was approved, benefits ended a few years later after her condition stabilized. She argued that she remained disabled by fatigue caused by her medical condition and treatment medications. The court noted that the doctor on whom the plaintiff relied identified symptoms not documented in his contemporaneous office notes. The treating doctor also refused to discuss plaintiff’s condition with a peer-review doctor retained by our client. The court explained that our client was not required to accept the plaintiff’s reported complaints “at face value.” After conducting a de novo review of the evidence, the court concluded that the plaintiff failed to carry her burden of proving that her illness prevented her from working at the time the benefits ended.