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Obtained dismissal via summary judgment of a lawsuit alleging breach of an insurance policy claim on the issue of late notice and prejudice, in the U.S. District Court, Southern District of Florida. 

Obtained dismissal of hundreds of insurance coverage disputes via settlement, motion to dismiss or summary judgment.

Representative Matters

Obtained dismissal via summary judgment of a lawsuit alleging breach of an insurance policy claim on the issue of late notice and prejudice, in the U.S. District Court, Southern District of Florida. 

Obtained dismissal of hundreds of insurance coverage disputes via settlement, motion to dismiss or summary judgment.

Representative Matters

Mangano, Zibas and Rolland Prevail in Significant Privacy Litigation Matter

Shawn Mangano (Of Counsel-Las Vegas, NV), Jura Zibas (Partner-New York, NY and Sarasota, FL) and Sean Rolland (Of Counsel-Orlando, FL) successfully defended a hybrid managed services provider in litigation before the U.S. District Court for the District of Nevada.

Plaintiffs’ claims involved the unauthorized access and alleged dissemination of personally identifiable information (“PII”) related to potentially over 600,000 potential data breach claimants that received services for a health provider with which Wilson Elser’s client was providing data storage and security services. The data breach at issue involved sophisticated Russian cybercriminals who allegedly gained access to another party’s protected data through cyber-spoofing, resulting in access to the provider’s information containing Plaintiffs’ PII. Plaintiffs filed a complaint for damages seeking recovery for negligence/negligence per se, breach of third-party beneficiary contract, invasion of privacy or intrusion upon seclusion, and unjust enrichment.

On August 18, 2026, our client received a report and recommendation recommending its motion to dismiss be granted on several key damage recovery issues that have not otherwise been confirmed in data breach actions filed in the jurisdiction.

These recommendations include the requirement that, for a negligence per se claim, a plaintiff must allege that his or her PPI was subject to an increased risk of fraud, identity theft, or nefarious misuse. Likewise, for a plaintiff seeking to recover for “lost time” under a negligence/negligence per se claim, recovery must be tied to out-of-pocket expenses for said lost time. Finally, a plaintiff’s claims of increased anxiety and emotional distress must assert the existence of a physical injury or illness to warrant recovery of damages for the unauthorized disclosure of his or her PII.

Regarding breach of third-party beneficiary contract, the Court concluded that mere allegations that “Defendant entered into contracts to provide IT services” were insufficient to establish data protection obligations on our client.

Finally, the Court determined that to recover for invasion of privacy/inclusion upon seclusion for the data breach, a Plaintiff must be under “highly offensive” circumstances. In this case, those “highly offensive” circumstances were determined to be possession of PII by a notorious cybercriminal gang, of which at least one Plaintiff had failed to assert.

Overall, this result serves to delineate the allegations necessary for Plaintiffs to survive a motion to dismiss in cyber breach cases in the District of Nevada, despite multiple other decisions that essentially rubberstamped allegations. 

Shawn A. Mangano, Jura Christine Zibas and Sean Rolland

Firm Highlights

Events
Emerging Trends and Landmark Decisions: Lawyers’ Liability
Kimberly E. Blair (Partner-Chicago) and Maxwell L. Billek (Partner-Madison, NJ) will present the Wilson Elser Forum webinar “Emerging Trends and Landmark Decisions in Lawyer’s Liability” on September 14, 2026. This program provides claims professionals, underwriters, and attorneys with updates on emerging trends, risk factors, and recent landmark decisions affecting lawyers’ liability and legal malpractice exposure. Kim and Max examine developing malpractice risks associated with generative AI, the growth of transactional malpractice claims, the impact of third-party litigation funding on claim resolution, and the continuing significance of conflicts of interest as a leading source of professional liability. Recent case law on vicarious liability, fee-sharing and ethics obligations, proximate causation standards, fiduciary duties in settlement communications, and litigation privilege are also addressed. By the end of the presentation, participants will be better equipped to identify evolving malpractice risks, understand current legal standards governing professional liability, and implement practical risk-management strategies in their practices.
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News
123 Wilson Elser Attorneys Named to The Best Lawyers in America 2027 List
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 
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Client Wins
Praw and Natividad Prevail in Toxic Tort Action
Joshua Praw (Partner-San Francisco, CA) and Vanessa Natividad (Of Counsel-San Francisco, CA) secured summary judgment for Wilson Elser's client, a stone retailer, in a toxic tort action filed in the Los Angeles County Superior Court. All claims against the client were dismissed just one month before trial.   The plaintiff, a stone fabricator, sued dozens of defendants, including Wilson Elser's client, alleging that they manufactured, distributed, or otherwise sold stone countertops that the plaintiff ultimately fabricated. During the fabrication process, respirable crystalline silica was released, and the plaintiff was diagnosed with silicosis, an incurable and life-threatening lung disease. In moving for summary judgment, Joshua and Vanessa demonstrated that the plaintiff could not accurately or specifically identify the client's involvement in his alleged exposure. The motion further established that, even crediting all the plaintiff's claims, the client's products accounted for less than 1% of the plaintiff's overall exposure to respirable crystalline silica. Joshua and Vanessa argued that, on this record, no reasonable jury could find that the client's involvement was a substantial factor in causing or contributing to the plaintiff's silicosis diagnosis.   The court agreed, granting summary judgment and dismissing the complaint against Wilson Elser's client, thus eliminating the need for a trial.
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Publications
NV Supreme Court Vacates $5.5M Judgment Over Excluded Medical Records
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.
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Publications
SB 54 Is in Effect: What California's New Packaging Law Means for Your Business
Although challenged by an injunction filed on August 20, 2026, by a coalition of 17 states, California’s SB 54 Plastic Pollution Prevention and Packaging Producer Responsibility Act is now in effect, and companies that sell, distribute, import, or ship packaged products into California should be evaluating whether they have compliance obligations. SB 54 creates an extended producer responsibility (EPR) program for single-use packaging and single-use plastic food service ware, shifting end-of-life management costs from local governments and taxpayers to covered “producers.” The final implementing regulations took effect on May 1, 2026. The law is particularly important for consumer brands, retail and e-commerce companies, apparel and footwear companies, food and beverage businesses, food-service companies, private-label sellers, distributors, importers, and any business shipping packaged goods into California or other states with packaging EPR laws. What Is SB 54? SB 54 establishes a statewide EPR program for “covered material,” which generally includes two categories: 1. Single-use packaging—materials used to contain, protect, handle, deliver, or present goods, such as product packaging, display or grouped packaging, and transport packaging 2. Single-use plastic food service ware—plastic food-service items such, as trays, plates, bowls, clamshells, lids, cups, utensils, straws, and certain wraps or bags used by food-service establishments. The “producer” definition is broad. It can reach brand or trademark owners, licensees, and, if those entities are not in California, sellers or distributors placing products using covered material into California. Out-of-state and e-commerce sellers may, therefore, be within the statute’s scope when products are delivered to California purchasers. SB 54’s key targets phase in over the following dates: January 1, 2027: Producers must achieve a 10 percent reduction in single-use plastic packaging. January 1, 2028: Producers must achieve a 30 percent recycling rate for plastic covered material. January 1, 2030: Producers must achieve a 20 percent reduction in single-use plastic packaging, and plastic materials must meet a 40 percent recycling rate. January 1, 2032: Full compliance goals take effect: single-use plastic packaging and food service ware must see a 25 percent source reduction, achieve a 65 percent recycling rate, and 100 percent of single-use packaging sold must be fully recyclable or compostable. The first major compliance checkpoint has already passed: producers were required by June 1, 2026, to join Circular Action Alliance (CAA), register with CalRecycle as an independent producer, or apply for the small-producer exemption. CAA is California’s first approved producer responsibility organization, and program implementation is targeted to begin on or before January 1, 2027. What Does This Mean for Businesses? Companies should not assume SB 54 applies only to packaging manufacturers. The law can reach businesses that sell finished products in covered packaging, private-label sellers, online sellers, distributors, and importers depending on where the relevant brand owner, licensee, seller, or distributor sits in the chain. For potentially covered companies, the practical compliance burden is data-driven. Businesses will need to understand what packaging they place into the California market, who is responsible for reporting it, how the packaging is categorized, whether any exemptions apply, and how California obligations coordinate with other state packaging EPR programs. The small-producer exemption generally applies to entities with less than $1 million in California gross sales, but producers still must register or apply, and CalRecycle may deny the exemption if it would impair compliance for a covered material category. EPS food service ware is already a live issue because the required 25 percent recycling-rate threshold has not been met, meaning producers are prohibited from selling, offering for sale, distributing, or importing EPS food service ware into California. Companies making “recyclable” claims also should evaluate California SB 343 because SB 54’s recyclability framework is tied to California’s “Truth in Recycling” criteria. Noncompliance can carry penalties of up to $50,000 per day per violation. Impact on Small and Emerging Businesses A byproduct of the internet age is that many companies can be formed with very little legal governance and compliance infrastructure. Yet these producers and sellers are still subject to the law. With many companies and individuals starting businesses on Etsy, TikTok Shop, Instagram, and other digital platforms, depending on whether they do well, they can find themselves squarely impacted by SB 54’s requirements. The scope of potential impact is significant. CalRecycle’s Regulatory Impact Assessment estimates that the regulations will directly affect 5,741 regulated producers (i.e., those with annual gross sales of $1 million or greater) and 7,874 small producers eligible for exemption. An additional 546,269 non-regulated businesses—including retailers, wholesalers, and restaurants—will be indirectly affected. Platform sellers are particularly vulnerable. According to Business of Apps, Etsy alone has approximately 8.7 million active sellers globally, with the majority based in the United States. TikTok Shop has over 500,000 U.S. merchants registered. Many of these sellers ship packaged goods to California customers and may not be aware of their SB 54 obligations. These sellers typically lack in-house legal counsel and may not be monitoring California regulatory developments. The small-producer exemption does not eliminate obligations. Producers with less than $1 million in California gross sales may qualify for the small-producer exemption, but this exemption is not self-executing. Even exempt producers must register with CalRecycle and substantiate their eligibility. CalRecycle retains the authority to deny the exemption if it would impair compliance for a covered material category. Moreover, the exemption does not relieve producers of the obligation to ensure their packaging is recyclable or compostable by 2032. For small businesses and platform sellers, key action items include: Determine whether you are a “producer” under SB 54 based on the packaging used to ship your products to California customers. If you qualify as a small producer, register with CalRecycle and apply for the exemption. Failure to do so may result in enforcement action. Begin evaluating your packaging materials for recyclability and compostability, as the 2032 requirements will apply regardless of producer size. Monitor whether the platforms on which you sell (e.g., Etsy, TikTok Shop, Amazon) implement compliance mechanisms that may cover their sellers. Litigation and Regulatory Uncertainty SB 54 and related California packaging laws are subject to significant litigation and regulatory uncertainty. Companies should monitor developments in such actions, which include: NRDC and Californians Against Waste v. CalRecycle In June 2026, NRDC, Californians Against Waste Foundation and Oceana, Inc. formally filed a lawsuit challenging CalRecycle’s final implementing regulations, arguing that CalRecycle created unlawful loopholes exempting certain plastic packaging and allowing “polluting technologies,” such as chemical recycling to count toward recycling targets. The petitioners claim that the final regulations are “invalid because or to the extent they are inconsistent with the Plastic Pollution Prevention and Packaging Producer Responsibility Act,” and “that they are arbitrary and capricious, and without rational basis.” This challenge could result in modifications to the regulatory framework and affect how producers demonstrate compliance. SB 343 Preliminary Injunction On July 14, 2026, the U.S. District Court for the Southern District of California issued a preliminary injunction blocking enforcement of SB 343, California’s “Truth-in-Recycling” law, in California League of Food Producers et al. v. Bonta, Case No. 3:26-cv-01675 (S.D. Cal.). The court found that the plaintiffs—a coalition of 18 trade organizations—were likely to succeed on claims that: (a) certain SB 343 requirements are unconstitutionally vague under the Fourteenth Amendment, and (b) the law’s restrictions violate the First Amendment because the state failed to demonstrate the restrictions would materially advance its interests. Multi-State Challenge to SB 54 A separate lawsuit has been filed by 17 states, including the National Association of Wholesaler-Distributors as the sole business plaintiff, challenging SB 54 itself on Dormant Commerce Clause, Free Speech, and Due Process grounds. This challenge contends that SB 54 impermissibly regulates interstate commerce and imposes burdens on out-of-state producers that exceed California’s legitimate regulatory authority. On August 20, 2026, the 17-state coalition filed a motion for a preliminary injunction, asking the U.S. District Court for the Eastern District of California to block enforcement of SB 54 while the coalition’s challenge proceeds. If successful, this challenge could invalidate or substantially modify SB 54’s application to out-of-state companies. Practical Implications Despite this litigation, companies should not delay compliance efforts. Preliminary injunctions can be reversed, and SB 54’s registration and reporting deadlines remain in effect unless separately enjoined. Moreover, while the suspension of SB 343 is significant, it does not limit the legal risks associated with other recyclability claims, and companies making representations should continue to evaluate their exposure under California’s false advertising statutes, the Federal Trade Commission’s’ (FTC) Green Guides, and consumer class-action litigation challenging environmental marketing claims. Companies should continue to monitor the legal developments and the adjacent statutes and consult counsel regarding the implications for their specific compliance strategies. Other States to Watch California is part of a broader state-packaging EPR trend. Several other states—including Colorado, Maine, Oregon, Minnesota, Maryland, and Washington—have enacted packaging EPR programs, with additional proposals and adjacent measures continuing to emerge. This remains a rapidly developing area, and companies should monitor additional state legislation. For companies operating nationally, the key issue is harmonization: each state may use different definitions, registration timelines, reporting requirements, fee structures, and exemptions. A packaging data system built only for California may not be sufficient for multi-state compliance. Recommended Next Steps Confirm whether your organization is a “producer” under SB 54 and, if so, verify that registration obligations have been met. Audit your packaging portfolio to identify covered materials and determine recyclability status under current California standards. Assess the impact of the SB 343 preliminary injunction on your recyclability determinations and labeling practices. Monitor the pending multi-state challenge and the NRDC lawsuit for developments that may affect the regulatory framework. Evaluate whether your California compliance systems can scale to address emerging packaging EPR requirements in other states. Consider engaging legal counsel to develop a coordinated multi-state compliance strategy. * * * This client alert is for informational purposes only and does not constitute legal advice. Companies should consult with legal counsel regarding their specific compliance obligations under SB 54 and related state packaging EPR programs.
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Publications
CIPA in the Digital Age: What Businesses Need to Know About the Variety Media Appeal
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.
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Client Wins
Moran Quashes $1.75 Million Demand with Summary Judgment Win for Commercial Property Owner
Jennifer Moran (Partner-Madison, NJ) obtained summary judgment in the New Jersey Superior Court, Essex County, for Wilson Elser’s commercial property owner client in a premises liability matter. The plaintiff alleged he was injured in a fall after reporting to work at a warehouse property owned by the client, where his employer was a tenant. The plaintiff's complaint alleged that recurrent flooding, inadequate drainage, and the absence of guardrails rendered the loading dock area unsafe, and that our client, as landlord, failed to maintain the premises in a reasonably safe condition. Applying the duty framework in Hopkins v. Fox & Lazo Realtors and the proximate cause principles in Vega by Muniz v. Piedilato, the court found that the plaintiff's own testimony established that no condition on the ledge of the loading dock caused his fall, and that the alleged drainage, known flooding, and lack of guardrail were too attenuated from the actual mechanism of the fall to establish proximate cause. The court further held that the plaintiff’s expert report did not create a genuine issue of material fact. Ultimately, the court granted Wilson Elser’s motion for summary judgment, dismissing the plaintiff’s complaint against the client with prejudice. The decision came just weeks before the scheduled September 2026 trial date, successfully denying the plaintiff’s $1,750,000 demand. Additionally, our client’s third-party complaint against the tenant (plaintiff’s employer) sought to recover defense fees and indemnification. The third-party defendant’s motion for summary judgment seeking to dismiss the third-party complaint was pending while Wilson Elser’s motion was being decided. That motion is now moot. Of note, however, the tenant’s carrier had been paying defense fees and costs during the pending litigation.
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News
Holmgren Named Hartwick College’s Outstanding Recent Alumnus
Thomas Holmgren (Of Counsel-New York, NY) is among five members of the Hartwick College community selected to receive a 2026 Alumni Award. A member of the Hartwick Class of 2013, Thomas has been named the Alumni Association’s Outstanding Recent Alumnus, recognizing graduates who have demonstrated outstanding and sustained volunteer service to the College.   Thomas was recognized for his extraordinary leadership, perhaps best exemplified by the College’s Moot Court Competition, which he created, directed, and funded. He personally developed the constitutional law cases used in the competition, coordinated multiple rounds of oral arguments, recruited and organized dozens of Hartwick alumni attorneys to serve as judges, and traveled to campus to participate in the final rounds. As one nominator aptly observed, Thomas “has remained deeply committed to giving back to Hartwick and creating opportunities for the next generation of students.” Through the competition, Hartwick students gain invaluable experience in legal analysis, persuasive advocacy, critical thinking, and public speaking. As the College proudly noted in its awards press release, Thomas “has created a legacy that continues to enrich both our students and broader community.”
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Events
The Shifting Landscape of Fair Housing Law
Jonathan Meer (Partner-New York, NY) and Angela Sekerka (Of Counsel-New York, NY) will present the Wilson Elser Forum webinar “The Shifting Landscape of Fair Housing Law” on September 10, 2026. This webinar will provide a comprehensive overview of the ever-changing landscape of fair housing law, beginning with the foundation of the Fair Housing Act and the key issues involving fair housing discrimination nationwide. The Department of Housing and Urban Development (HUD) has been reworking its guidance across a range of fair housing issues, requiring providers to comply with new standards. As the new administration’s priorities continue to drive these changes, this presentation will explore how compliance with fair housing law is a moving target. It will examine challenges to what is considered reasonable accommodation and the use of criminal background checks in housing decisions. Additionally, the presentation will offer insight into emerging legislation on algorithmic rent-setting and source-of-income discrimination. The session will conclude with guidance on how providers should approach their housing policies and navigate the fluctuating laws of fair housing. 
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Events
Emerging Trends and Landmark Decisions: Insurer Brokers/Agents and Real Estate Professionals
Peter C. Catalanotti (Partner-San Francisco), Joseph L. Francoeur (Partner-New York, NY), and Eve Mouzouris (Of Counsel-New York, NY) will present the Wilson Elser Forum webinar “Emerging Trends and Landmark Decisions: Insurer Brokers/Agents and Real Estate Professionals” on September 15, 2026. This webinar provides an overview of emerging professional liability trends affecting insurance agents, brokers, and real estate professionals, examining evolving fiduciary duty claims, expanding scope-of-work expectations, and growing exposure resulting from client expectation gaps in coverage procurement and placement decisions. Also discussed are emerging risks associated with the use of artificial intelligence in quoting, underwriting support, marketing, and property descriptions, as well as increased exposure tied to carrier insolvency and continued hardening of the insurance market. Participants will explore key developments in real estate professional negligence claims, including changes to commission and agency rules, increasing liability for AI-generated misinformation, ongoing nondisclosure and misrepresentation risks, growing antitrust and governance-related litigation affecting brokerages and MLS organizations, and recent case law shaping modern professional liability standards.
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Client Wins
Praw and Natividad Prevail in Toxic Tort Action
Joshua Praw (Partner-San Francisco, CA) and Vanessa Natividad (Of Counsel-San Francisco, CA) secured summary judgment for Wilson Elser's client, a stone retailer, in a toxic tort action filed in the Los Angeles County Superior Court. All claims against the client were dismissed just one month before trial.   The plaintiff, a stone fabricator, sued dozens of defendants, including Wilson Elser's client, alleging that they manufactured, distributed, or otherwise sold stone countertops that the plaintiff ultimately fabricated. During the fabrication process, respirable crystalline silica was released, and the plaintiff was diagnosed with silicosis, an incurable and life-threatening lung disease. In moving for summary judgment, Joshua and Vanessa demonstrated that the plaintiff could not accurately or specifically identify the client's involvement in his alleged exposure. The motion further established that, even crediting all the plaintiff's claims, the client's products accounted for less than 1% of the plaintiff's overall exposure to respirable crystalline silica. Joshua and Vanessa argued that, on this record, no reasonable jury could find that the client's involvement was a substantial factor in causing or contributing to the plaintiff's silicosis diagnosis.   The court agreed, granting summary judgment and dismissing the complaint against Wilson Elser's client, thus eliminating the need for a trial.
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News
123 Wilson Elser Attorneys Named to The Best Lawyers in America 2027 List
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 
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Events
Emerging Trends and Landmark Decisions: Lawyers’ Liability
Kimberly E. Blair (Partner-Chicago) and Maxwell L. Billek (Partner-Madison, NJ) will present the Wilson Elser Forum webinar “Emerging Trends and Landmark Decisions in Lawyer’s Liability” on September 14, 2026. This program provides claims professionals, underwriters, and attorneys with updates on emerging trends, risk factors, and recent landmark decisions affecting lawyers’ liability and legal malpractice exposure. Kim and Max examine developing malpractice risks associated with generative AI, the growth of transactional malpractice claims, the impact of third-party litigation funding on claim resolution, and the continuing significance of conflicts of interest as a leading source of professional liability. Recent case law on vicarious liability, fee-sharing and ethics obligations, proximate causation standards, fiduciary duties in settlement communications, and litigation privilege are also addressed. By the end of the presentation, participants will be better equipped to identify evolving malpractice risks, understand current legal standards governing professional liability, and implement practical risk-management strategies in their practices.
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Publications
NV Supreme Court Vacates $5.5M Judgment Over Excluded Medical Records
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.
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Publications
SB 54 Is in Effect: What California's New Packaging Law Means for Your Business
Although challenged by an injunction filed on August 20, 2026, by a coalition of 17 states, California’s SB 54 Plastic Pollution Prevention and Packaging Producer Responsibility Act is now in effect, and companies that sell, distribute, import, or ship packaged products into California should be evaluating whether they have compliance obligations. SB 54 creates an extended producer responsibility (EPR) program for single-use packaging and single-use plastic food service ware, shifting end-of-life management costs from local governments and taxpayers to covered “producers.” The final implementing regulations took effect on May 1, 2026. The law is particularly important for consumer brands, retail and e-commerce companies, apparel and footwear companies, food and beverage businesses, food-service companies, private-label sellers, distributors, importers, and any business shipping packaged goods into California or other states with packaging EPR laws. What Is SB 54? SB 54 establishes a statewide EPR program for “covered material,” which generally includes two categories: 1. Single-use packaging—materials used to contain, protect, handle, deliver, or present goods, such as product packaging, display or grouped packaging, and transport packaging 2. Single-use plastic food service ware—plastic food-service items such, as trays, plates, bowls, clamshells, lids, cups, utensils, straws, and certain wraps or bags used by food-service establishments. The “producer” definition is broad. It can reach brand or trademark owners, licensees, and, if those entities are not in California, sellers or distributors placing products using covered material into California. Out-of-state and e-commerce sellers may, therefore, be within the statute’s scope when products are delivered to California purchasers. SB 54’s key targets phase in over the following dates: January 1, 2027: Producers must achieve a 10 percent reduction in single-use plastic packaging. January 1, 2028: Producers must achieve a 30 percent recycling rate for plastic covered material. January 1, 2030: Producers must achieve a 20 percent reduction in single-use plastic packaging, and plastic materials must meet a 40 percent recycling rate. January 1, 2032: Full compliance goals take effect: single-use plastic packaging and food service ware must see a 25 percent source reduction, achieve a 65 percent recycling rate, and 100 percent of single-use packaging sold must be fully recyclable or compostable. The first major compliance checkpoint has already passed: producers were required by June 1, 2026, to join Circular Action Alliance (CAA), register with CalRecycle as an independent producer, or apply for the small-producer exemption. CAA is California’s first approved producer responsibility organization, and program implementation is targeted to begin on or before January 1, 2027. What Does This Mean for Businesses? Companies should not assume SB 54 applies only to packaging manufacturers. The law can reach businesses that sell finished products in covered packaging, private-label sellers, online sellers, distributors, and importers depending on where the relevant brand owner, licensee, seller, or distributor sits in the chain. For potentially covered companies, the practical compliance burden is data-driven. Businesses will need to understand what packaging they place into the California market, who is responsible for reporting it, how the packaging is categorized, whether any exemptions apply, and how California obligations coordinate with other state packaging EPR programs. The small-producer exemption generally applies to entities with less than $1 million in California gross sales, but producers still must register or apply, and CalRecycle may deny the exemption if it would impair compliance for a covered material category. EPS food service ware is already a live issue because the required 25 percent recycling-rate threshold has not been met, meaning producers are prohibited from selling, offering for sale, distributing, or importing EPS food service ware into California. Companies making “recyclable” claims also should evaluate California SB 343 because SB 54’s recyclability framework is tied to California’s “Truth in Recycling” criteria. Noncompliance can carry penalties of up to $50,000 per day per violation. Impact on Small and Emerging Businesses A byproduct of the internet age is that many companies can be formed with very little legal governance and compliance infrastructure. Yet these producers and sellers are still subject to the law. With many companies and individuals starting businesses on Etsy, TikTok Shop, Instagram, and other digital platforms, depending on whether they do well, they can find themselves squarely impacted by SB 54’s requirements. The scope of potential impact is significant. CalRecycle’s Regulatory Impact Assessment estimates that the regulations will directly affect 5,741 regulated producers (i.e., those with annual gross sales of $1 million or greater) and 7,874 small producers eligible for exemption. An additional 546,269 non-regulated businesses—including retailers, wholesalers, and restaurants—will be indirectly affected. Platform sellers are particularly vulnerable. According to Business of Apps, Etsy alone has approximately 8.7 million active sellers globally, with the majority based in the United States. TikTok Shop has over 500,000 U.S. merchants registered. Many of these sellers ship packaged goods to California customers and may not be aware of their SB 54 obligations. These sellers typically lack in-house legal counsel and may not be monitoring California regulatory developments. The small-producer exemption does not eliminate obligations. Producers with less than $1 million in California gross sales may qualify for the small-producer exemption, but this exemption is not self-executing. Even exempt producers must register with CalRecycle and substantiate their eligibility. CalRecycle retains the authority to deny the exemption if it would impair compliance for a covered material category. Moreover, the exemption does not relieve producers of the obligation to ensure their packaging is recyclable or compostable by 2032. For small businesses and platform sellers, key action items include: Determine whether you are a “producer” under SB 54 based on the packaging used to ship your products to California customers. If you qualify as a small producer, register with CalRecycle and apply for the exemption. Failure to do so may result in enforcement action. Begin evaluating your packaging materials for recyclability and compostability, as the 2032 requirements will apply regardless of producer size. Monitor whether the platforms on which you sell (e.g., Etsy, TikTok Shop, Amazon) implement compliance mechanisms that may cover their sellers. Litigation and Regulatory Uncertainty SB 54 and related California packaging laws are subject to significant litigation and regulatory uncertainty. Companies should monitor developments in such actions, which include: NRDC and Californians Against Waste v. CalRecycle In June 2026, NRDC, Californians Against Waste Foundation and Oceana, Inc. formally filed a lawsuit challenging CalRecycle’s final implementing regulations, arguing that CalRecycle created unlawful loopholes exempting certain plastic packaging and allowing “polluting technologies,” such as chemical recycling to count toward recycling targets. The petitioners claim that the final regulations are “invalid because or to the extent they are inconsistent with the Plastic Pollution Prevention and Packaging Producer Responsibility Act,” and “that they are arbitrary and capricious, and without rational basis.” This challenge could result in modifications to the regulatory framework and affect how producers demonstrate compliance. SB 343 Preliminary Injunction On July 14, 2026, the U.S. District Court for the Southern District of California issued a preliminary injunction blocking enforcement of SB 343, California’s “Truth-in-Recycling” law, in California League of Food Producers et al. v. Bonta, Case No. 3:26-cv-01675 (S.D. Cal.). The court found that the plaintiffs—a coalition of 18 trade organizations—were likely to succeed on claims that: (a) certain SB 343 requirements are unconstitutionally vague under the Fourteenth Amendment, and (b) the law’s restrictions violate the First Amendment because the state failed to demonstrate the restrictions would materially advance its interests. Multi-State Challenge to SB 54 A separate lawsuit has been filed by 17 states, including the National Association of Wholesaler-Distributors as the sole business plaintiff, challenging SB 54 itself on Dormant Commerce Clause, Free Speech, and Due Process grounds. This challenge contends that SB 54 impermissibly regulates interstate commerce and imposes burdens on out-of-state producers that exceed California’s legitimate regulatory authority. On August 20, 2026, the 17-state coalition filed a motion for a preliminary injunction, asking the U.S. District Court for the Eastern District of California to block enforcement of SB 54 while the coalition’s challenge proceeds. If successful, this challenge could invalidate or substantially modify SB 54’s application to out-of-state companies. Practical Implications Despite this litigation, companies should not delay compliance efforts. Preliminary injunctions can be reversed, and SB 54’s registration and reporting deadlines remain in effect unless separately enjoined. Moreover, while the suspension of SB 343 is significant, it does not limit the legal risks associated with other recyclability claims, and companies making representations should continue to evaluate their exposure under California’s false advertising statutes, the Federal Trade Commission’s’ (FTC) Green Guides, and consumer class-action litigation challenging environmental marketing claims. Companies should continue to monitor the legal developments and the adjacent statutes and consult counsel regarding the implications for their specific compliance strategies. Other States to Watch California is part of a broader state-packaging EPR trend. Several other states—including Colorado, Maine, Oregon, Minnesota, Maryland, and Washington—have enacted packaging EPR programs, with additional proposals and adjacent measures continuing to emerge. This remains a rapidly developing area, and companies should monitor additional state legislation. For companies operating nationally, the key issue is harmonization: each state may use different definitions, registration timelines, reporting requirements, fee structures, and exemptions. A packaging data system built only for California may not be sufficient for multi-state compliance. Recommended Next Steps Confirm whether your organization is a “producer” under SB 54 and, if so, verify that registration obligations have been met. Audit your packaging portfolio to identify covered materials and determine recyclability status under current California standards. Assess the impact of the SB 343 preliminary injunction on your recyclability determinations and labeling practices. Monitor the pending multi-state challenge and the NRDC lawsuit for developments that may affect the regulatory framework. Evaluate whether your California compliance systems can scale to address emerging packaging EPR requirements in other states. Consider engaging legal counsel to develop a coordinated multi-state compliance strategy. * * * This client alert is for informational purposes only and does not constitute legal advice. Companies should consult with legal counsel regarding their specific compliance obligations under SB 54 and related state packaging EPR programs.
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Publications
CIPA in the Digital Age: What Businesses Need to Know About the Variety Media Appeal
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.
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Client Wins
Moran Quashes $1.75 Million Demand with Summary Judgment Win for Commercial Property Owner
Jennifer Moran (Partner-Madison, NJ) obtained summary judgment in the New Jersey Superior Court, Essex County, for Wilson Elser’s commercial property owner client in a premises liability matter. The plaintiff alleged he was injured in a fall after reporting to work at a warehouse property owned by the client, where his employer was a tenant. The plaintiff's complaint alleged that recurrent flooding, inadequate drainage, and the absence of guardrails rendered the loading dock area unsafe, and that our client, as landlord, failed to maintain the premises in a reasonably safe condition. Applying the duty framework in Hopkins v. Fox & Lazo Realtors and the proximate cause principles in Vega by Muniz v. Piedilato, the court found that the plaintiff's own testimony established that no condition on the ledge of the loading dock caused his fall, and that the alleged drainage, known flooding, and lack of guardrail were too attenuated from the actual mechanism of the fall to establish proximate cause. The court further held that the plaintiff’s expert report did not create a genuine issue of material fact. Ultimately, the court granted Wilson Elser’s motion for summary judgment, dismissing the plaintiff’s complaint against the client with prejudice. The decision came just weeks before the scheduled September 2026 trial date, successfully denying the plaintiff’s $1,750,000 demand. Additionally, our client’s third-party complaint against the tenant (plaintiff’s employer) sought to recover defense fees and indemnification. The third-party defendant’s motion for summary judgment seeking to dismiss the third-party complaint was pending while Wilson Elser’s motion was being decided. That motion is now moot. Of note, however, the tenant’s carrier had been paying defense fees and costs during the pending litigation.
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News
Holmgren Named Hartwick College’s Outstanding Recent Alumnus
Thomas Holmgren (Of Counsel-New York, NY) is among five members of the Hartwick College community selected to receive a 2026 Alumni Award. A member of the Hartwick Class of 2013, Thomas has been named the Alumni Association’s Outstanding Recent Alumnus, recognizing graduates who have demonstrated outstanding and sustained volunteer service to the College.   Thomas was recognized for his extraordinary leadership, perhaps best exemplified by the College’s Moot Court Competition, which he created, directed, and funded. He personally developed the constitutional law cases used in the competition, coordinated multiple rounds of oral arguments, recruited and organized dozens of Hartwick alumni attorneys to serve as judges, and traveled to campus to participate in the final rounds. As one nominator aptly observed, Thomas “has remained deeply committed to giving back to Hartwick and creating opportunities for the next generation of students.” Through the competition, Hartwick students gain invaluable experience in legal analysis, persuasive advocacy, critical thinking, and public speaking. As the College proudly noted in its awards press release, Thomas “has created a legacy that continues to enrich both our students and broader community.”
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Events
The Shifting Landscape of Fair Housing Law
Jonathan Meer (Partner-New York, NY) and Angela Sekerka (Of Counsel-New York, NY) will present the Wilson Elser Forum webinar “The Shifting Landscape of Fair Housing Law” on September 10, 2026. This webinar will provide a comprehensive overview of the ever-changing landscape of fair housing law, beginning with the foundation of the Fair Housing Act and the key issues involving fair housing discrimination nationwide. The Department of Housing and Urban Development (HUD) has been reworking its guidance across a range of fair housing issues, requiring providers to comply with new standards. As the new administration’s priorities continue to drive these changes, this presentation will explore how compliance with fair housing law is a moving target. It will examine challenges to what is considered reasonable accommodation and the use of criminal background checks in housing decisions. Additionally, the presentation will offer insight into emerging legislation on algorithmic rent-setting and source-of-income discrimination. The session will conclude with guidance on how providers should approach their housing policies and navigate the fluctuating laws of fair housing. 
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Events
Emerging Trends and Landmark Decisions: Insurer Brokers/Agents and Real Estate Professionals
Peter C. Catalanotti (Partner-San Francisco), Joseph L. Francoeur (Partner-New York, NY), and Eve Mouzouris (Of Counsel-New York, NY) will present the Wilson Elser Forum webinar “Emerging Trends and Landmark Decisions: Insurer Brokers/Agents and Real Estate Professionals” on September 15, 2026. This webinar provides an overview of emerging professional liability trends affecting insurance agents, brokers, and real estate professionals, examining evolving fiduciary duty claims, expanding scope-of-work expectations, and growing exposure resulting from client expectation gaps in coverage procurement and placement decisions. Also discussed are emerging risks associated with the use of artificial intelligence in quoting, underwriting support, marketing, and property descriptions, as well as increased exposure tied to carrier insolvency and continued hardening of the insurance market. Participants will explore key developments in real estate professional negligence claims, including changes to commission and agency rules, increasing liability for AI-generated misinformation, ongoing nondisclosure and misrepresentation risks, growing antitrust and governance-related litigation affecting brokerages and MLS organizations, and recent case law shaping modern professional liability standards.
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Client Wins
Praw and Natividad Prevail in Toxic Tort Action
Joshua Praw (Partner-San Francisco, CA) and Vanessa Natividad (Of Counsel-San Francisco, CA) secured summary judgment for Wilson Elser's client, a stone retailer, in a toxic tort action filed in the Los Angeles County Superior Court. All claims against the client were dismissed just one month before trial.   The plaintiff, a stone fabricator, sued dozens of defendants, including Wilson Elser's client, alleging that they manufactured, distributed, or otherwise sold stone countertops that the plaintiff ultimately fabricated. During the fabrication process, respirable crystalline silica was released, and the plaintiff was diagnosed with silicosis, an incurable and life-threatening lung disease. In moving for summary judgment, Joshua and Vanessa demonstrated that the plaintiff could not accurately or specifically identify the client's involvement in his alleged exposure. The motion further established that, even crediting all the plaintiff's claims, the client's products accounted for less than 1% of the plaintiff's overall exposure to respirable crystalline silica. Joshua and Vanessa argued that, on this record, no reasonable jury could find that the client's involvement was a substantial factor in causing or contributing to the plaintiff's silicosis diagnosis.   The court agreed, granting summary judgment and dismissing the complaint against Wilson Elser's client, thus eliminating the need for a trial.
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News
123 Wilson Elser Attorneys Named to The Best Lawyers in America 2027 List
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 
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Events
Emerging Trends and Landmark Decisions: Lawyers’ Liability
Kimberly E. Blair (Partner-Chicago) and Maxwell L. Billek (Partner-Madison, NJ) will present the Wilson Elser Forum webinar “Emerging Trends and Landmark Decisions in Lawyer’s Liability” on September 14, 2026. This program provides claims professionals, underwriters, and attorneys with updates on emerging trends, risk factors, and recent landmark decisions affecting lawyers’ liability and legal malpractice exposure. Kim and Max examine developing malpractice risks associated with generative AI, the growth of transactional malpractice claims, the impact of third-party litigation funding on claim resolution, and the continuing significance of conflicts of interest as a leading source of professional liability. Recent case law on vicarious liability, fee-sharing and ethics obligations, proximate causation standards, fiduciary duties in settlement communications, and litigation privilege are also addressed. By the end of the presentation, participants will be better equipped to identify evolving malpractice risks, understand current legal standards governing professional liability, and implement practical risk-management strategies in their practices.
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Publications
NV Supreme Court Vacates $5.5M Judgment Over Excluded Medical Records
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.
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Publications
SB 54 Is in Effect: What California's New Packaging Law Means for Your Business
Although challenged by an injunction filed on August 20, 2026, by a coalition of 17 states, California’s SB 54 Plastic Pollution Prevention and Packaging Producer Responsibility Act is now in effect, and companies that sell, distribute, import, or ship packaged products into California should be evaluating whether they have compliance obligations. SB 54 creates an extended producer responsibility (EPR) program for single-use packaging and single-use plastic food service ware, shifting end-of-life management costs from local governments and taxpayers to covered “producers.” The final implementing regulations took effect on May 1, 2026. The law is particularly important for consumer brands, retail and e-commerce companies, apparel and footwear companies, food and beverage businesses, food-service companies, private-label sellers, distributors, importers, and any business shipping packaged goods into California or other states with packaging EPR laws. What Is SB 54? SB 54 establishes a statewide EPR program for “covered material,” which generally includes two categories: 1. Single-use packaging—materials used to contain, protect, handle, deliver, or present goods, such as product packaging, display or grouped packaging, and transport packaging 2. Single-use plastic food service ware—plastic food-service items such, as trays, plates, bowls, clamshells, lids, cups, utensils, straws, and certain wraps or bags used by food-service establishments. The “producer” definition is broad. It can reach brand or trademark owners, licensees, and, if those entities are not in California, sellers or distributors placing products using covered material into California. Out-of-state and e-commerce sellers may, therefore, be within the statute’s scope when products are delivered to California purchasers. SB 54’s key targets phase in over the following dates: January 1, 2027: Producers must achieve a 10 percent reduction in single-use plastic packaging. January 1, 2028: Producers must achieve a 30 percent recycling rate for plastic covered material. January 1, 2030: Producers must achieve a 20 percent reduction in single-use plastic packaging, and plastic materials must meet a 40 percent recycling rate. January 1, 2032: Full compliance goals take effect: single-use plastic packaging and food service ware must see a 25 percent source reduction, achieve a 65 percent recycling rate, and 100 percent of single-use packaging sold must be fully recyclable or compostable. The first major compliance checkpoint has already passed: producers were required by June 1, 2026, to join Circular Action Alliance (CAA), register with CalRecycle as an independent producer, or apply for the small-producer exemption. CAA is California’s first approved producer responsibility organization, and program implementation is targeted to begin on or before January 1, 2027. What Does This Mean for Businesses? Companies should not assume SB 54 applies only to packaging manufacturers. The law can reach businesses that sell finished products in covered packaging, private-label sellers, online sellers, distributors, and importers depending on where the relevant brand owner, licensee, seller, or distributor sits in the chain. For potentially covered companies, the practical compliance burden is data-driven. Businesses will need to understand what packaging they place into the California market, who is responsible for reporting it, how the packaging is categorized, whether any exemptions apply, and how California obligations coordinate with other state packaging EPR programs. The small-producer exemption generally applies to entities with less than $1 million in California gross sales, but producers still must register or apply, and CalRecycle may deny the exemption if it would impair compliance for a covered material category. EPS food service ware is already a live issue because the required 25 percent recycling-rate threshold has not been met, meaning producers are prohibited from selling, offering for sale, distributing, or importing EPS food service ware into California. Companies making “recyclable” claims also should evaluate California SB 343 because SB 54’s recyclability framework is tied to California’s “Truth in Recycling” criteria. Noncompliance can carry penalties of up to $50,000 per day per violation. Impact on Small and Emerging Businesses A byproduct of the internet age is that many companies can be formed with very little legal governance and compliance infrastructure. Yet these producers and sellers are still subject to the law. With many companies and individuals starting businesses on Etsy, TikTok Shop, Instagram, and other digital platforms, depending on whether they do well, they can find themselves squarely impacted by SB 54’s requirements. The scope of potential impact is significant. CalRecycle’s Regulatory Impact Assessment estimates that the regulations will directly affect 5,741 regulated producers (i.e., those with annual gross sales of $1 million or greater) and 7,874 small producers eligible for exemption. An additional 546,269 non-regulated businesses—including retailers, wholesalers, and restaurants—will be indirectly affected. Platform sellers are particularly vulnerable. According to Business of Apps, Etsy alone has approximately 8.7 million active sellers globally, with the majority based in the United States. TikTok Shop has over 500,000 U.S. merchants registered. Many of these sellers ship packaged goods to California customers and may not be aware of their SB 54 obligations. These sellers typically lack in-house legal counsel and may not be monitoring California regulatory developments. The small-producer exemption does not eliminate obligations. Producers with less than $1 million in California gross sales may qualify for the small-producer exemption, but this exemption is not self-executing. Even exempt producers must register with CalRecycle and substantiate their eligibility. CalRecycle retains the authority to deny the exemption if it would impair compliance for a covered material category. Moreover, the exemption does not relieve producers of the obligation to ensure their packaging is recyclable or compostable by 2032. For small businesses and platform sellers, key action items include: Determine whether you are a “producer” under SB 54 based on the packaging used to ship your products to California customers. If you qualify as a small producer, register with CalRecycle and apply for the exemption. Failure to do so may result in enforcement action. Begin evaluating your packaging materials for recyclability and compostability, as the 2032 requirements will apply regardless of producer size. Monitor whether the platforms on which you sell (e.g., Etsy, TikTok Shop, Amazon) implement compliance mechanisms that may cover their sellers. Litigation and Regulatory Uncertainty SB 54 and related California packaging laws are subject to significant litigation and regulatory uncertainty. Companies should monitor developments in such actions, which include: NRDC and Californians Against Waste v. CalRecycle In June 2026, NRDC, Californians Against Waste Foundation and Oceana, Inc. formally filed a lawsuit challenging CalRecycle’s final implementing regulations, arguing that CalRecycle created unlawful loopholes exempting certain plastic packaging and allowing “polluting technologies,” such as chemical recycling to count toward recycling targets. The petitioners claim that the final regulations are “invalid because or to the extent they are inconsistent with the Plastic Pollution Prevention and Packaging Producer Responsibility Act,” and “that they are arbitrary and capricious, and without rational basis.” This challenge could result in modifications to the regulatory framework and affect how producers demonstrate compliance. SB 343 Preliminary Injunction On July 14, 2026, the U.S. District Court for the Southern District of California issued a preliminary injunction blocking enforcement of SB 343, California’s “Truth-in-Recycling” law, in California League of Food Producers et al. v. Bonta, Case No. 3:26-cv-01675 (S.D. Cal.). The court found that the plaintiffs—a coalition of 18 trade organizations—were likely to succeed on claims that: (a) certain SB 343 requirements are unconstitutionally vague under the Fourteenth Amendment, and (b) the law’s restrictions violate the First Amendment because the state failed to demonstrate the restrictions would materially advance its interests. Multi-State Challenge to SB 54 A separate lawsuit has been filed by 17 states, including the National Association of Wholesaler-Distributors as the sole business plaintiff, challenging SB 54 itself on Dormant Commerce Clause, Free Speech, and Due Process grounds. This challenge contends that SB 54 impermissibly regulates interstate commerce and imposes burdens on out-of-state producers that exceed California’s legitimate regulatory authority. On August 20, 2026, the 17-state coalition filed a motion for a preliminary injunction, asking the U.S. District Court for the Eastern District of California to block enforcement of SB 54 while the coalition’s challenge proceeds. If successful, this challenge could invalidate or substantially modify SB 54’s application to out-of-state companies. Practical Implications Despite this litigation, companies should not delay compliance efforts. Preliminary injunctions can be reversed, and SB 54’s registration and reporting deadlines remain in effect unless separately enjoined. Moreover, while the suspension of SB 343 is significant, it does not limit the legal risks associated with other recyclability claims, and companies making representations should continue to evaluate their exposure under California’s false advertising statutes, the Federal Trade Commission’s’ (FTC) Green Guides, and consumer class-action litigation challenging environmental marketing claims. Companies should continue to monitor the legal developments and the adjacent statutes and consult counsel regarding the implications for their specific compliance strategies. Other States to Watch California is part of a broader state-packaging EPR trend. Several other states—including Colorado, Maine, Oregon, Minnesota, Maryland, and Washington—have enacted packaging EPR programs, with additional proposals and adjacent measures continuing to emerge. This remains a rapidly developing area, and companies should monitor additional state legislation. For companies operating nationally, the key issue is harmonization: each state may use different definitions, registration timelines, reporting requirements, fee structures, and exemptions. A packaging data system built only for California may not be sufficient for multi-state compliance. Recommended Next Steps Confirm whether your organization is a “producer” under SB 54 and, if so, verify that registration obligations have been met. Audit your packaging portfolio to identify covered materials and determine recyclability status under current California standards. Assess the impact of the SB 343 preliminary injunction on your recyclability determinations and labeling practices. Monitor the pending multi-state challenge and the NRDC lawsuit for developments that may affect the regulatory framework. Evaluate whether your California compliance systems can scale to address emerging packaging EPR requirements in other states. Consider engaging legal counsel to develop a coordinated multi-state compliance strategy. * * * This client alert is for informational purposes only and does not constitute legal advice. Companies should consult with legal counsel regarding their specific compliance obligations under SB 54 and related state packaging EPR programs.
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Publications
CIPA in the Digital Age: What Businesses Need to Know About the Variety Media Appeal
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.
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