Robert W. Berbenich

Denise M. Motta (Of Counsel-Louisville, KY), a mediator and arbitrator with the American Arbitration Association and vice chair of the Kentucky Bar Association's Alternative Dispute Resolution (ADR) Section, will present "Back to the Future: Key Components for a Successful Mediation" at each stop of the Kentucky Bar Association's seven-part Kentucky Law Update CLE series. In her presentation, Denise will share insights on ten practical strategies for advocates and neutrals to foster productive settlement dialogue at mediation and achieve successful resolutions. She will also discuss the critical roles that preparation, negotiation strategy, and mediator selection play in maximizing the likelihood of a successful outcome. The complimentary CLE program for Kentucky attorneys begins in Owensboro, Kentucky, on August 27, 2026, and continues at locations across the state through December 3, 2026. Beyond her work with the Kentucky Bar Association, Denise serves as chair of DRI's ADR Committee and vice chair of the ABA's Tort & Insurance Practice Section ADR Committee.

Edward O'Brien (Partner-Louisville, KY), Kim Koehler (Partner-Denver, CO), and Jason Melichar (Partner-Denver, CO) secured a significant appellate victory for Wilson Elser’s attorney client when the Colorado Court of Appeals affirmed the probate court’s order awarding the client more than $400,000 in attorney fees and costs following an earlier defense verdict. The appeal arose from a professional liability action brought by a former protected person against Wilson Elser’s client, who the court had appointed as a limited conservator after the protected person lost more than $1 million to online romance scams. After the conservatorship was terminated, the former protected person pursued a Petition for Surcharge alleging that our client had breached her fiduciary duty and seeking substantial damages. Kim and Jason successfully defended the client at a week-long bench trial, after which the probate court found that the petitioner failed to prove any fiduciary-duty breach and entered judgment for the client. As the prevailing party under the applicable probate framework, the client was awarded more than $400,000 in fees and costs. On appeal, the petitioner challenged the compensation and costs award, arguing that she was entitled to a hearing on its reasonableness and that the award violated various Colorado probate statutes. The Colorado Court of Appeals rejected those arguments and affirmed the probate court’s order in full. The court held that the petitioner waived her argument that a hearing was mandatory under section 15-10-604(4), C.R.S., because she had not raised that statutory basis in the probate court, instead asking only for a discretionary hearing under a different rule. The court also rejected her statutory challenge to the award of fees and costs for litigating the surcharge and discharge-compensation petitions, holding that sections 15-10-602(1) and 15-10-602(6), C.R.S., are stand-alone provisions and that a fiduciary’s good-faith prosecution or defense of a proceeding is compensable under section 15-10-602(6) regardless of whether the same litigation also qualifies as services rendered on behalf of the estate under section 15-10-602(1). The court declined to reach several remaining arguments because they were insufficiently developed, including challenges concerning alleged opposition to removal, testimony at a termination hearing, post-termination services, and the scope of the conservator’s authority after a removal petition. The decision preserves the probate court’s substantial fee and cost award and provides the client another important victory in the trial and appellate proceedings. Edward’s work on the appeal was pivotal in protecting the client’s significant judgment for fees and costs and allowing her to proceed with collection, absent further review.

Kristen A. Carroll (Partner-New York, NY) obtained summary judgment in the Supreme Court of the State of New York, New York County, on behalf of Wilson Elser’s client, a real estate investment company. In this premises liability case, the plaintiff allegedly fell from a riser step located on the first floor inside the defendant retailer’s unit. The plaintiff’s complaint alleged that our client and other defendants negligently maintained the unit. Kristen moved to dismiss the complaint, arguing that our client was an out-of-possession landlord with no duty to maintain the area where the plaintiff fell. She further demonstrated that the plaintiff’s expert engineer’s report submitted in opposition to the motion was unsworn, inadmissible hearsay, and insufficient to raise a triable issue of fact. The court concurred and, given its finding in our client’s favor on liability, did not need to reach the issue of indemnification against the defendant retailer. Accordingly, the court granted Kristen’s motion in full and dismissed the plaintiff’s complaint. Wilson Elser will file an order with notice of entry of this decision, allowing the plaintiff 30 days to file a notice of appeal.

Gutierrez-Zacatenco v. Herrera was an admitted-liability rear-end motor vehicle accident that was tried and produced a $5.5 million-plus judgment. Nevada’s Supreme Court vacated that judgment and remanded the case for a new trial because the district court improperly excluded medical records from a similar spinal injury Herrera sustained in another motor vehicle accident just two years earlier. During discovery, Herrera produced those records. The defense medical experts reviewed and relied upon them to conclude that her medical complaints were related to the earlier accident. At trial, Herrera moved to exclude the earlier records, arguing that the defense: (1) could not authenticate them and (2) did not include them in mandatory pretrial disclosures. The Supreme Court reversed. First, the district court erred by concluding the records were not authenticated. The district court ruled that the defense had not authenticated them via NRS 52.325. The Supreme Court concluded this was erroneous because NRS 52.325 applies only to medical records obtained via subpoena. The defendant had not obtained the records via subpoena, so NRS 52.325 was inapplicable. Instead, the authentication requirements of NRS 52.015 applied, and the records met those requirements. First, Herrera had produced the records herself and did not dispute that they accurately reflected medical care she received two years before the subject accident. The documents also bore markings giving the indicia of authenticity. Finally, a custodian of records affidavit confirmed their authenticity. Herrera asserted the records were properly excluded because the record of her final treatment date was missing, but she created this problem. As the Court noted, “Herrera produced an incomplete copy of her 2017 medical records in discovery, then parlayed that incomplete disclosure into an exclusionary ruling that advantaged her.” The missing record was relevant to weight, but it did not render the produced records inauthentic. Second, the district court alternatively excluded the records because the defendant had not adequately designated them under NRCP 16.1(a)(1). The Supreme Court disagreed, holding that NRCP 16.1(a)(1) “does not require [a] party to identify records that they only obtained through the opposing party’s discovery production.” The Supreme Court agreed with the district court that the defendant’s “broad, catchall descriptions” in a pretrial disclosure did not satisfy NRCP 16.1(a)(3). However, this error was harmless. Herrera was aware throughout the case that the defense relied upon the 2017 medical records, which provided sufficient notice. Ultimately, excluding the 2017 medical records affected the defendant’s substantial rights because a different result might reasonably have been reached had the records been admitted. Accordingly, the case was remanded for a new trial. Key Takeaways Although Gutierrez-Zacatenco may appear to be a dry, technical decision, its core concepts are fundamental to nearly any case: What documentation do you have, and can you authenticate it? Even the strongest defense—that the plaintiff sustained the same injury two years earlier—is worthless if the supporting evidence cannot be authenticated and admitted at trial.

Only the top 5.3 percent of all practicing lawyers in the nation are selected by their peers for inclusion on The Best Lawyers in America® list. This year, 123 Wilson Elser attorneys were so honored: Birmingham, AL David Hall – Partner David A. Lee ‒ Of Counsel William L. Waudby – Partner Phoenix, AZ Brian Cieniawski – Of Counsel  Los Angeles, CA E. Paul Dougherty Jr. – Partner David S. Eisen – Senior Counsel Diana M. Estrada – Partner William Tolin Gay – Of Counsel Linda Tai Hoshide – Partner Gregory K. Lee – Partner David M. Morrow – Partner Michelle R. Press – Partner David Simantob – Partner Tae S. Um – Partner San Diego, CA Carole J. Buckner – Partner Bruno W. Katz – Partner Patrick J. Kearns – Partner Michael P. McCloskey – Senior Counsel San Francisco, CA William M. Hake – Senior Counsel John H. Podesta – Partner Julie A. Torres – Partner Yakov P. Wiegmann – Partner Denver, CO Emily L. P. Aguero – Partner Jason D. Melichar – Partner Ryan A. Williams – Partner Jane E. Young – Partner  Christopher D. Yvars – Partner Stamford, CT Stephen P. Brown ‒ Partner Douglas M. Connors ‒ Partner Eric W.F. Niederer ‒ Partner Washington, D.C. Robert W. Goodson – Senior Counsel Catherine A. Hanrahan – Partner  Miami, FL  Alan Fiedel – Partner Tanya I. Suarez – Partner Gustavo A. Martinez Tristani – Partner Orlando, FL John Y. Benford – Partner Alicia M. Caridi – Of Counsel Jaime B. Eagan – Of Counsel Nicholas D. Freeman – Partner James M. Kloss – Partner  Leia Leitner – Of Counsel Sean M. McDonough – Partner  Noelle K. Sheehan – Partner  Tampa, FL Michelle Sabin – Of Counsel  Atlanta, GA Vonnetta L. Benjamin – Of Counsel  Allison M. Escott ‒ Of Counsel Matthew Foree – Of Counsel  Parks K. Stone – Partner Chicago, IL  Andrew J. Albright – Partner Michael J. Duffy – Partner Melissa A. Murphy-Petros – Of Counsel Indianapolis, IN Jarrod A. Malone – Partner Louisville, KY James M. Burd – Partner Scott A. Davidson – Of Counsel  Marcia L. Pearson – Partner  Christopher M. Piekarski – Of Counsel  Lynsie Gaddis Rust – Partner  New Orleans, LA Michael Harowski – Partner  H. Jake Rodriguez – Partner Boston, MA  Christopher P. Flanagan – Partner Christine A. Knipper – Partner George C. Rockas – Partner Baltimore, MD Angela W. Russell – Partner  Detroit, MI William S. Cook – Partner Kevin M. Mulvaney – Partner  St. Louis, MO Carolyn M. Husmann – Of Counsel  Daniel E. Tranen – Partner  Jackson, MS John S. Graham – Of Counsel William M. Vines – Of Counsel Charlotte, NC Gerald A. Stein II – Of Counsel  Madison, NJ Maxwell L. Billek – Partner Anne M. Dalena – Of Counsel  Andrew M. Epstein – Partner Peter Espey ‒ Of Counsel Roger R. Gottilla – Senior Counsel  Joseph T. Hanlon – Partner Barbara Hopkinson Kelly – Partner Kurt W. Krauss – Partner William D. Lipkind – Partner  Carolyn F. O’Conner – Partner Joanna Piorek – Partner Thomas F. Quinn – Senior Counsel  James B. Sharp – Of Counsel Katherine E. Tammaro – Partner Sheila Tarabour – Partner Michael P. Turner – Senior Counsel  Mark P. Vespole – Partner  Las Vegas, NV Karen L. Bashor – Partner Michael Lowry – Partner  Sheri Thome – Partner Albany, NY Peter A. Lauricella – Partner Christopher Martin – Partner  New York, NY Jeffrey B. Araten – Partner Eugene T. Boulé – Partner Joseph L. Francoeur – Partner Allison R. Graffeo – Partner Robin N. Gregory – Senior Counsel  Ellen Greiper – Partner  Ashley V. Humphries – Partner  Paul Karp – Partner  Guy J. Levasseur – Partner Frances Malfa – Partner  Stuart A. Miller – Partner  Richard Ng – Partner Lois K. Ottombrino – Senior Counsel Jay A. Potter – Partner  Ricki E. Roer – Senior Counsel  Dov G. Sternberg – Partner Scott H. Stopnik – Partner White Plains, NY  Alan B. Friedberg – Senior Counsel  Michael F. Grady – Partner Jacqueline Hattar – Partner Patricia Lacy – Partner Philip Quaranta – Partner Thomas W. Tobin – Senior Counsel  Portland, OR Michael T. Belisle – Partner  Lloyd Bernstein – Partner  Matthew C. Casey – Of Counsel George S. Pitcher – Partner  Peder A. Rigsby – Partner  Philadelphia, PA  Brian F. Breen – Partner  John T. Donovan – Partner  William F. McDevitt – Partner  Kathleen D. Wilkinson – Senior Counsel  Dallas, TX Craig Brinker – Of Counsel  J. Price Collins – Partner  Ashley F. Gilmore ‒ Partner Jennafer G. Groswith ‒ Partner Stephani R. Johnson – Partner Jarad L. Kent – Partner  James S. Kiser – Of Counsel Jennifer Martin – Partner R. Douglas Noah, Jr. – Partner  Kimberly A. Wilson – Partner  Houston, TX  Kent M. Adams – Senior Counsel Christina C. Huston – Of Counsel Lori D. Proctor – Partner  John R. Sheppard – Partner  Colin S. Sherrod – Of Counsel  Ronald L. White – Of Counsel  McLean, VA Kathryn Anne Grace – Partner  Matthew W. Lee – Partner Peter M. Moore – Partner Jason R. Waters – Partner  Seattle, WA Nicole Brodie Jackson – Partner Erin P. Fraser – Partner E. Penn Gheen – Of Counsel Lorianne Conklin Hanson – Partner Rachel Tallon Reynolds – Partner Evelyn E. Winters – Partner Milwaukee, WI Sarah Fry Bruch – Of Counsel William J. Katt – Senior Counsel  John P. Loringer – Partner 

For businesses operating websites in California, a pending appellate case may soon reshape the legal landscape. Variety Media, LLC v. Superior Court, now before California’s Second District Court of Appeal, could produce the first published California appellate decision addressing whether the California Invasion of Privacy Act (CIPA) applies to commonplace website technologies, including cookies, analytics tools, and advertising pixels. Why This Case Matters CIPA was enacted to address telephonic wiretapping, but plaintiffs across California have increasingly alleged that routine online tools (e.g., cookies, pixels, analytics platforms, advertising technologies, and fraud-prevention services) constitute unlawful pen registers or trap-and-trace devices under the statute. These claims have generated lawsuits, demand letters, arbitrations, and substantial settlement pressure attributable to CIPA’s statutory damages provisions. The irony is significant: the very technologies enabling privacy compliance, including preference management tools, consent mechanisms, and privacy notices, are themselves being challenged under CIPA. Unlike the California Consumer Privacy Act (CCPA), which includes detailed regulations addressing data sharing through website cookies, CIPA offers no roadmap for how businesses can deliver website functionality while avoiding liability. California trial courts have reached divergent conclusions, federal district court decisions also remain inconsistent, and businesses devote substantial resources to compliance efforts without a clear standard to guide them. The Court of Appeal’s decision to exercise original writ jurisdiction, rather than awaiting a traditional appeal following final judgment, underscores the case’s significance. At present, the appellate record contains 17 substantive briefs from the parties and amici, including business associations, technology companies, media organizations, privacy advocates, civil liberties groups, and academic institutions. The Legal Framework at Issue Under CIPA, a pen register is a device that records or decodes dialing, routing, addressing, or signaling information, while a trap-and-trace device captures the incoming equivalent. The central dispute in Variety Media is whether information exchanged between a user’s device and a website, such as IP addresses, device identifiers, URLs, and metadata, falls within these statutory definitions. The appeal raises interconnected questions: Does CIPA Section 638.51 reach routine software processes on commercial websites, or does it remain confined to law enforcement surveillance? Even if the statute can apply to internet activity, do the specific trackers at issue constitute “pen registers” under Section 638.50(b), or are they excluded as “tracking devices” under Section 629.51(a)(3)? What role should the federal Pen Register Act play in construing CIPA? And should CIPA be interpreted narrowly given California’s broader privacy regulatory landscape, including the CCPA? The Competing Arguments Appellant Variety contends that CIPA’s text, structure, and legislative history demonstrate the pen register provisions were designed to regulate telephonic surveillance rather than routine website communications. From Variety’s perspective, extending those provisions to common website technologies would expand CIPA beyond its intended scope and expose businesses to liability for ordinary internet operations. Sean Rose, the plaintiff below and the real party in interest on the appeal, advances the contrary position, arguing that CIPA is technology-neutral and applies whenever challenged technologies perform functions falling within its statutory definitions, irrespective of whether the Legislature contemplated internet communications. Under this reading, IP addresses, device identifiers, routing information, and metadata may qualify as CIPA-regulated information. The parties further disagree on the relevance of federal law. Variety maintains that Congress amended the federal Pen Register Act to address internet communications while California made no corresponding amendment to CIPA and that online privacy is governed by statutes, such as the CCPA. Rose counters that CIPA’s existing language already encompasses evolving technologies, that amendments to federal law do not constrain California’s interpretation of its own statute, and that the CCPA complements rather than supplants CIPA. Perspectives from Interested Parties The amicus briefs expand the scope of the appeal. Business organizations, including the U.S. Chamber of Commerce, Alliance for Legal Fairness, California Chamber of Commerce, California Retailers Association, Retail Litigation Center, and Association of Corporate Counsel, concentrate on the practical ramifications of applying CIPA to routine website operations. As the Association of Corporate Counsel observes, each new website tool that becomes a litigation target compels businesses to spend “countless hours and resources guessing at how best to avoid CIPA liability—while still maintaining CCPA compliance.” A separate brief filed jointly by Asana, Eventbrite, GoPro, ClickUp, Reddit, the Software & Information Industry Association, MasterClass, and Yelp supplies technical context on how IP addresses, cookies, pixels, and device data support website functionality, cybersecurity, fraud prevention, and analytics. Additional amici, including News/Media Alliance, Digital Content Next, the Movement for an Open Web, and the Southwestern Law School Amicus Project, address implications for digital publishers and CIPA’s statutory history. The amici supporting Rose (i.e., the ACLU of Northern California, ACLU of Southern California, and Oakland Privacy) argue that metadata and browsing information can reveal substantial details about individuals’ online activity, that the CCPA complements rather than supersedes CIPA, and that privacy protections should evolve alongside technology. The Court’s Supplemental Questions In May 2026, rather than proceeding directly to oral argument, the Court directed supplemental briefing on several questions. The Court inquired about the relationship between CIPA and the federal Pen Register Act; specifically, whether a California company could violate the federal statute by collecting internet metadata even if California’s pen register provisions were interpreted more narrowly, and whether CIPA should be construed to avoid conflict with federal law. The Court also asked whether the specific tracking technologies at issue (e.g., cookies that collect IP addresses, browser type, and similar device-level metadata) fall within CIPA’s definitions or are excluded as “tracking devices” under Penal Code Section 629.51. Finally, it questioned whether the pen register provisions apply only to communications containing “content,” and whether merely visiting a website constitutes a “communication” within the meaning of the statute. While the parties largely adhered to their original positions in supplemental briefing, Variety reiterated that Congress amended the federal Pen Register Act for internet communications while California made no comparable amendments to CIPA. Rose responded that CIPA’s existing language already reaches evolving technologies. The Court’s questions do not signal how it will ultimately decide, but they illuminate the issues likely to receive the most attention at oral argument. What Comes Next With briefing concluded, attention turns to the oral argument scheduled for August 25, 2026. Although the parties and amici disagree on CIPA’s application, they largely concur on how the underlying technologies function. The central questions have crystallized: whether CIPA reaches internet communications, whether the challenged tools fall within its definitions, and how CIPA should be interpreted alongside the CCPA. In summary, the disagreement transcends statutory interpretation. Variety and its supporters stress statutory limitations and potential business consequences, whereas Rose and his supporters emphasize consumer privacy and the imperative for CIPA’s protections to keep pace with technological change. The outcome could determine whether routine website data practices fall under CIPA’s surveillance provisions, California’s contemporary privacy framework, or both. Our next article will provide firsthand coverage from the courtroom, examining the panel’s questions, the parties’ responses, and what the argument reveals about how the Court may resolve this closely watched appeal.

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

Attorneys named among The Best Lawyers in America® Ones to Watch™ have demonstrated professional excellence and achieved impactful results in and out of the courtroom. Focused on lawyers who have been in private practice for 5 to 10 years, the honor is based on peer review and recognizes attorneys in a wide variety of practice areas throughout the nation. Wilson Elser attorneys included on the 2027 list: Albany, NY Kadeem Wolliaston - Associate Atlanta, GA Geoffrey F. Calderaro - Of Counsel Carrie B. Davis – Of Counsel Marvis L. Jenkins – Of Counsel  Jessica Johnson – Associate Jason S. Stewart – Partner Jordan E. Wilkinson – Associate Baltimore, MD Zachary Miller – Of Counsel  Birmingham, AL Lauren H. Crossman - Associate Kristin J. Goulart – Associate Boston, MA Jeb S. Penka – Of Counsel Charlotte, NC Michele L. Livingstone – Associate  Chicago, IL  Justin Dobek – Partner  Dallas, TX Joshua Hamm ‒ Of Counsel  Detroit, MI  Aleasha L. Taweel – Of Counsel  Houston, TX Lina Al-Salim ‒ Of Counsel Daniel O. Basham ‒ Associate Cameron J. Keener ‒ Associate Teylor Mark ‒ Of Counsel Randall L. Ordones – Associate Nadia F. Savo – Associate  Jackson, MS Ericson W. Enger – Associate  Las Vegas, NV Patrick O. Tarzi – Associate Los Angeles, CA Celeena B. Pompeo – Partner Sallia R. Wilkins – Associate Louisville, KY  Samuel E.T. Jones – Associate Kansas City, KS  Alexandra Speakar ‒ Associate McLean, VA Christina M. Heischmidt – Partner Miami, FL Dakeitha S. Haynes ‒ Associate Christopher W. Lee ‒ Of Counsel Maria Papasakelariou ‒ Of Counsel Milwaukee, WI Raven R. Jelinske – Associate Alan J. Mazzulla – Associate  New Orleans, LA Deandra N. De Napoli ‒ Associate Gabriel G. Silva ‒ Associate New York, NY  Robert W. Berbenich – Partner Evan B. Heckler ‒ Associate Meghan P. Murray – Partner Gene Novak – Of Counsel Angelique Sabia-Candero – Associate  John P. Sovich – Of Counsel James P. Terpak – Associate Orlando, FL Morgan W. Bates – Associate  Michelle Bedoya – Of Counsel Suzanne Kersh – Of Counsel  Tiffany M. Miles – Of Counsel Philadelphia, PA Jared M. Smith – Of Counsel  Portland, OR Elizabeth Elkington – Of Counsel  San Diego, CA Cynthia A. Arce – Of Counsel San Francisco, CA Robert L. Altomare – Associate Kendra L. Tietjen – Of Counsel Stamford, CT Casey C. Miller – Associate St. Louis, MO  Theodore G. Hughes IV – Associate Washington, DC  Ryan M. Duffy – Partner  West Palm Beach, FL Alexis Lezama – Associate White Plains, NY  Nicole Holland – Partner Valerie A. Ruocco ‒ Of Counsel Scott Wenzel – Of Counsel

Jana Slavina Farmer (Partner-White Plains, NY) and Lioba Bakker (Associate-Los Angeles, CA) authored the article “Variety Media: The Appeal That Could Decide Whether CIPA Applies to Website Technologies,” appearing in the August 17, 2026, edition of the Daily Journal. The article analyzes the application of the 1967 California Invasion of Privacy Act (CIPA) to modern website-tracking technologies and examines the potential legal impact of the pending appellate decision in Variety Media, LLC v. Superior Court on digital business liability and online privacy enforcement. The case concerns whether cookies, pixels, analytics tools, and other technologies that collect IP addresses, device identifiers, URLs, and related metadata constitute prohibited pen registers or trap-and-trace devices under CIPA, a decision that “could affect website operators across media, retail, technology, and e-commerce.” The authors explain that the case arises amid a growing wave of CIPA litigation that has produced “inconsistent trial court decisions, increased settlement pressure, and mounting uncertainty” for businesses operating websites in California. The article further highlights the practical tension between CIPA and California’s modern privacy framework, particularly the California Consumer Privacy Act (CCPA), which expressly regulates many of the same online technologies. Jana and Lioba characterize the pending matter as potentially providing “much-needed appellate guidance” in an area that has generated substantial litigation but little controlling California authority. Oral argument is scheduled for August 25, 2026. 

Joe Baiocco (Partner-White Plains, NY) will speak on August 26, 2026, at the Cottingham & Butler Transportation Summit. He will discuss the methods used by organized fraud rings, including how their schemes work, and the operational strategies transportation carriers can implement to avoid becoming the next "nuclear" verdict headline.

Kristen A. Carroll (Partner-New York, NY) obtained summary judgment in the Supreme Court of the State of New York, New York County, on behalf of Wilson Elser’s client, a real estate investment company. In this premises liability case, the plaintiff allegedly fell from a riser step located on the first floor inside the defendant retailer’s unit. The plaintiff’s complaint alleged that our client and other defendants negligently maintained the unit. Kristen moved to dismiss the complaint, arguing that our client was an out-of-possession landlord with no duty to maintain the area where the plaintiff fell. She further demonstrated that the plaintiff’s expert engineer’s report submitted in opposition to the motion was unsworn, inadmissible hearsay, and insufficient to raise a triable issue of fact. The court concurred and, given its finding in our client’s favor on liability, did not need to reach the issue of indemnification against the defendant retailer. Accordingly, the court granted Kristen’s motion in full and dismissed the plaintiff’s complaint. Wilson Elser will file an order with notice of entry of this decision, allowing the plaintiff 30 days to file a notice of appeal.

Edward O'Brien (Partner-Louisville, KY), Kim Koehler (Partner-Denver, CO), and Jason Melichar (Partner-Denver, CO) secured a significant appellate victory for Wilson Elser’s attorney client when the Colorado Court of Appeals affirmed the probate court’s order awarding the client more than $400,000 in attorney fees and costs following an earlier defense verdict. The appeal arose from a professional liability action brought by a former protected person against Wilson Elser’s client, who the court had appointed as a limited conservator after the protected person lost more than $1 million to online romance scams. After the conservatorship was terminated, the former protected person pursued a Petition for Surcharge alleging that our client had breached her fiduciary duty and seeking substantial damages. Kim and Jason successfully defended the client at a week-long bench trial, after which the probate court found that the petitioner failed to prove any fiduciary-duty breach and entered judgment for the client. As the prevailing party under the applicable probate framework, the client was awarded more than $400,000 in fees and costs. On appeal, the petitioner challenged the compensation and costs award, arguing that she was entitled to a hearing on its reasonableness and that the award violated various Colorado probate statutes. The Colorado Court of Appeals rejected those arguments and affirmed the probate court’s order in full. The court held that the petitioner waived her argument that a hearing was mandatory under section 15-10-604(4), C.R.S., because she had not raised that statutory basis in the probate court, instead asking only for a discretionary hearing under a different rule. The court also rejected her statutory challenge to the award of fees and costs for litigating the surcharge and discharge-compensation petitions, holding that sections 15-10-602(1) and 15-10-602(6), C.R.S., are stand-alone provisions and that a fiduciary’s good-faith prosecution or defense of a proceeding is compensable under section 15-10-602(6) regardless of whether the same litigation also qualifies as services rendered on behalf of the estate under section 15-10-602(1). The court declined to reach several remaining arguments because they were insufficiently developed, including challenges concerning alleged opposition to removal, testimony at a termination hearing, post-termination services, and the scope of the conservator’s authority after a removal petition. The decision preserves the probate court’s substantial fee and cost award and provides the client another important victory in the trial and appellate proceedings. Edward’s work on the appeal was pivotal in protecting the client’s significant judgment for fees and costs and allowing her to proceed with collection, absent further review.

Denise M. Motta (Of Counsel-Louisville, KY), a mediator and arbitrator with the American Arbitration Association and vice chair of the Kentucky Bar Association's Alternative Dispute Resolution (ADR) Section, will present "Back to the Future: Key Components for a Successful Mediation" at each stop of the Kentucky Bar Association's seven-part Kentucky Law Update CLE series. In her presentation, Denise will share insights on ten practical strategies for advocates and neutrals to foster productive settlement dialogue at mediation and achieve successful resolutions. She will also discuss the critical roles that preparation, negotiation strategy, and mediator selection play in maximizing the likelihood of a successful outcome. The complimentary CLE program for Kentucky attorneys begins in Owensboro, Kentucky, on August 27, 2026, and continues at locations across the state through December 3, 2026. Beyond her work with the Kentucky Bar Association, Denise serves as chair of DRI's ADR Committee and vice chair of the ABA's Tort & Insurance Practice Section ADR Committee.

Gutierrez-Zacatenco v. Herrera was an admitted-liability rear-end motor vehicle accident that was tried and produced a $5.5 million-plus judgment. Nevada’s Supreme Court vacated that judgment and remanded the case for a new trial because the district court improperly excluded medical records from a similar spinal injury Herrera sustained in another motor vehicle accident just two years earlier. During discovery, Herrera produced those records. The defense medical experts reviewed and relied upon them to conclude that her medical complaints were related to the earlier accident. At trial, Herrera moved to exclude the earlier records, arguing that the defense: (1) could not authenticate them and (2) did not include them in mandatory pretrial disclosures. The Supreme Court reversed. First, the district court erred by concluding the records were not authenticated. The district court ruled that the defense had not authenticated them via NRS 52.325. The Supreme Court concluded this was erroneous because NRS 52.325 applies only to medical records obtained via subpoena. The defendant had not obtained the records via subpoena, so NRS 52.325 was inapplicable. Instead, the authentication requirements of NRS 52.015 applied, and the records met those requirements. First, Herrera had produced the records herself and did not dispute that they accurately reflected medical care she received two years before the subject accident. The documents also bore markings giving the indicia of authenticity. Finally, a custodian of records affidavit confirmed their authenticity. Herrera asserted the records were properly excluded because the record of her final treatment date was missing, but she created this problem. As the Court noted, “Herrera produced an incomplete copy of her 2017 medical records in discovery, then parlayed that incomplete disclosure into an exclusionary ruling that advantaged her.” The missing record was relevant to weight, but it did not render the produced records inauthentic. Second, the district court alternatively excluded the records because the defendant had not adequately designated them under NRCP 16.1(a)(1). The Supreme Court disagreed, holding that NRCP 16.1(a)(1) “does not require [a] party to identify records that they only obtained through the opposing party’s discovery production.” The Supreme Court agreed with the district court that the defendant’s “broad, catchall descriptions” in a pretrial disclosure did not satisfy NRCP 16.1(a)(3). However, this error was harmless. Herrera was aware throughout the case that the defense relied upon the 2017 medical records, which provided sufficient notice. Ultimately, excluding the 2017 medical records affected the defendant’s substantial rights because a different result might reasonably have been reached had the records been admitted. Accordingly, the case was remanded for a new trial. Key Takeaways Although Gutierrez-Zacatenco may appear to be a dry, technical decision, its core concepts are fundamental to nearly any case: What documentation do you have, and can you authenticate it? Even the strongest defense—that the plaintiff sustained the same injury two years earlier—is worthless if the supporting evidence cannot be authenticated and admitted at trial.

Only the top 5.3 percent of all practicing lawyers in the nation are selected by their peers for inclusion on The Best Lawyers in America® list. This year, 123 Wilson Elser attorneys were so honored: Birmingham, AL David Hall – Partner David A. Lee ‒ Of Counsel William L. Waudby – Partner Phoenix, AZ Brian Cieniawski – Of Counsel  Los Angeles, CA E. Paul Dougherty Jr. – Partner David S. Eisen – Senior Counsel Diana M. Estrada – Partner William Tolin Gay – Of Counsel Linda Tai Hoshide – Partner Gregory K. Lee – Partner David M. Morrow – Partner Michelle R. Press – Partner David Simantob – Partner Tae S. Um – Partner San Diego, CA Carole J. Buckner – Partner Bruno W. Katz – Partner Patrick J. Kearns – Partner Michael P. McCloskey – Senior Counsel San Francisco, CA William M. Hake – Senior Counsel John H. Podesta – Partner Julie A. Torres – Partner Yakov P. Wiegmann – Partner Denver, CO Emily L. P. Aguero – Partner Jason D. Melichar – Partner Ryan A. Williams – Partner Jane E. Young – Partner  Christopher D. Yvars – Partner Stamford, CT Stephen P. Brown ‒ Partner Douglas M. Connors ‒ Partner Eric W.F. Niederer ‒ Partner Washington, D.C. Robert W. Goodson – Senior Counsel Catherine A. Hanrahan – Partner  Miami, FL  Alan Fiedel – Partner Tanya I. Suarez – Partner Gustavo A. Martinez Tristani – Partner Orlando, FL John Y. Benford – Partner Alicia M. Caridi – Of Counsel Jaime B. Eagan – Of Counsel Nicholas D. Freeman – Partner James M. Kloss – Partner  Leia Leitner – Of Counsel Sean M. McDonough – Partner  Noelle K. Sheehan – Partner  Tampa, FL Michelle Sabin – Of Counsel  Atlanta, GA Vonnetta L. Benjamin – Of Counsel  Allison M. Escott ‒ Of Counsel Matthew Foree – Of Counsel  Parks K. Stone – Partner Chicago, IL  Andrew J. Albright – Partner Michael J. Duffy – Partner Melissa A. Murphy-Petros – Of Counsel Indianapolis, IN Jarrod A. Malone – Partner Louisville, KY James M. Burd – Partner Scott A. Davidson – Of Counsel  Marcia L. Pearson – Partner  Christopher M. Piekarski – Of Counsel  Lynsie Gaddis Rust – Partner  New Orleans, LA Michael Harowski – Partner  H. Jake Rodriguez – Partner Boston, MA  Christopher P. Flanagan – Partner Christine A. Knipper – Partner George C. Rockas – Partner Baltimore, MD Angela W. Russell – Partner  Detroit, MI William S. Cook – Partner Kevin M. Mulvaney – Partner  St. Louis, MO Carolyn M. Husmann – Of Counsel  Daniel E. Tranen – Partner  Jackson, MS John S. Graham – Of Counsel William M. Vines – Of Counsel Charlotte, NC Gerald A. Stein II – Of Counsel  Madison, NJ Maxwell L. Billek – Partner Anne M. Dalena – Of Counsel  Andrew M. Epstein – Partner Peter Espey ‒ Of Counsel Roger R. Gottilla – Senior Counsel  Joseph T. Hanlon – Partner Barbara Hopkinson Kelly – Partner Kurt W. Krauss – Partner William D. Lipkind – Partner  Carolyn F. O’Conner – Partner Joanna Piorek – Partner Thomas F. Quinn – Senior Counsel  James B. Sharp – Of Counsel Katherine E. Tammaro – Partner Sheila Tarabour – Partner Michael P. Turner – Senior Counsel  Mark P. Vespole – Partner  Las Vegas, NV Karen L. Bashor – Partner Michael Lowry – Partner  Sheri Thome – Partner Albany, NY Peter A. Lauricella – Partner Christopher Martin – Partner  New York, NY Jeffrey B. Araten – Partner Eugene T. Boulé – Partner Joseph L. Francoeur – Partner Allison R. Graffeo – Partner Robin N. Gregory – Senior Counsel  Ellen Greiper – Partner  Ashley V. Humphries – Partner  Paul Karp – Partner  Guy J. Levasseur – Partner Frances Malfa – Partner  Stuart A. Miller – Partner  Richard Ng – Partner Lois K. Ottombrino – Senior Counsel Jay A. Potter – Partner  Ricki E. Roer – Senior Counsel  Dov G. Sternberg – Partner Scott H. Stopnik – Partner White Plains, NY  Alan B. Friedberg – Senior Counsel  Michael F. Grady – Partner Jacqueline Hattar – Partner Patricia Lacy – Partner Philip Quaranta – Partner Thomas W. Tobin – Senior Counsel  Portland, OR Michael T. Belisle – Partner  Lloyd Bernstein – Partner  Matthew C. Casey – Of Counsel George S. Pitcher – Partner  Peder A. Rigsby – Partner  Philadelphia, PA  Brian F. Breen – Partner  John T. Donovan – Partner  William F. McDevitt – Partner  Kathleen D. Wilkinson – Senior Counsel  Dallas, TX Craig Brinker – Of Counsel  J. Price Collins – Partner  Ashley F. Gilmore ‒ Partner Jennafer G. Groswith ‒ Partner Stephani R. Johnson – Partner Jarad L. Kent – Partner  James S. Kiser – Of Counsel Jennifer Martin – Partner R. Douglas Noah, Jr. – Partner  Kimberly A. Wilson – Partner  Houston, TX  Kent M. Adams – Senior Counsel Christina C. Huston – Of Counsel Lori D. Proctor – Partner  John R. Sheppard – Partner  Colin S. Sherrod – Of Counsel  Ronald L. White – Of Counsel  McLean, VA Kathryn Anne Grace – Partner  Matthew W. Lee – Partner Peter M. Moore – Partner Jason R. Waters – Partner  Seattle, WA Nicole Brodie Jackson – Partner Erin P. Fraser – Partner E. Penn Gheen – Of Counsel Lorianne Conklin Hanson – Partner Rachel Tallon Reynolds – Partner Evelyn E. Winters – Partner Milwaukee, WI Sarah Fry Bruch – Of Counsel William J. Katt – Senior Counsel  John P. Loringer – Partner 

For businesses operating websites in California, a pending appellate case may soon reshape the legal landscape. Variety Media, LLC v. Superior Court, now before California’s Second District Court of Appeal, could produce the first published California appellate decision addressing whether the California Invasion of Privacy Act (CIPA) applies to commonplace website technologies, including cookies, analytics tools, and advertising pixels. Why This Case Matters CIPA was enacted to address telephonic wiretapping, but plaintiffs across California have increasingly alleged that routine online tools (e.g., cookies, pixels, analytics platforms, advertising technologies, and fraud-prevention services) constitute unlawful pen registers or trap-and-trace devices under the statute. These claims have generated lawsuits, demand letters, arbitrations, and substantial settlement pressure attributable to CIPA’s statutory damages provisions. The irony is significant: the very technologies enabling privacy compliance, including preference management tools, consent mechanisms, and privacy notices, are themselves being challenged under CIPA. Unlike the California Consumer Privacy Act (CCPA), which includes detailed regulations addressing data sharing through website cookies, CIPA offers no roadmap for how businesses can deliver website functionality while avoiding liability. California trial courts have reached divergent conclusions, federal district court decisions also remain inconsistent, and businesses devote substantial resources to compliance efforts without a clear standard to guide them. The Court of Appeal’s decision to exercise original writ jurisdiction, rather than awaiting a traditional appeal following final judgment, underscores the case’s significance. At present, the appellate record contains 17 substantive briefs from the parties and amici, including business associations, technology companies, media organizations, privacy advocates, civil liberties groups, and academic institutions. The Legal Framework at Issue Under CIPA, a pen register is a device that records or decodes dialing, routing, addressing, or signaling information, while a trap-and-trace device captures the incoming equivalent. The central dispute in Variety Media is whether information exchanged between a user’s device and a website, such as IP addresses, device identifiers, URLs, and metadata, falls within these statutory definitions. The appeal raises interconnected questions: Does CIPA Section 638.51 reach routine software processes on commercial websites, or does it remain confined to law enforcement surveillance? Even if the statute can apply to internet activity, do the specific trackers at issue constitute “pen registers” under Section 638.50(b), or are they excluded as “tracking devices” under Section 629.51(a)(3)? What role should the federal Pen Register Act play in construing CIPA? And should CIPA be interpreted narrowly given California’s broader privacy regulatory landscape, including the CCPA? The Competing Arguments Appellant Variety contends that CIPA’s text, structure, and legislative history demonstrate the pen register provisions were designed to regulate telephonic surveillance rather than routine website communications. From Variety’s perspective, extending those provisions to common website technologies would expand CIPA beyond its intended scope and expose businesses to liability for ordinary internet operations. Sean Rose, the plaintiff below and the real party in interest on the appeal, advances the contrary position, arguing that CIPA is technology-neutral and applies whenever challenged technologies perform functions falling within its statutory definitions, irrespective of whether the Legislature contemplated internet communications. Under this reading, IP addresses, device identifiers, routing information, and metadata may qualify as CIPA-regulated information. The parties further disagree on the relevance of federal law. Variety maintains that Congress amended the federal Pen Register Act to address internet communications while California made no corresponding amendment to CIPA and that online privacy is governed by statutes, such as the CCPA. Rose counters that CIPA’s existing language already encompasses evolving technologies, that amendments to federal law do not constrain California’s interpretation of its own statute, and that the CCPA complements rather than supplants CIPA. Perspectives from Interested Parties The amicus briefs expand the scope of the appeal. Business organizations, including the U.S. Chamber of Commerce, Alliance for Legal Fairness, California Chamber of Commerce, California Retailers Association, Retail Litigation Center, and Association of Corporate Counsel, concentrate on the practical ramifications of applying CIPA to routine website operations. As the Association of Corporate Counsel observes, each new website tool that becomes a litigation target compels businesses to spend “countless hours and resources guessing at how best to avoid CIPA liability—while still maintaining CCPA compliance.” A separate brief filed jointly by Asana, Eventbrite, GoPro, ClickUp, Reddit, the Software & Information Industry Association, MasterClass, and Yelp supplies technical context on how IP addresses, cookies, pixels, and device data support website functionality, cybersecurity, fraud prevention, and analytics. Additional amici, including News/Media Alliance, Digital Content Next, the Movement for an Open Web, and the Southwestern Law School Amicus Project, address implications for digital publishers and CIPA’s statutory history. The amici supporting Rose (i.e., the ACLU of Northern California, ACLU of Southern California, and Oakland Privacy) argue that metadata and browsing information can reveal substantial details about individuals’ online activity, that the CCPA complements rather than supersedes CIPA, and that privacy protections should evolve alongside technology. The Court’s Supplemental Questions In May 2026, rather than proceeding directly to oral argument, the Court directed supplemental briefing on several questions. The Court inquired about the relationship between CIPA and the federal Pen Register Act; specifically, whether a California company could violate the federal statute by collecting internet metadata even if California’s pen register provisions were interpreted more narrowly, and whether CIPA should be construed to avoid conflict with federal law. The Court also asked whether the specific tracking technologies at issue (e.g., cookies that collect IP addresses, browser type, and similar device-level metadata) fall within CIPA’s definitions or are excluded as “tracking devices” under Penal Code Section 629.51. Finally, it questioned whether the pen register provisions apply only to communications containing “content,” and whether merely visiting a website constitutes a “communication” within the meaning of the statute. While the parties largely adhered to their original positions in supplemental briefing, Variety reiterated that Congress amended the federal Pen Register Act for internet communications while California made no comparable amendments to CIPA. Rose responded that CIPA’s existing language already reaches evolving technologies. The Court’s questions do not signal how it will ultimately decide, but they illuminate the issues likely to receive the most attention at oral argument. What Comes Next With briefing concluded, attention turns to the oral argument scheduled for August 25, 2026. Although the parties and amici disagree on CIPA’s application, they largely concur on how the underlying technologies function. The central questions have crystallized: whether CIPA reaches internet communications, whether the challenged tools fall within its definitions, and how CIPA should be interpreted alongside the CCPA. In summary, the disagreement transcends statutory interpretation. Variety and its supporters stress statutory limitations and potential business consequences, whereas Rose and his supporters emphasize consumer privacy and the imperative for CIPA’s protections to keep pace with technological change. The outcome could determine whether routine website data practices fall under CIPA’s surveillance provisions, California’s contemporary privacy framework, or both. Our next article will provide firsthand coverage from the courtroom, examining the panel’s questions, the parties’ responses, and what the argument reveals about how the Court may resolve this closely watched appeal.

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

Attorneys named among The Best Lawyers in America® Ones to Watch™ have demonstrated professional excellence and achieved impactful results in and out of the courtroom. Focused on lawyers who have been in private practice for 5 to 10 years, the honor is based on peer review and recognizes attorneys in a wide variety of practice areas throughout the nation. Wilson Elser attorneys included on the 2027 list: Albany, NY Kadeem Wolliaston - Associate Atlanta, GA Geoffrey F. Calderaro - Of Counsel Carrie B. Davis – Of Counsel Marvis L. Jenkins – Of Counsel  Jessica Johnson – Associate Jason S. Stewart – Partner Jordan E. Wilkinson – Associate Baltimore, MD Zachary Miller – Of Counsel  Birmingham, AL Lauren H. Crossman - Associate Kristin J. Goulart – Associate Boston, MA Jeb S. Penka – Of Counsel Charlotte, NC Michele L. Livingstone – Associate  Chicago, IL  Justin Dobek – Partner  Dallas, TX Joshua Hamm ‒ Of Counsel  Detroit, MI  Aleasha L. Taweel – Of Counsel  Houston, TX Lina Al-Salim ‒ Of Counsel Daniel O. Basham ‒ Associate Cameron J. Keener ‒ Associate Teylor Mark ‒ Of Counsel Randall L. Ordones – Associate Nadia F. Savo – Associate  Jackson, MS Ericson W. Enger – Associate  Las Vegas, NV Patrick O. Tarzi – Associate Los Angeles, CA Celeena B. Pompeo – Partner Sallia R. Wilkins – Associate Louisville, KY  Samuel E.T. Jones – Associate Kansas City, KS  Alexandra Speakar ‒ Associate McLean, VA Christina M. Heischmidt – Partner Miami, FL Dakeitha S. Haynes ‒ Associate Christopher W. Lee ‒ Of Counsel Maria Papasakelariou ‒ Of Counsel Milwaukee, WI Raven R. Jelinske – Associate Alan J. Mazzulla – Associate  New Orleans, LA Deandra N. De Napoli ‒ Associate Gabriel G. Silva ‒ Associate New York, NY  Robert W. Berbenich – Partner Evan B. Heckler ‒ Associate Meghan P. Murray – Partner Gene Novak – Of Counsel Angelique Sabia-Candero – Associate  John P. Sovich – Of Counsel James P. Terpak – Associate Orlando, FL Morgan W. Bates – Associate  Michelle Bedoya – Of Counsel Suzanne Kersh – Of Counsel  Tiffany M. Miles – Of Counsel Philadelphia, PA Jared M. Smith – Of Counsel  Portland, OR Elizabeth Elkington – Of Counsel  San Diego, CA Cynthia A. Arce – Of Counsel San Francisco, CA Robert L. Altomare – Associate Kendra L. Tietjen – Of Counsel Stamford, CT Casey C. Miller – Associate St. Louis, MO  Theodore G. Hughes IV – Associate Washington, DC  Ryan M. Duffy – Partner  West Palm Beach, FL Alexis Lezama – Associate White Plains, NY  Nicole Holland – Partner Valerie A. Ruocco ‒ Of Counsel Scott Wenzel – Of Counsel

Jana Slavina Farmer (Partner-White Plains, NY) and Lioba Bakker (Associate-Los Angeles, CA) authored the article “Variety Media: The Appeal That Could Decide Whether CIPA Applies to Website Technologies,” appearing in the August 17, 2026, edition of the Daily Journal. The article analyzes the application of the 1967 California Invasion of Privacy Act (CIPA) to modern website-tracking technologies and examines the potential legal impact of the pending appellate decision in Variety Media, LLC v. Superior Court on digital business liability and online privacy enforcement. The case concerns whether cookies, pixels, analytics tools, and other technologies that collect IP addresses, device identifiers, URLs, and related metadata constitute prohibited pen registers or trap-and-trace devices under CIPA, a decision that “could affect website operators across media, retail, technology, and e-commerce.” The authors explain that the case arises amid a growing wave of CIPA litigation that has produced “inconsistent trial court decisions, increased settlement pressure, and mounting uncertainty” for businesses operating websites in California. The article further highlights the practical tension between CIPA and California’s modern privacy framework, particularly the California Consumer Privacy Act (CCPA), which expressly regulates many of the same online technologies. Jana and Lioba characterize the pending matter as potentially providing “much-needed appellate guidance” in an area that has generated substantial litigation but little controlling California authority. Oral argument is scheduled for August 25, 2026. 

Joe Baiocco (Partner-White Plains, NY) will speak on August 26, 2026, at the Cottingham & Butler Transportation Summit. He will discuss the methods used by organized fraud rings, including how their schemes work, and the operational strategies transportation carriers can implement to avoid becoming the next "nuclear" verdict headline.

Kristen A. Carroll (Partner-New York, NY) obtained summary judgment in the Supreme Court of the State of New York, New York County, on behalf of Wilson Elser’s client, a real estate investment company. In this premises liability case, the plaintiff allegedly fell from a riser step located on the first floor inside the defendant retailer’s unit. The plaintiff’s complaint alleged that our client and other defendants negligently maintained the unit. Kristen moved to dismiss the complaint, arguing that our client was an out-of-possession landlord with no duty to maintain the area where the plaintiff fell. She further demonstrated that the plaintiff’s expert engineer’s report submitted in opposition to the motion was unsworn, inadmissible hearsay, and insufficient to raise a triable issue of fact. The court concurred and, given its finding in our client’s favor on liability, did not need to reach the issue of indemnification against the defendant retailer. Accordingly, the court granted Kristen’s motion in full and dismissed the plaintiff’s complaint. Wilson Elser will file an order with notice of entry of this decision, allowing the plaintiff 30 days to file a notice of appeal.

Edward O'Brien (Partner-Louisville, KY), Kim Koehler (Partner-Denver, CO), and Jason Melichar (Partner-Denver, CO) secured a significant appellate victory for Wilson Elser’s attorney client when the Colorado Court of Appeals affirmed the probate court’s order awarding the client more than $400,000 in attorney fees and costs following an earlier defense verdict. The appeal arose from a professional liability action brought by a former protected person against Wilson Elser’s client, who the court had appointed as a limited conservator after the protected person lost more than $1 million to online romance scams. After the conservatorship was terminated, the former protected person pursued a Petition for Surcharge alleging that our client had breached her fiduciary duty and seeking substantial damages. Kim and Jason successfully defended the client at a week-long bench trial, after which the probate court found that the petitioner failed to prove any fiduciary-duty breach and entered judgment for the client. As the prevailing party under the applicable probate framework, the client was awarded more than $400,000 in fees and costs. On appeal, the petitioner challenged the compensation and costs award, arguing that she was entitled to a hearing on its reasonableness and that the award violated various Colorado probate statutes. The Colorado Court of Appeals rejected those arguments and affirmed the probate court’s order in full. The court held that the petitioner waived her argument that a hearing was mandatory under section 15-10-604(4), C.R.S., because she had not raised that statutory basis in the probate court, instead asking only for a discretionary hearing under a different rule. The court also rejected her statutory challenge to the award of fees and costs for litigating the surcharge and discharge-compensation petitions, holding that sections 15-10-602(1) and 15-10-602(6), C.R.S., are stand-alone provisions and that a fiduciary’s good-faith prosecution or defense of a proceeding is compensable under section 15-10-602(6) regardless of whether the same litigation also qualifies as services rendered on behalf of the estate under section 15-10-602(1). The court declined to reach several remaining arguments because they were insufficiently developed, including challenges concerning alleged opposition to removal, testimony at a termination hearing, post-termination services, and the scope of the conservator’s authority after a removal petition. The decision preserves the probate court’s substantial fee and cost award and provides the client another important victory in the trial and appellate proceedings. Edward’s work on the appeal was pivotal in protecting the client’s significant judgment for fees and costs and allowing her to proceed with collection, absent further review.

Denise M. Motta (Of Counsel-Louisville, KY), a mediator and arbitrator with the American Arbitration Association and vice chair of the Kentucky Bar Association's Alternative Dispute Resolution (ADR) Section, will present "Back to the Future: Key Components for a Successful Mediation" at each stop of the Kentucky Bar Association's seven-part Kentucky Law Update CLE series. In her presentation, Denise will share insights on ten practical strategies for advocates and neutrals to foster productive settlement dialogue at mediation and achieve successful resolutions. She will also discuss the critical roles that preparation, negotiation strategy, and mediator selection play in maximizing the likelihood of a successful outcome. The complimentary CLE program for Kentucky attorneys begins in Owensboro, Kentucky, on August 27, 2026, and continues at locations across the state through December 3, 2026. Beyond her work with the Kentucky Bar Association, Denise serves as chair of DRI's ADR Committee and vice chair of the ABA's Tort & Insurance Practice Section ADR Committee.

Gutierrez-Zacatenco v. Herrera was an admitted-liability rear-end motor vehicle accident that was tried and produced a $5.5 million-plus judgment. Nevada’s Supreme Court vacated that judgment and remanded the case for a new trial because the district court improperly excluded medical records from a similar spinal injury Herrera sustained in another motor vehicle accident just two years earlier. During discovery, Herrera produced those records. The defense medical experts reviewed and relied upon them to conclude that her medical complaints were related to the earlier accident. At trial, Herrera moved to exclude the earlier records, arguing that the defense: (1) could not authenticate them and (2) did not include them in mandatory pretrial disclosures. The Supreme Court reversed. First, the district court erred by concluding the records were not authenticated. The district court ruled that the defense had not authenticated them via NRS 52.325. The Supreme Court concluded this was erroneous because NRS 52.325 applies only to medical records obtained via subpoena. The defendant had not obtained the records via subpoena, so NRS 52.325 was inapplicable. Instead, the authentication requirements of NRS 52.015 applied, and the records met those requirements. First, Herrera had produced the records herself and did not dispute that they accurately reflected medical care she received two years before the subject accident. The documents also bore markings giving the indicia of authenticity. Finally, a custodian of records affidavit confirmed their authenticity. Herrera asserted the records were properly excluded because the record of her final treatment date was missing, but she created this problem. As the Court noted, “Herrera produced an incomplete copy of her 2017 medical records in discovery, then parlayed that incomplete disclosure into an exclusionary ruling that advantaged her.” The missing record was relevant to weight, but it did not render the produced records inauthentic. Second, the district court alternatively excluded the records because the defendant had not adequately designated them under NRCP 16.1(a)(1). The Supreme Court disagreed, holding that NRCP 16.1(a)(1) “does not require [a] party to identify records that they only obtained through the opposing party’s discovery production.” The Supreme Court agreed with the district court that the defendant’s “broad, catchall descriptions” in a pretrial disclosure did not satisfy NRCP 16.1(a)(3). However, this error was harmless. Herrera was aware throughout the case that the defense relied upon the 2017 medical records, which provided sufficient notice. Ultimately, excluding the 2017 medical records affected the defendant’s substantial rights because a different result might reasonably have been reached had the records been admitted. Accordingly, the case was remanded for a new trial. Key Takeaways Although Gutierrez-Zacatenco may appear to be a dry, technical decision, its core concepts are fundamental to nearly any case: What documentation do you have, and can you authenticate it? Even the strongest defense—that the plaintiff sustained the same injury two years earlier—is worthless if the supporting evidence cannot be authenticated and admitted at trial.

Only the top 5.3 percent of all practicing lawyers in the nation are selected by their peers for inclusion on The Best Lawyers in America® list. This year, 123 Wilson Elser attorneys were so honored: Birmingham, AL David Hall – Partner David A. Lee ‒ Of Counsel William L. Waudby – Partner Phoenix, AZ Brian Cieniawski – Of Counsel  Los Angeles, CA E. Paul Dougherty Jr. – Partner David S. Eisen – Senior Counsel Diana M. Estrada – Partner William Tolin Gay – Of Counsel Linda Tai Hoshide – Partner Gregory K. Lee – Partner David M. Morrow – Partner Michelle R. Press – Partner David Simantob – Partner Tae S. Um – Partner San Diego, CA Carole J. Buckner – Partner Bruno W. Katz – Partner Patrick J. Kearns – Partner Michael P. McCloskey – Senior Counsel San Francisco, CA William M. Hake – Senior Counsel John H. Podesta – Partner Julie A. Torres – Partner Yakov P. Wiegmann – Partner Denver, CO Emily L. P. Aguero – Partner Jason D. Melichar – Partner Ryan A. Williams – Partner Jane E. Young – Partner  Christopher D. Yvars – Partner Stamford, CT Stephen P. Brown ‒ Partner Douglas M. Connors ‒ Partner Eric W.F. Niederer ‒ Partner Washington, D.C. Robert W. Goodson – Senior Counsel Catherine A. Hanrahan – Partner  Miami, FL  Alan Fiedel – Partner Tanya I. Suarez – Partner Gustavo A. Martinez Tristani – Partner Orlando, FL John Y. Benford – Partner Alicia M. Caridi – Of Counsel Jaime B. Eagan – Of Counsel Nicholas D. Freeman – Partner James M. Kloss – Partner  Leia Leitner – Of Counsel Sean M. McDonough – Partner  Noelle K. Sheehan – Partner  Tampa, FL Michelle Sabin – Of Counsel  Atlanta, GA Vonnetta L. Benjamin – Of Counsel  Allison M. Escott ‒ Of Counsel Matthew Foree – Of Counsel  Parks K. Stone – Partner Chicago, IL  Andrew J. Albright – Partner Michael J. Duffy – Partner Melissa A. Murphy-Petros – Of Counsel Indianapolis, IN Jarrod A. Malone – Partner Louisville, KY James M. Burd – Partner Scott A. Davidson – Of Counsel  Marcia L. Pearson – Partner  Christopher M. Piekarski – Of Counsel  Lynsie Gaddis Rust – Partner  New Orleans, LA Michael Harowski – Partner  H. Jake Rodriguez – Partner Boston, MA  Christopher P. Flanagan – Partner Christine A. Knipper – Partner George C. Rockas – Partner Baltimore, MD Angela W. Russell – Partner  Detroit, MI William S. Cook – Partner Kevin M. Mulvaney – Partner  St. Louis, MO Carolyn M. Husmann – Of Counsel  Daniel E. Tranen – Partner  Jackson, MS John S. Graham – Of Counsel William M. Vines – Of Counsel Charlotte, NC Gerald A. Stein II – Of Counsel  Madison, NJ Maxwell L. Billek – Partner Anne M. Dalena – Of Counsel  Andrew M. Epstein – Partner Peter Espey ‒ Of Counsel Roger R. Gottilla – Senior Counsel  Joseph T. Hanlon – Partner Barbara Hopkinson Kelly – Partner Kurt W. Krauss – Partner William D. Lipkind – Partner  Carolyn F. O’Conner – Partner Joanna Piorek – Partner Thomas F. Quinn – Senior Counsel  James B. Sharp – Of Counsel Katherine E. Tammaro – Partner Sheila Tarabour – Partner Michael P. Turner – Senior Counsel  Mark P. Vespole – Partner  Las Vegas, NV Karen L. Bashor – Partner Michael Lowry – Partner  Sheri Thome – Partner Albany, NY Peter A. Lauricella – Partner Christopher Martin – Partner  New York, NY Jeffrey B. Araten – Partner Eugene T. Boulé – Partner Joseph L. Francoeur – Partner Allison R. Graffeo – Partner Robin N. Gregory – Senior Counsel  Ellen Greiper – Partner  Ashley V. Humphries – Partner  Paul Karp – Partner  Guy J. Levasseur – Partner Frances Malfa – Partner  Stuart A. Miller – Partner  Richard Ng – Partner Lois K. Ottombrino – Senior Counsel Jay A. Potter – Partner  Ricki E. Roer – Senior Counsel  Dov G. Sternberg – Partner Scott H. Stopnik – Partner White Plains, NY  Alan B. Friedberg – Senior Counsel  Michael F. Grady – Partner Jacqueline Hattar – Partner Patricia Lacy – Partner Philip Quaranta – Partner Thomas W. Tobin – Senior Counsel  Portland, OR Michael T. Belisle – Partner  Lloyd Bernstein – Partner  Matthew C. Casey – Of Counsel George S. Pitcher – Partner  Peder A. Rigsby – Partner  Philadelphia, PA  Brian F. Breen – Partner  John T. Donovan – Partner  William F. McDevitt – Partner  Kathleen D. Wilkinson – Senior Counsel  Dallas, TX Craig Brinker – Of Counsel  J. Price Collins – Partner  Ashley F. Gilmore ‒ Partner Jennafer G. Groswith ‒ Partner Stephani R. Johnson – Partner Jarad L. Kent – Partner  James S. Kiser – Of Counsel Jennifer Martin – Partner R. Douglas Noah, Jr. – Partner  Kimberly A. Wilson – Partner  Houston, TX  Kent M. Adams – Senior Counsel Christina C. Huston – Of Counsel Lori D. Proctor – Partner  John R. Sheppard – Partner  Colin S. Sherrod – Of Counsel  Ronald L. White – Of Counsel  McLean, VA Kathryn Anne Grace – Partner  Matthew W. Lee – Partner Peter M. Moore – Partner Jason R. Waters – Partner  Seattle, WA Nicole Brodie Jackson – Partner Erin P. Fraser – Partner E. Penn Gheen – Of Counsel Lorianne Conklin Hanson – Partner Rachel Tallon Reynolds – Partner Evelyn E. Winters – Partner Milwaukee, WI Sarah Fry Bruch – Of Counsel William J. Katt – Senior Counsel  John P. Loringer – Partner 

For businesses operating websites in California, a pending appellate case may soon reshape the legal landscape. Variety Media, LLC v. Superior Court, now before California’s Second District Court of Appeal, could produce the first published California appellate decision addressing whether the California Invasion of Privacy Act (CIPA) applies to commonplace website technologies, including cookies, analytics tools, and advertising pixels. Why This Case Matters CIPA was enacted to address telephonic wiretapping, but plaintiffs across California have increasingly alleged that routine online tools (e.g., cookies, pixels, analytics platforms, advertising technologies, and fraud-prevention services) constitute unlawful pen registers or trap-and-trace devices under the statute. These claims have generated lawsuits, demand letters, arbitrations, and substantial settlement pressure attributable to CIPA’s statutory damages provisions. The irony is significant: the very technologies enabling privacy compliance, including preference management tools, consent mechanisms, and privacy notices, are themselves being challenged under CIPA. Unlike the California Consumer Privacy Act (CCPA), which includes detailed regulations addressing data sharing through website cookies, CIPA offers no roadmap for how businesses can deliver website functionality while avoiding liability. California trial courts have reached divergent conclusions, federal district court decisions also remain inconsistent, and businesses devote substantial resources to compliance efforts without a clear standard to guide them. The Court of Appeal’s decision to exercise original writ jurisdiction, rather than awaiting a traditional appeal following final judgment, underscores the case’s significance. At present, the appellate record contains 17 substantive briefs from the parties and amici, including business associations, technology companies, media organizations, privacy advocates, civil liberties groups, and academic institutions. The Legal Framework at Issue Under CIPA, a pen register is a device that records or decodes dialing, routing, addressing, or signaling information, while a trap-and-trace device captures the incoming equivalent. The central dispute in Variety Media is whether information exchanged between a user’s device and a website, such as IP addresses, device identifiers, URLs, and metadata, falls within these statutory definitions. The appeal raises interconnected questions: Does CIPA Section 638.51 reach routine software processes on commercial websites, or does it remain confined to law enforcement surveillance? Even if the statute can apply to internet activity, do the specific trackers at issue constitute “pen registers” under Section 638.50(b), or are they excluded as “tracking devices” under Section 629.51(a)(3)? What role should the federal Pen Register Act play in construing CIPA? And should CIPA be interpreted narrowly given California’s broader privacy regulatory landscape, including the CCPA? The Competing Arguments Appellant Variety contends that CIPA’s text, structure, and legislative history demonstrate the pen register provisions were designed to regulate telephonic surveillance rather than routine website communications. From Variety’s perspective, extending those provisions to common website technologies would expand CIPA beyond its intended scope and expose businesses to liability for ordinary internet operations. Sean Rose, the plaintiff below and the real party in interest on the appeal, advances the contrary position, arguing that CIPA is technology-neutral and applies whenever challenged technologies perform functions falling within its statutory definitions, irrespective of whether the Legislature contemplated internet communications. Under this reading, IP addresses, device identifiers, routing information, and metadata may qualify as CIPA-regulated information. The parties further disagree on the relevance of federal law. Variety maintains that Congress amended the federal Pen Register Act to address internet communications while California made no corresponding amendment to CIPA and that online privacy is governed by statutes, such as the CCPA. Rose counters that CIPA’s existing language already encompasses evolving technologies, that amendments to federal law do not constrain California’s interpretation of its own statute, and that the CCPA complements rather than supplants CIPA. Perspectives from Interested Parties The amicus briefs expand the scope of the appeal. Business organizations, including the U.S. Chamber of Commerce, Alliance for Legal Fairness, California Chamber of Commerce, California Retailers Association, Retail Litigation Center, and Association of Corporate Counsel, concentrate on the practical ramifications of applying CIPA to routine website operations. As the Association of Corporate Counsel observes, each new website tool that becomes a litigation target compels businesses to spend “countless hours and resources guessing at how best to avoid CIPA liability—while still maintaining CCPA compliance.” A separate brief filed jointly by Asana, Eventbrite, GoPro, ClickUp, Reddit, the Software & Information Industry Association, MasterClass, and Yelp supplies technical context on how IP addresses, cookies, pixels, and device data support website functionality, cybersecurity, fraud prevention, and analytics. Additional amici, including News/Media Alliance, Digital Content Next, the Movement for an Open Web, and the Southwestern Law School Amicus Project, address implications for digital publishers and CIPA’s statutory history. The amici supporting Rose (i.e., the ACLU of Northern California, ACLU of Southern California, and Oakland Privacy) argue that metadata and browsing information can reveal substantial details about individuals’ online activity, that the CCPA complements rather than supersedes CIPA, and that privacy protections should evolve alongside technology. The Court’s Supplemental Questions In May 2026, rather than proceeding directly to oral argument, the Court directed supplemental briefing on several questions. The Court inquired about the relationship between CIPA and the federal Pen Register Act; specifically, whether a California company could violate the federal statute by collecting internet metadata even if California’s pen register provisions were interpreted more narrowly, and whether CIPA should be construed to avoid conflict with federal law. The Court also asked whether the specific tracking technologies at issue (e.g., cookies that collect IP addresses, browser type, and similar device-level metadata) fall within CIPA’s definitions or are excluded as “tracking devices” under Penal Code Section 629.51. Finally, it questioned whether the pen register provisions apply only to communications containing “content,” and whether merely visiting a website constitutes a “communication” within the meaning of the statute. While the parties largely adhered to their original positions in supplemental briefing, Variety reiterated that Congress amended the federal Pen Register Act for internet communications while California made no comparable amendments to CIPA. Rose responded that CIPA’s existing language already reaches evolving technologies. The Court’s questions do not signal how it will ultimately decide, but they illuminate the issues likely to receive the most attention at oral argument. What Comes Next With briefing concluded, attention turns to the oral argument scheduled for August 25, 2026. Although the parties and amici disagree on CIPA’s application, they largely concur on how the underlying technologies function. The central questions have crystallized: whether CIPA reaches internet communications, whether the challenged tools fall within its definitions, and how CIPA should be interpreted alongside the CCPA. In summary, the disagreement transcends statutory interpretation. Variety and its supporters stress statutory limitations and potential business consequences, whereas Rose and his supporters emphasize consumer privacy and the imperative for CIPA’s protections to keep pace with technological change. The outcome could determine whether routine website data practices fall under CIPA’s surveillance provisions, California’s contemporary privacy framework, or both. Our next article will provide firsthand coverage from the courtroom, examining the panel’s questions, the parties’ responses, and what the argument reveals about how the Court may resolve this closely watched appeal.