.

Bruce handles complex intellectual property and commercial disputes that are critical to his clients.

Bruce has over thirty years of experience specializing in the litigation of intellectual property disputes, primarily focusing on trademarks and copyrights. He has represented numerous companies, both large and small, in the prosecution and defense of claims for trademark and trade dress infringement, trademark counterfeiting, trademark dilution, cybersquatting, copyright infringement and false advertising.

Bruce also specializes in commercial disputes involving intellectual property, with a particular focus on licensing matters. Bruce has represented numerous suppliers and manufacturers of apparel, accessories, jewelry and related items, as well as theatrical producers, publishers and entertainment figures, in commercial cases involving claims for breach of contract, fraud, tortious interference and related causes of action.

Bruce is also a member of the Commercial and Consumer Arbitration Panels of the American Arbitration Association. Bruce has served as an arbitrator in multiple proceedings, mostly involving intellectual property matters and related contract / commercial disputes.

Other experience includes counseling regarding various intellectual property matters, the prosecution of applications for trademark and copyright registration, licensing matters, the preparation of rules for contests and sweepstakes, and a broad range of general commercial and contract litigation. Bruce has previously held significant leadership roles within the firm, including serving as the head of the Trial Department in the New York office and as Co-Chair of the firm’s Intellectual Property Litigation practice group.

Select Experience

  • Ultra Records, Inc. v. Ultra International Music Publishing, LLC, 22-cv-9667 (AS), 2025 U.S. Dist. LEXIS 33338 (S.D.N.Y. Feb. 25, 2025) (obtained plaintiff’s verdict on claims for trademark infringement, unfair competition and dilution after six-day jury trial and subsequent bench proceeding; permanent injunction enjoining future use of ULTRA trademark issued)
  • GROWMARK, Inc. v. Serrala Group GmbH, 2024 TTAB LEXIS 306 (TTAB 2024) (sustaining opposition filed by owner of FS trademark and directing refusal of application to register)
  • GROWMARK, Inc. v. FS Vector, LLC, 2024 TTAB LEXIS 196 (TTAB 2024) (sustaining opposition in substantial part brought by owner of well-known FS trademark)
  • Synergy Microwave Corp. v. Institute of Electrical and Electronics Engineers, Inc. et al., 2023 N.J. Super. Unpub. LEXIS 19 (App. Div. 2023) (affirming dismissal of contract and tort claims brought against non-profit membership organization and individual volunteers)

Education

  • Columbia Law School (J.D., 1992)
  • Brown University (B.A., 1988)

Bar Admissions

  • New Jersey
  • New York

Court Admissions

  • U.S. Supreme Court
  • U.S. Court of Appeals for the Second, Fourth, Ninth, Tenth, and Federal Circuits
  • U.S. District Courts for the Southern, Eastern, Northern, and Western Districts of New York, the District of New Jersey, and the Eastern and Western Districts of Michigan

Professional Affiliations

  • Chair, INTA International Amicus Committee, 2006-2007
  • Vice Chair, INTA International Amicus Committee, 2004-2005
  • Member, INTA Select Committee on the Federal Trademark Dilution Act, 2003
  • Panel Member, American Arbitration Association, 2024-2026

AAA Panel member 2025

Accolades

  • Chambers USA, Intellectual Property: Trademark, Copyright & Trade Secrets, New York, 2010-2026
  • Best Lawyers in America®, 2005-2026
  • New York Metro Super Lawyers®, 2006-2026
  • World Trademark Review 1000 – The World’s Leading Trademark Professionals, Leading Practitioner, 2013-2026
  • Managing IP, IP Star, 2019-2025

Select Presentations

  • Speaker, Practicing Law Institute, “Understanding the Intellectual Property License,” New York, New York, 2012-2017; Chair 2018-2023

Insights

Blog Post

Second Circuit Calls Foul On Unauthorized Use of Michael Jordan Video

April 30, 2026

Michael Jordan is best known for his offensive skills, but his defense was an underrated aspect of his play; he was 1998 Defensive Player of the Year, after all. So it’s fitting that he features prominently in a recent decision from the Second Circuit Court of Appeals in which three (or maybe two) defenses to claims of copyright infringement were at issue: (1) fair use; (2) de minimis use; and (3) license. While the District Court thought all of those defenses passed muster and doomed the plaintiff’s claims, only the third scored for the defendant on appeal. Oh, and let’s not forget that there were other celebrities making prominent cameos in this opinion – Grandmaster Melle Mel, Eminem and Fifty Cent – as if we were courtside at the Garden at the turn of the last century. Our story opens in 2015, when plaintiff Delray Richardson found himself in the right place at the right time – if by “right place” we mean the site of a brawl between a “gang member” (Richardson’s characterization) and one of Michael Jordan’s bodyguards. Richardson happened to be present and recorded the fight that was broken up by none other than Jordan himself. Richardson took his video, which is grainy and only 45 seconds long, and published it in 2015. But no one seems to have noticed, or cared, at least at the time. Fast forward to 2023, when the DailyLoud, a hip-hop blog, shared the video on X and claimed that the two fight participants were actually rapper Wack 100 and YouTube personality Charleston White, who the DailyLoud asserted was on site but just out of the video frame. White denied this allegation, but the controversy was such that defendant Townsquare Media published an article about it on Townsquare’s online hip-hop news publication XXL, under the headline “Michael Jordan Intervenes in Heated Confrontation Involving Wack 100 in Viral Video From 2015 – Watch.” (Aside: How “viral” could this video have been if no one noticed it for eight years? Just sayin.) The Townsquare article embedded the DailyLoud’s X post, including its republication of the entire Jordan video shot by Richardson. And a screenshot from the video was used as the background for the Townsquare headline. That screenshot, per the Second Circuit, “shows Jordan towering over the person claimed to be Wack 100 to his right and using his right arm to restrain that person from moving toward Jordan’s left; it could plausibly be inferred that Jordan was keeping that person away from someone standing to Jordan’s left outside the frame of the image.” But the unauthorized use of his Michael Jordan video was not Richardson’s only beef with Townsquare. Sometime after 2015, Richardson and an entity called The Art of Dialogue interviewed the legendary rapper Grandmaster Melle Mel. A roughly three-minute excerpt of that interview was published on YouTube in 2023 by The Art of Dialogue, entitled “Eminem Being White Is The Reason He’s A Top 5 Rapper Of All Time. If He Were Black He’d Be Average!” Townsquare promptly published an article on XXL about Melle Mel’s criticism of Eminem by, again, embedding the video from The Art of Dialogue’s YouTube channel, and yet another screenshot from that video was used as the background for the Townsquare headline, along with an image of Eminem. Two days later, after Fifty Cent came to Eminem’s defense, Townsquare published another article on this feud, once again embedding the Melle Mel video from The Art of Dialogue’s YouTube channel, but with a different screenshot from the same video and an image of Fifty Cent. The Jordan video article and the Melle Mel articles prompted Richardson to go on offense against Townsquare and sue it for copyright infringement in the Southern District of New York. But District Judge Hellerstein ejected Richardson from the courthouse by granting Townsquare’s motion for judgment on the pleadings, holding that its use of the Jordan video were fair; the screenshots were de minimis uses that did not give rise to liability; and the use of the Melle Mel video was properly licensed from YouTube. Undaunted, Richardson took his claims to a higher court and scored wins on two of the three defenses Townsquare asserted, and that the District Court accepted. On fair use, the Second Circuit thought that the issue couldn’t be assessed at such an early stage. Recall that there are four statutory fair use factors – (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount of the portion of the work used, relative to the whole; and (4) the effect of the alleged fair use on the market or value of the plaintiff’s work. On the first factor, the Second Circuit thought the use of the Jordan video might qualify as transformative because Townsquare was reporting on the controversy about who was fighting with who in 2015, and that would have tilted this fair use factor in favor of Townsquare. But the problem for Townsquare was that when an article is published under the headline “Michael Jordan Intervenes in Heated Confrontation Involving Wack 100 in Viral Video From 2015 – Watch,” without a lot of commentary about the video, the less transformative it becomes. Per the Second Circuit, “there is a difference between gesturing towards a transformative message and actually communicating that message,” and given that Townsquare’s article was (at least for purposes of a pre-discovery motion ) for a commercial purpose, this factor didn’t weigh that much in favor of Townsquare, if at all. The second fair use factor did, because the Jordan video was both published and factual – characteristics that cases have held weigh in favor of fair use. But the third factor didn’t, because Townsquare published the entire video and, for present purposes, its claims that it had to publish the entire video by embedding it on the XXL website were rejected by the Second Circuit. The last fair use factor was the killer for Townsquare, because it was possible that Townsquare’s unauthorized use was a market substitute for Richardson’s video. Indeed, if there were a market for the Jordan video (a big “if” that the Second Circuit said was an allegation that might not pan out), it’s hard to see why anyone would pay Richardson for content they could obtain through Townsquare and XXL for free. So, given all of these uncertainties – and recognizing that Townsquare might have a better shot (from downtown?) after discovery – the Jordan video claims were sent back to the District Court. So too were the claims about both the Jordan and Melle Mel screenshots, because the Second Circuit rejected application of the de minimis defense, which the court noted is less of a defense and more a failure by the plaintiff to establish a prima facie case of infringement. Essentially, there is a line of cases recognizing that when a copyrighted work is used in another work without authorization in a fleeting or insubstantial manner – usually to the point where the copyrighted work is not at all or barely recognizable – or when only a tiny fraction of the copyrighted work is used, there is insufficient similarity for an infringement claim to be viable. But here, the defense had no applicability. The screenshots of Jordan and Melle Mel were posted as the backdrops for the headlines of three articles and were readily recognizable and identifiable. It therefore didn’t matter that one or two frames from the videos were used, especially in light of the protection the Copyright Act gives to “the individual images of a motion picture or other audiovisual work.” 17 U.S.C. § 1065. So, Richardson’s screenshot claims lived to see another day. But not so his claim on the Melle Mel video, because of the decision by The Art of Dialogue to publish the interview on its YouTube channel. Perhaps unbeknownst to Richardson, if you upload a video to YouTube, you are granting not just a license to YouTube to publish your content on its site, but a license to other YouTube users to access your content and reproduce or distribute it so long as such secondary uses are “enabled” by YouTube – with video playback or embeds specifically covered by the license. Since all Townsquare did was embed the video as accessible on YouTube on the XXL page, through the YouTube player, the license provided Townsquare with a complete defense on Richardson’s infringement claim premised on unauthorized use of the Melle Mel video. (FYI – Townsquare didn’t argue that the license also covered the use of a screenshot from the video, presumably because that screenshot was not “enabled” by YouTube.) So, what does this case tell us? Three things: As has long been the case, it is very difficult to establish a fair use defense prior to the completion of discovery, at least in the Second Circuit. The de minimis defense probably won’t apply if the plaintiff’s work, or a material portion of it, is readily recognizable in the accused work. Copyright owners of audiovisual works who upload their content to YouTube are authorizing the use of that content anywhere, by anybody, so long as that subsequent use is “enabled” by YouTube. Unfortunately, the decision doesn’t tell us who really was involved in the 2015 brawl; why the donnybrook occurred; what Michael Jordan thought of the whole affair; how Eminem reacted to criticism from Melle Mel; or why Fifty Cent jumped into the middle of this controversy. Sadly, while these are all things that most people would actually care about, intellectual property aficionados will have to be content with the clearly-articulated copyright law principles the Second Circuit has given us.

Blog Post

I Don’t Get You, Babe – The Curious Copyright Case of Sonny & Cher & Mary

June 6, 2024

  The 1970s were the heyday of the now-extinct television genre known as the variety show: a weekly extravaganza headlined by a well-known entertainer, generally accompanied by a supporting cast of singers, dancers and comedians, and featuring a weekly guest star to liven things up. Among the longest lasting of these weekly spectacles was The Sonny & Cher Comedy Hour, which premiered in 1971 and featured the eponymous 1960s singing duo. Sonny (born Salvatore Bono) and Cher (nee Cherilyn Sarkisian) met in 1962, when Cher, then 16 and a recent high school dropout, approached Sonny, then an up-and-coming songwriter, about breaking into the music business. Sonny helped Cher become a backup singer on many recordings helmed by legendary music producer (and later convicted murderer) Phil Spector, before transitioning to a lead performer with Sonny, performing as Sonny & Cher. The pair, by now dating and sharing a great mutual Love and Understanding, scored multiple hits in the 1960s, including their signature song I Got You Babe, and others like Bang Bang (My Baby Shot Me Down) and Baby Don’t Go, mostly written or co-written by Sonny, who had also written hits for a number of other artists. In 1971, the pair agreed to star in a variety show that would also help transition Cher to a successful solo career; she would top the charts in the early 70s with hits like Gypsies, Tramps and Thieves and Half Breed. The Sonny & Cher Comedy Hour featured lavish production numbers; bigtime guests like Carol Burnett, George Burns, Ronald Reagan, The Jackson 5, and Burt Reynolds; daring Bob Mackie gowns; and caustic banter between the two stars (mostly about Sonny’s short stature). For a time, the show was a hit, and it ran for three successful seasons. Unfortunately, The Sonny & Cher Comedy Hour came to an unfortunate end, coinciding with the end of the Sonny & Cher marriage. The couple had wed in 1969 after the birth of their only child, now known as Chaz Bono; Sonny had a daughter, Christine, by an earlier marriage. But enterprising television executives were not going to let a pesky divorce get in the way of a solid ratings hit. CBS simply rebranded its program as The Cher Show and the Beat Went On as if Sonny had never been a part of the program. For his part, Sonny nabbed his own show on ABC, The Sonny Comedy Revue, which was a ratings flop. And The Cher Show was not all that successful either – the American public wanted Sonny & Cher together, and that is what they got in 1976, when Sonny & Cher reunited for the third iteration of their CBS show, The Sonny & Cher Show. Unfortunately, the now divorced couple could not recapture the magic of the original program, for cutting quips about the loving foibles of a happily married couple now came across as (and up to a point, were) bitter putdowns of estranged exes. This third and last iteration of their show marked the end of the Sonny & Cher entertainment partnership. The two never performed again together except for a 1987 appearance on The David Letterman Show. Time went on. Cher Found Someone, remarrying (briefly) the rock star Greg Allman, and she had another child with him. She also rebuilt her successful solo music career, then transitioned to acting and scored multiple Oscar nominations, winning for Moonstruck in 1988. Her music career has been even more long-lasting, with one hit song after another running into the 2000s. For his part, Sonny pursued a reasonably successful acting career and likewise remarried, to Mary Whitaker, in 1986. The couple had two children of their own, Chesare and Chianna, while Sonny was transitioning to a most unexpected new career: politician. Sonny was elected Mayor of Palm Springs in 1988, and then was elected to the U.S. House of Representatives in 1994. But, sadly, Sonny was killed in a skiing accident in 1998. At his widow Mary’s request, Cher gave one of the principal eulogies at his funeral, delivering one of the most moving, heartfelt tributes you will ever hear. In his honor, the 1998 revision to the US Copyright Act was named the Sonny Bono Copyright Term Extension Act. It is the events after Sonny’s death that give rise to this blog post. For all of his many music, business and political accomplishments, Sonny botched his estate planning: there was none – he died without a will (oy!). Mary, who had succeeded Sonny in Congress, serving until 2013, was appointed administrator of his estate. Among the estate’s creditors was Cher, who asserted her rights under an August 10, 1978 Marriage Settlement Agreement (the “MSA”). The MSA was meant to resolve all of the financial aspects of the Sonny & Cher divorce, and consistent with California’s community property laws, it granted Cher “an undivided 50% interest” in two revenue sources. The first was record royalties – royalties payable to performers when physical or digital copies of the recordings on which they sang are sold or downloaded – payable to Sonny under various recording contracts he entered into between 1964 (when he started dating Cher) and 1971. The second were composition royalties – royalties payable to songwriters whenever their compositions are recorded, played, performed, streamed, or licensed. Composition royalties tend to be more lucrative (depending on the popularity of the song) than record royalties. Mary, as estate administrator, recognized Cher’s rights to these royalties under the MSA, and Cher received her percentages of both royalties for nearly two decades after Sonny’s death. Cher and Mary also cooperated, per the MSA, in agreeing to the appointment of an administrator to collect and disburse both types of royalties. That administrator was entitled to receive 10% of both types of royalties under the MSA in consideration for their work. The apparently harmonious relationship between Cher and Mary began to hit the skids in 2016, when Mary invoked Section 304(c) of the US Copyright Act. That provision of the statute authorizes a copyright owner or grantor (if they are living), or their statutory heirs (if they are not) to terminate prior copyright grants or licenses for works created before January 1, 1978 in certain circumstances, and on particular timetables, by sending a notice of termination to the grantees/licensees. By sending such a notice, the copyright owner or their heirs can recapture their rights and, potentially, monetize their copyrighted works on more favorable terms. Mary sent such termination notices to a number of music publishers, specifying effective termination dates between 2018 and 2026. Cher was not told about the issuance of these termination notices, nor were the MSA and the Sonny & Cher recording contracts mentioned in the notices. But in 2021, Cher learned not only that Mary had ceased paying her composition royalties, as the prior grants from Sonny to various music publishers began to terminate, but that Mary was taking the position that the MSA no longer applied, at least as to composition royalties, and that Cher would also cease to receive Sonny’s share of record royalties when/if Mary chose to terminate the 1964-71 recording contracts and renegotiate them. Cher could not Believe that Mary was taking such a position, accused Mary of being a Dark Lady, and claimed Mary was trying to Turn Back Time to the period before the Sonny & Cher divorce. Cher therefore sued Mary in the U.S. District Court for the Central District of California, accusing Mary of breaching the MSA and seeking a declaratory judgment that the MSA’s obligations remained binding, termination notices or not. For her part, Mary lodged counterclaims against Cher for breach of the MSA because Cher had refused to consent to the continued appointment of the royalty administrator, and had objected to Mary’s plan to create a new royalty administration entity that she and Sonny’s four children would own. (Mary had Sat Down With the Kids, including Chaz, and apparently worked this out.) Mary also wanted the Court to declare that Mary could negate Cher’s interest in the Sonny & Cher recording contracts if Mary chose to terminate and renegotiate them. One added wrinkle to this case: after it was filed, in January 2023, Cher sold all of her rights in her song catalog, including her rights in the MSA, to an unnamed third party for an unknown amount of money. Last week, after several years of litigation in which both sides were presumably on Needles and Pins, the Court resolved the dispute by largely siding with Cher. It rejected Mary’s argument that the termination/recapture provisions of Section 304(c) relieved Mary of her obligations under the MSA, largely for two reasons. First, the MSA was not a copyright grant that could be terminated under the statute, but a contract dividing revenue between Sonny & Cher. In other words, Sonny did not grant Cher an interest in his copyrights, but simply agreed to divide with her the revenue produced by those copyrights. Because there was no grant of any copyright interests to Cher, there was nothing Section 304(c) could terminate. Second, Section 304(c) authorizes termination of “the exclusive or nonexclusive grant of a transfer or license of the renewal copyright or any right under it, executed before January 1, 1978.” The MSA was executed on August 10, 1978, and the Court rejected Mary’s argument that it was the date of Sonny’s prior grants that mattered, as opposed to the MSA’s execution date. Mary did score a partial victory on the royalty-administrator issue, as the Court found that Mary had sole discretion to select the royalty administrator, even one she created, but Cher could object to the terms of the appointment, including on things like fees and the administrator’s qualifications. So is this the final chapter of the Sonny & Cher business partnership? Not yet – Cher’s 2023 sale of her interest in the MSA left the Court uncertain about who should be paid certain royalties accruing during the pendency of the lawsuit – Cher or her anonymous buyer. So that issue remains to be resolved, meaning that, for now, Cher & Mary will have to continue Living in a House Divided, until the case is finally resolved.

Additional Information

  • Principal Author of amicus briefs filed on behalf of International Trademark Association in Dastar Corp. v. Twentieth Century Fox Film Corp., 540 U.S. 806 (2003) (limiting applicability of claims for reverse passing off under Lanham Act section 43(a))
  • ITC, Ltd. v. Punchgini, Inc., 9 N.Y.3d 467, 880 N.E.2d 852 (2007) (specifying contours of New York law of unfair competition as applied to well-known marks used only overseas but possessing a reputation in New York)

Firm Highlights

News

Dorsey Partner Melissa Raphan Elected a Fellow of the College of Labor & Employment Lawyers

International law firm Dorsey & Whitney LLP is pleased to announce that Partner Melissa Raphan has been elected a Fellow of the College of Labor & Employment Lawyers (CLEL) as part of its 2026 class. “Melissa’s election to this prestigious fellowship comes as no surprise to those of us who have had the privilege of working with her,” says Peter Nelson, Dorsey’s Managing Partner.  “She is an exceptional employment lawyer, a trusted advisor, and a leader whose impact extends far beyond her matters. Clients rely on her deep knowledge, strategic counsel, and ability to navigate complex workplace disputes and sensitive employment matters with both confidence and compassion. She has helped shape our firm, strengthen our profession, and opened doors for countless others through her commitment to mentorship and diversity. We are incredibly proud of her accomplishments and delighted to see her receive this recognition.” CLEL is a nonprofit professional association that honors the nation’s leading attorneys in the field of labor and employment law. Originally established to recognize excellence in the profession, CLEL has evolved into a respected intellectual and practical resource for the legal community and its many audiences. Its mission centers on recognizing individuals who have made significant contributions to the field, fostering the exchange of knowledge and delivering value to academia, government, the judiciary, and the broader public. Election as a fellow represents the highest level of peer acknowledgment, reflecting sustained achievement, integrity, and a commitment to advancing the profession. Melissa’s career reflects CLEL’s mission. She has been recognized both regionally and nationally for her advocacy, leadership, and achievements both inside and outside of the courtroom. Her employment litigation experience spans class actions, collective actions, and high-stakes individual disputes in state and federal courts, as well as arbitration forums including the American Arbitration Association and the Financial Industry Regulatory Authority (FINRA). She is also a trusted advisor on a full range of workplace issues, from hiring and performance management to sensitive terminations and organizational change. She brings decades of experience representing clients across the financial services, healthcare, food and agriculture, and energy sectors. Melissa will be formally inducted during CLEL’s installation ceremony held in conjunction with the American Bar Association’s Labor & Employment Law Conference in Washington, D.C., on November 7.

Insights

Proposed CMS Rule Ramps Up Potential Medicare Fraud Administrative Remedies

On July 6, 2026, the Centers for Medicare & Medicaid Services (“CMS”) proposed a rule that would expand its administrative remedies to combat potential fraud. The proposed rule is the latest in a round of administrative actions that signal CMS’s intent to aggressively pursue allegations of Medicare and Medicaid fraud and heighten the risk of fraud enforcement against even well-intentioned Medicare and Medicaid providers and suppliers. The proposed rule includes several changes to regulations that govern Medicare billing privileges. Providers and suppliers should be aware that these changes dramatically expand the flexibility afforded to CMS in enrollment and revocation actions, potentially leading to harsh consequences for ministerial and administrative errors. If finalized, moreover, the proposed rule could have material implications for providers and suppliers facing threatened revocation, including heightened risk of overpayment liability and increased hurdles to challenging revocations and denials of enrollment. Added Flexibility to Existing Revocation Grounds CMS has proposed to remove a number of factors that the regulations list as relevant to a determination of whether a provider has engaged in “abuse of billing privileges.” While acknowledging that the inclusion of these factors in the regulations was permissive (requiring consideration only where “as appropriate or applicable”), CMS stated that it must be afforded “the maximum flexibility to address all possible . . . scenarios without the rigid constraints of our existing factors.” CMS provided little guidance as to the outer bounds of what conduct could constitute an “abuse of privileges” that merits revocation of Medicare billing privileges. Instead, CMS noted that a “pattern of practice” of abuse of billing privileges might be established “by a simple finding that several of a provider’s claims do not meet Medicare requirements.” Similarly, CMS has proposed to expand the regulatory provision that permits revocation of enrollment if a provider certifies as “true” false or misleading information in Medicare enrollment application or renewal forms to include any scenario in which a provider submits “false or misleading information on or associated with any CMS Medicare enrollment-related form,” including materials submitted to Medicare contractors. CMS stated that it interprets this expanded rule to include anything related to Medicare enrollment, and not only those submissions that are “intended to gain or maintain Medicare enrollment.” If finalized, the proposed rule would add significant flexibility to CMS’s ability to pursue revocation of a provider’s enrollment. While CMS has assured providers that it would “invoke [the revised regulations]. . . only when legitimately warranted under the facts and circumstances and not as a matter of course,” such expanded flexibility threatens unpredictability in the event of even administrative or ministerial errors in submissions and claims. These changes would, moreover, make it more difficult for providers to challenge a revocation action. Expanded Revocation Grounds In addition to adding flexibility to existing grounds for revocation, CMS’s proposed rule adds to and expands CMS’s already broad authority to revoke provider and supplier enrollment. Such proposed changes include adding the following grounds for revocation: Denial of Enrollment Application. Where CMS could previously revoke a provider’s other enrollments if one enrollment is revoked, CMS would also be able to revoke a provider’s existing enrollments if an application for enrollment submitted by the provider is denied. High-Risk Enrollments. CMS would be able to revoke enrollment if it determines the provider or supplier (including owning/managing employees or organizations) poses a high risk of fraud, waste, or abuse due to “. . . an affiliation under [42 C.F.R.] § 424.519” or “the provider’s or supplier’s location within a limited geographic area that has an excessive number of providers and suppliers.” Certain Misdemeanor Convictions. CMS would be able to revoke enrollment if a provider or supplier—or its owners, managing employees, managing organizations, officers, or directors—are convicted of a “misdemeanor related to sexual assault or financial misconduct within the past 10 years that CMS deems detrimental to the best interests of the Medicare program and its beneficiaries.” Ownership Changes (HHA, Hospice, DMEPOS). CMS would have broad authority to revoke enrollment of home health agencies, hospices, and DMEPOS suppliers who do not comply with the regulations governing provider changes of ownership. These proposed, expanded grounds for revocation are notably broad, and CMS provides only limited guidance as to what conduct might result in revocation under these grounds. As with the proposed expansion of existing grounds for revocation, the open-ended nature of these proposed grounds for revocation may make it more difficult for providers and suppliers to challenge revocation actions. Expanded Grounds to Deny Medicare Enrollment As with revocations, CMS proposes to expand the grounds under which a provider’s application to enroll in Medicare can be denied. These expanded and additional grounds include many of the grounds added for revocations, but also include: Medicare Debt or Payment Suspension. CMS proposes expanding the ground to deny enrollment based on Medicare debt or payment suspension to include a provider or supplier’s “managing employee, managing organization, or individual or entity with any other form of business or financial relationship with the provider or supplier[.]” Significantly, this expansive definition (called an “associated party” under the proposed regulation) currently contains no material limitations, meaning almost any person or entity with whom an applicant does business could create denial liability. Sharing Locations with Denied/Revoked Providers or Suppliers. CMS would have authority to deny applications where a “provider’s or supplier’s practice location is in the same suite or office as another provider or supplier whose Medicare enrollment has been revoked or denied.” Hospices with Distant Medical Directors or Administrators. CMS would have discretion to deny hospice applications if the hospice’s medical director or administrator serves “multiple other hospices” or practices/is located “at such a distance (for example, in a different state) from the enrolling hospice that the medical director cannot realistically perform all medical director functions,” with a similar provision for administrators. In addition, CMS proposes applications denied for “other program termination or suspension,” may be applied to the provider or supplier in its own name or NPI or that of its owners, managing employees, or managing organization regardless of whether any appeals are pending. Retroactive Revocation CMS proposed to restructure and expand the regulatory grounds for retroactive revocation of billing privileges. Currently, Medicare regulations provide that revocations are, by default, prospective in nature: effective 30 days after CMS or the CMS contractor mails notice to the provider. Under certain circumstances, the regulations provide for revocations to be retroactive, such as when a provider is convicted of a felony, the date a professional license is suspended, revoked, or surrendered, or when a provider submits a false certification in their enrollment application. CMS has proposed to reframe the rule so as to default to retroactive revocation of billing privileges. CMS expressed concern that providers may collect payment from Medicare while remaining so non-compliant with enrollment requirements as to merit revocation. To address this concern, CMS proposed that all revocations be retroactive to the date of determined non-compliance.[1] As a result, providers suspected of misconduct or non-compliance are likely to face claims of retroactive overpayments in addition to the immediate concern no longer receiving Medicare payments while their enrollment is revoked. Reapplication Bar CMS’s proposed rule expands the grounds from which a provider may be prohibited from seeking reapplication as a Medicare provider. Under current regulations, CMS may prohibit prospective providers from enrolling in Medicare for up to 10 years if its enrollment application is denied because the applicant submitted false or misleading information in its application. Under the proposed rule, CMS will have the discretion to prohibit a provider from enrolling in Medicare if their enrollment application is denied for any reason. Conclusion As a part of the federal government’s increasingly aggressive push to combat real or perceived healthcare fraud, the proposed rule both broadens CMS’s authority to revoke and deny Medicare enrollment and raises the stakes for revocation and denial. What the proposed rule does not share is how CMS plans to exercise this expanded discretion: as a result, the proposed rule, if enacted, increases the unpredictability and potential ramifications of even technical noncompliance with CMS rules. As a result, Medicare providers should keep a close eye on potential revisions to these rules and their potential implementation and consider proactively evaluating their compliance under CMS standards. [1] In the proposed rule, CMS identifies, with respect to each ground for revocation, what it will consider to be the effective date of revocation.

News

37 Dorsey Attorneys Named 2026 Top Lawyers by Minnesota Monthly

Minnesota Monthly has recognized 37 Dorsey attorneys across 27 practice areas as 2026 Top Lawyers in Minnesota. Honorees are selected through a peer nomination process and a curated survey of practicing attorneys in Minnesota, who identify leading lawyers across a range of practice areas. Administrative / Regulatory Law Jennifer Coates Antitrust Law Michael Lindsay Banking & Financial Service Law Peter Nelson Copyright Law  Jeffrey Cadwell Corporate Law  Robert Hensley Robert Rosenbaum Criminal Defense: White-Collar  Beth Forsythe Edward Magarian RJ Zayed Health Care Law  Claire Topp Immigration Law  J. Mike Sevilla Insurance Law  Daniel Brown Intellectual Property and Patent Law  Stuart Hemphill International Trade Law  Jonathan Van Horn Labor and Employment Law  Edward Magarian Ryan Mick Melissa Raphan Land Use & Zoning  Jay Lindgren Marcus Mollison Litigation – Antitrust  Michael Lindsay F. Matthew Ralph Jaime Stilson Litigation – Commercial  Michael Lindsay Litigation – Construction  Eric Ruzicka Litigation – Intellectual Property  Peter Lancaster RJ Zayed Litigation – Labor Employment Benefits  Ryan Mick Melissa Raphan Litigation – Trusts and Estates  William J. Berens Theresa Bevilacqua Bridget Logstrom Koci Mass Tort Litigation / Class Actions  James K. Langdon Mergers & Acquisitions Law  Keith Ahlgren Rachel Benedict Brian Burke Morgan Helme John Jorgenson Brian Moore Robert Rosenbaum Jonathan Van Horn Bri Whiting Municipal Law Jay Lindgren Nonprofit/Charities Law Claire Topp Securities / Capital Markets Law Cam Hoang Robert Rosenbaum Securities Regulation Theresa Bevilacqua James K. Langdon Tax Law William J. Berens Trusts and Estates Jennifer Ede Bridget Logstrom Koci Sonny Miller Kiley Petty Henry

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Alaska HB 126: What Changes for Alaska Native Corporations, Proxy Filings, and Annual Reports

Alaska House Bill 126 (HB 126), sponsored by Representative Neal Foster and passed by the 34th Alaska Legislature, is now law. The bill changes which Alaska Native Corporations (ANCs) must file proxy and annual report materials with the State of Alaska, and makes it easier to reinstate certain dissolved Village Corporations. For many smaller Village Corporations, the practical result is less public disclosure. For shareholders, advisors, and the public, it means some financial information that used to be available through the State will no longer be readily obtained. This eUpdate explains what HB 126 does in plain terms, walks through the practical trade-offs, and answers common questions. 1. What HB 126 Changes The old rule Under prior law (Alaska Statutes Sec. 45.55.139), an Alaska Native Corporation had to file its annual report, proxies, and proxy statements with the Alaska Division of Banking and Securities (the Division) if it had more than $1 million in assets and 500 or more shareholders on its current rolls. A filing ANC was also required to follow the Division’s proxy rules (3 AAC 08.305 through .365), which require specific disclosures such as top 5 executive compensation, and related-party transactions. Because these filings are treated as public records, they gave non-shareholders, including the public and the press, visibility into ANC financial information that is not filed with the SEC. The new rule HB 126 changes how the 500-shareholder test is measured. Now, the asset test is removed, and the shareholder count is based on how many shareholders the corporation originally enrolled when it was formed under the Alaska Native Claims Settlement Act (ANCSA), not how many it has today. As shares have passed down through families over the decades, some Village Corporations that started with fewer than 500 shareholders now have more than 500 recordholders. Under the old current-count test, when those corporations had crossed the threshold, they had to file. Under the new original-enrollment test, they do not. Who is affected Village Corporations that originally enrolled fewer than 500 shareholders are the main beneficiaries. They no longer have to file proxy and annual report materials with the Division or follow the Division’s proxy regulations at 3 AAC 08.305 through .365. Two groups must continue to file as before: all twelve ANCSA Regional Corporations, each of which enrolled more than 500 shareholders at creation, and all Village Corporations that originally enrolled 500 or more shareholders. As reported by the Alaska Beacon, when the bill was under consideration, the Division identified 59 corporations then filing, expected at least seven village corporations to become exempt, and was reviewing roughly 30 more. 2. Practical Analysis HB 126 reduces a real compliance burden for smaller Village Corporations, which now need not spend time and money on State filings. In coming years, the exempt Village Corporations may experience benefits associated with less public disclosure and less regulation. But at the same time, less public disclosure carries trade-offs. Benchmarking will become harder Publicly-filed proxy statements and annual reports have long served as a reference set. Shareholders, corporations, advisors, and counsel use them to compare governance practices, compensation, and financial results across similarly-situated ANCs. Since fewer of these materials will be filed publicly, there will be fewer comparable documents available, which will make benchmarking and market-checking more difficult for like-sized ANCs over time. Executive compensation transparency may be reduced The Division’s proxy rules require disclosure of the compensation of ANC’s top five most highly compensated individuals (3 AAC 08.345(b)(2)), related-party transactions above $20,000 (3 AAC 08.345(b)(3)), and audited financial statements and management’s discussion and analysis (3 AAC 08.365). When a corporation is no longer required to file these disclosures publicly, it becomes harder for shareholders and others to obtain the information, to understand how compensation is set for their corporate leadership, and how it compares across corporations of similar size and complexity. Transparency may matter more as ANCs grow Some ANCs have grown into large, complex enterprises with substantial revenue and many subsidiaries, even with fewer than 500 shareholders. For an ANC with a broad and dispersed shareholder base, public materials can be an important way for shareholders and other stakeholders to understand governance, compensation, and performance across ANCs. Reduced disclosure may carry more practical weight in those settings than for a small corporation whose shareholders are closely connected to the business. The ANCSA annual report obligation continues It is important not to overstate what HB 126 does. HB 126 changes the state filing proxy requirements. It does not remove the separate obligation under ANCSA itself. That obligation comes from ANCSA at 43 U.S.C. Sec. 1625(c), which requires a Native Corporation that would otherwise be subject to the Securities Exchange Act of 1934 to prepare and transmit to its shareholders an annual report containing substantially the information a company subject to that Act would include. Similarly, ANCs that solicit proxies for an annual meeting are still required to furnish shareholders with those proxy materials under general Alaska corporate law. However, ANCs are now no longer required to transmit proxy statements to the State. ANCs’ reporting obligations to their shareholders are unaffected by HB 126. Any corporation newly exempt from state filing still owes its shareholders a detailed annual report and a proxy statement, even though that report is no longer routed through the State and made public. Reinstatement of dissolved Village Corporations Separately, HB 126 amends AS 10.06.960(k) to remove the prior deadline (previously December 31, 2020) for reinstating an involuntarily dissolved Native Village Corporation. A dissolved Village Corporation may now apply to be reinstated under AS 10.06.633(e) at any time. Reinstatement still runs through the commissioner under AS 10.06.633(e). In general, that means the ANC must apply, cure the neglect or delinquency that led to dissolution, and pay the amounts owed, and the corporation’s name must be available or be changed to one that is. Once reinstated, the corporation and its shareholders are restored to the rights, privileges, liabilities, and obligations they would have had as if the dissolution had never occurred, and corporate and shareholder actions taken during the dissolution are treated as valid. If the previously-used corporate name is no longer available, the board alone may amend the articles to adopt a new name (without the necessity for shareholder approval). 3. Frequently Asked Questions What does HB 126 do? It changes how Alaska measures the 500-shareholder test that decides which ANCs must file proxy and annual report materials with the state. It removes the asset test, and it counts shareholders based on original enrollment rather than the current rolls. It also removes the deadline for reinstating an involuntarily dissolved Native Village Corporation. Which ANCs are affected? Village Corporations that originally enrolled fewer than 500 shareholders, because they may no longer need to file with the Division. Regional Corporations and Village Corporations that originally enrolled 500 or more shareholders must continue to file as before. Does HB 126 eliminate all reporting obligations? No. It changes the state filing requirement under AS 45.55.139, but it does not remove the separate ANCSA obligation (43 U.S.C. Sec. 1625(c)) to provide shareholders with an annual report, and general corporate law still calls for a proxy statement when the ANC solicits proxies. Corporations that remain subject to state filing requirements must also continue to comply with the Division's rules. We think we are now exempt. What should our ANC board and management consider? Confirm your ANC’s original enrollment number and whether your corporation falls below the new threshold. Watch for communications from the State on this topic as they proceed with their research. If your ANC is now exempt, decide how your corporation will meet its continuing ANCSA obligation to shareholders, review proxy and annual meeting materials and timelines, and consider what to communicate to shareholders about any change in how they will receive information. It is worth documenting the basis for any exemption. What should ANC shareholders watch for? Shareholders should watch for how and when they will continue to receive annual report and proxy statement information directly from their ANC, since some material that used to be available through the State’s online website will no longer be publicly filed. If something is unclear, shareholders can ask their ANC how it intends to meet its ANCSA reporting obligations. How Dorsey Can Help HB 126 lightens the State filing load for smaller Village Corporations, but it also raises practical questions: confirming who is exempt, meeting continuing ANCSA obligations to shareholders, keeping proxy and annual meeting processes on track, and maintaining benchmarking when public materials become less available. These are exactly the kinds of judgment calls that benefit from early planning. Dorsey’s attorneys work closely with Alaska Native Corporations and related stakeholders. If you have questions about HB 126, ANC governance, proxy filings, annual reports, disclosure obligations, or shareholder communications, please contact your Dorsey attorney, including the authors of this eUpdate.

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State Affordability Infrastructure Districts (SAIDs) — A Financing Tool for Taiwanese Investment in Arizona Science and Technology Parks

If you have developed a facility inside one of Taiwan's science or technology parks, you are accustomed to the one-stop-shop of government planning the park and delivering the roads, water, power, and other infrastructure before your building is even constructed. In the United States, including Arizona, land development generally does not work that way. In Arizona, the cost of infrastructure such as water, sewer, stormwater, roads, power, and the digital backbone, typically falls on the private landowner and is incurred up front before operations generate revenue to offset that cost. For a company entering the Arizona market, this is often the largest and earliest capital burden of the entire project. Arizona recently created a tool that provides a more cost-effective way for landowners and developer to finance some of that infrastructure. House Bill 2999, signed into law June 2026 and codified at Chapter 40 of Title 48 of the Arizona Revised Statutes, establishes the creation of a State Affordability Infrastructure District (SAID). How a SAID Works Landowners are now able to use a SAID to finance public infrastructure such as water, sewer, stormwater, roads, parking, lighting, communications, rail sidings and signalization, and similar improvements, through tax-exempt bonds. The bonds are repaid over up to 30 years and secured solely by the property within the SAID. No city, county, or state credit is pledged, and no obligation falls on other taxpayers, and therefore no city, county, or state approval other than from the Arizona Finance Authority (AFA). In effect, a SAID lets you spread the cost of horizontal infrastructure over the life of the asset instead of funding it entirely at the outset. And tax-exempt bonds often offer a lower interest rate than taxable or other types of financing. How a SAID is Formed A SAID is formed upon the filing of a petition with the AFA. The petition must include the finance plan, general plan, estimated costs, maximum tax rate, appraisal, bond counsel certificate, consultant list, petitioner experience, legal description, title report, and other materials. While the landowner is required to provide notice to the local governing jurisdiction, local governing jurisdiction does not have the right to approve or deny. The petition is reviewed administratively by the AFA through a standards-based process. For an inbound investor without long-standing local relationships, an objective, criteria-driven process is a meaningful advantage to the overt political process associated with other financing districts in Arizona. Formation requirements. A SAID requires consent from 100% of landowners within the proposed district; public infrastructure costs must exceed $5 million (easily met at any real scale); the district property must all be in the same county and need not be contiguous provided that noncontiguous property is located within five miles of the district's other property; and the board is initially appointed by the forming owners of the SAID district, later transitioning to election as ownership diversifies. Actual bond issuance requires an election of the SAID property owners. Ownership and corporate structure. Consent rights and board seats run with title. If you hold the Arizona land through a U.S. blocker beneath your Taiwan parent, the standard model for Taiwanese/Arizona real estate and operating investment, the U.S. property-holding entity, rather than it’s corporate parent, is the landowner of record for the district. Before formation, our Dorsey team will confirm that you have the proper corporate structure and board mechanics to be compliant.  Board composition has no citizenship or residency requirement. This is a common concern for foreign investors, and the statute answers it cleanly. Under A.R.S. § 48-7004, a director must either hold fee title to real property in the district or be an individual designated or appointed by a fee-title owner. Corporations, partnerships, and other business entities are expressly permitted to be those owners, to vote as owners, and to designate an individual to serve. There is no requirement that a director be a U.S. citizen or resident. So your U.S. property-holding entity, as landowner of record, can appoint whichever of your principals you choose, including a Taiwan-based individual, as the three-member board.  Power infrastructure limitation. The enacted definition of "public infrastructure" in A.R.S. § 48-7001 does not include electrical power generation or transmission. The reference to electrical facilities appears only as components of lighting and traffic-control systems, and the Legislature removed broader energy infrastructure from the definition during the Senate amendments. A SAID will likely not finance the high-load power infrastructure required for semiconductor fabrication, data storage, or heavy manufacturing.  Water infrastructure within a current utility CC&N. Where water, sewer, or wastewater facilities fall within a regulated utility's certificated service territory, the SAID cannot build or own them without the utility's written consent and must convey them to the utility on completion. Entitlements and zoning: The determination of entitlements, zoning, and other land use permitting, as well as construction permitting for a technology or manufacturing facilities remain with the local jurisdiction and run on a separate track. Our Dorsey team will help you coordinate the financing and entitlement timelines together. Our Dorsey team works regularly with Taiwanese and other Asia-Pacific companies entering the Arizona market. If a SAID fits your project, we can structure it for your cross-border ownership.

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Real Estate Attorney Alexis Olsen Joins Dorsey in Phoenix

Attorney Alexis Olsen has joined Dorsey & Whitney LLP as Of Counsel in the Real Estate group in Phoenix, the law firm announced today. Alexis focuses her practice on large-scale residential, mixed-use, and multi-asset development projects as well as multi-state commercial leasing transactions. She guides clients through sophisticated acquisitions, dispositions, leasing, entity structuring, investment strategies, and due diligence matters. She has structured co-investment arrangements that drive capital deployment into housing subdivisions nationwide and has represented both landlords and tenants in commercial leasing transactions involving office, retail, industrial, and specialty-use properties, including cannabis dispensaries. Alexis received her J.D. from Sandra Day O’Connor College of Law and her B.A. from the University of Arizona. Alexis comes to Dorsey from Squire Patton Boggs. “Alexis strengthens Dorsey’s real estate capabilities at a time when Phoenix remains one of the fastest-growing and most dynamic real estate markets in the country,” said Scott Jenkins, Dorsey’s Phoenix office head. “Her addition further enhances our deep bench of 12 real estate attorneys in Phoenix and reflects our continued investment in serving clients throughout Arizona and supporting their real estate transactions and objectives across the country. We are thrilled to welcome Alexis to Dorsey.” “Joining a firm with such a deep bench of experienced attorneys in the Phoenix office, especially in the Real Estate group, presents an exciting opportunity not just for my own professional growth, but for the clients we service,” said Alexis Olsen. “I look forward to building on this strong foundation, growing our national practice, and delivering top-tier service to our clients.”

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Patent Partners Al Araiza and Lena Petrovic Join Dorsey in Palo Alto

Patent partners Al Araiza and Lena Petrovic have joined Dorsey & Whitney LLP in Palo Alto, the international law firm announced today. Al Araiza works with clients to develop and implement patent strategies that align with corporate objectives, supporting growth initiatives, financing efforts, and successful exits, including initial public offerings and acquisitions. He advises on building, managing, and optimizing patent portfolios across a broad range of emerging and frontier technologies, with depth in wireless communications, artificial intelligence, and energy innovation. Before practicing law, Al gained engineering experience in the defense industry, working on energy system modeling and communications circuitry design. He also conducted biomedical research, with findings published in peer-reviewed journals. He has been recognized in the IAM Patent 1000 for his work advising clients on patent strategy and portfolio development. Al received his J.D. from Duke University School of Law, his M.E. in Biomedical Engineering from Tulane University, and his B.S. in Electrical Engineering from UCLA. Lena Petrovic works across the software and hardware industries to develop clear, well-supported patent applications. She guides clients through the prosecution process and advises on global trademark and copyright matters, including licensing and portfolio management. Lena regularly supports clients developing technologies such as artificial intelligence and machine learning, fintech, cryptography, interactive and immersive experiences, and digital media, and works with companies in entertainment, gaming, and sports. Before practicing law, Lena spent a decade at Pixar, where she contributed to major films including The Incredibles, Ratatouille, WALL‑E, and Brave. Lena received her J.D. from Santa Clara University School of Law, her M.S. in Computer Science from Princeton University, and her B.S. from California Institute of Technology. “Al and Lena bring a practical, technical, and business-focused approach informed by extensive experience working with technology companies, startups, and investors,” said Gina Cornelio, Patent Practice Group Co-Leader. “We are thrilled to welcome them to the Patent team and our growing Palo Alto office.” “Dorsey’s Patent practice is dedicated to understanding each client's business deeply, tailoring patent strategies that directly advance their goals,” said Al Araiza. “We are proud to join this outstanding team and look forward to driving success for our clients.”

Insights

The Long-Awaited Public Infrastructure Financing Solution for Development in Arizona

Every developer who has taken raw Arizona ground to a finished project knows the largest upfront cost other than the land price is almost always the cost to install the public infrastructure. Water, sewer, stormwater, streets, dry utilities, and the fiber backbone all have to be in the ground before a single lot closes or a building opens. That capital is deployed early and generates no return for years. For decades the standard workaround has been the Community Facilities District (CFD). That tool has grown materially harder to use, for reasons cited below, and House Bill 2999, signed in June 2026 and now codified as Chapter 40 of Title 48, is Arizona's response. Some Background I have spent a good part of my career on the other side of this problem. In the 1990s and early 2000s I served as general counsel of SunCor Development Company, one of Arizona's most active master-planned community developers, where we used Community Facilities Districts to finance hundreds of millions of dollars of major infrastructure across Arizona in cities such as Goodyear, Phoenix, Tempe, Litchfield Park, and Prescott Valley. For its time the CFD was an effective structure, and a great deal of what is now on the ground in those communities was financed with this tool. Unfortunately, CFDs have over time become considerably harder to use. Successive legislative amendments have layered on tax-rate ceilings, homebuyer disclosure obligations, and added procedural steps. Another drag on the use of CFDs is that formation of them runs through the municipality, where approval can turn as much on local politics as on the merits of a project. Developers now routinely are asked to absorb delay and uncertainty that a project's economics cannot support, which is a large part of why Arizona has fallen behind Colorado, Texas, and Utah in getting infrastructure financed. A better tool was needed, and Chapter 40 is it. How a SAID Improves on a CFD A State Affordability Infrastructure District (SAID) keeps what worked about the CFD: tax-exempt, property-secured, non-recourse infrastructure financing — while shedding much of what made the CFD cumbersome. Its principal advantages over a traditional CFD: Administrative formation. A SAID is formed by the Arizona Finance Authority against fixed statutory criteria, through a yes-or-no compliance review on a sixty-day clock, rather than through the discretionary approval of a city council or a board of supervisors. Insulation from municipal politics. Because formation is a state-level compliance determination, a meritorious project is far less exposed to local political headwinds than it is under the CFD process. Landowner control of the board. A SAID is governed by a board of the landowners — appointed at formation, then elected on an acreage basis. In a typical municipal CFD, the city council sits as the district board; here, the developer controls governance. Advance funding of impact fees. A SAID can use bond proceeds to advance-pay municipal development impact fees, unlike CFDs, removing one of the largest upfront cash burdens in a project. A uniform, statewide process. The criteria are the same regardless of jurisdiction, replacing the municipality-by-municipality variation that has made CFD outcomes hard to predict. Flexible boundaries. A district may include noncontiguous parcels in the same county within five miles of one another, which fits phased and multi-tract development. Capped cost and a fixed timeline. Authority fees to form a district are capped at $15,000, and a complete petition must be acted on within sixty days. The full range of bonds. A SAID may issue general obligation, special assessment, revenue, and refunding bonds, secured solely by district property and creating no obligation for any other taxpayer. What is a SAID A SAID is a special taxing district that the owners of a development form to finance public infrastructure with tax-exempt bonds: general obligation bonds, special assessment bonds, and revenue bonds. The bonds are secured only by the property inside the district and are repaid over the long term, with terms up to 30 years. They do not affect the credit of the city, the county, or the State, and they create no obligation for any taxpayer outside the district. In practical terms, a SAID lets you finance horizontal infrastructure over the life of the asset instead of writing the check at the front end. The maximum ad valorem rate securing general obligation bonds is capped by statute at $5.00 per $100 of net assessed limited property valuation, with a limited step-up to cover a debt-service shortfall. SAIDs Work for Commercial as Well as Residential Development The SAID bill drew most of its press as a housing-affordability measure, and it appears to be a strong one. It is the first Arizona district statute to let bond proceeds advance-fund municipal development impact fees, which pulls one of the largest upfront cash burdens off a homebuilder's pro forma. But the statute's eligible infrastructure categories apply with equal force to commercial, industrial, and mixed-use projects. An industrial or logistics project can finance roads, rail crossings, sidings, and grade separations. A life-sciences or technology campus can finance its water, sewer, roads, and broadband the same way a subdivision can. Read Chapter 40 as a general-purpose infrastructure finance platform, not a subdivision-only device. How Formation Works A SAID is formed administratively by the Arizona Finance Authority. The Authority reviews the petition for compliance with the statute; it is a yes-or-no review against fixed criteria, not a discretionary negotiation with a city council or a board of supervisors, and it runs on a sixty-day clock once a complete petition is filed. Formation requires the written consent of 100% of the landowners in the proposed district and an engineer's certification that public infrastructure costs will exceed $5 million. The district may include noncontiguous parcels so long as they lie in the same county and within five miles of the district's other property, which accommodates phased and multi-tract development; if any part of the district sits inside a municipality, the whole district must stay within that municipality's limits or planning area. The Authority's fees to form a district are capped at $15,000. Issuing bonds requires a district election. Governance Simplified A SAID is run by a three-member board. The initial directors are named in the petition; after that, directors are elected by the landowners on an acreage basis as ownership diversifies. Board service runs with ownership; a director must either hold fee title inside the district or be an individual designated by a fee-title owner; and corporations, partnerships, and other entities may hold that ownership, vote as owners, and designate the individual who serves. A district has no power of eminent domain and no zoning authority, and directors may not be officials or employees of the municipality in which the district sits. What a SAID Does Not Do It finances; it does not entitle. Zoning, platting, rezonings, use permits, and the specialized approvals a manufacturing or life-sciences facility may need all remain with the local jurisdiction and proceed on their own track. The financing and entitlement timelines should be coordinated with formation of the SAID, but they are separate processes. Two substantive limits are worth flagging at the planning stage. First, electric power is largely outside the tool: the statutory definition of public infrastructure does not reach power generation or transmission, and broader energy infrastructure was removed from the bill during the Senate amendments. A power-intensive user should not assume a SAID will carry its electrical load. Second, where water, sewer, or wastewater facilities fall within a regulated utility's certificated service territory, the district cannot build or own them without the utility's written consent and must convey them to the utility upon completion. Our Take For most master-planned residential work, and for a wide range of commercial and industrial development, a SAID will be the most efficient infrastructure-financing structure Arizona has offered. The right time to evaluate it is early in the acquisition and pre-development process, while the capital stack, the development agreement, and the entitlement strategy are still being set. Once the district's boundaries, general plan, and financing parameters are set, it is cumbersome at best to bring those into conformance later. Our Dorsey team has begun advising our developer clients on SAID formation on residential, commercial, and industrial projects statewide. If you would like us to assess whether a SAID fits a project you are working on, please reach out.

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Litigation Privilege Does Not Automatically Protect Communications with Funders: The Commercial Court Clarifies the Limits of Privilege in the Context of Litigation Funding

In Uber London Ltd & Ors v Garry White & Ors; Mishcon de Reya LLP [2026] EWHC 1610 (Comm), the Commercial Court held that documents created to help a funder decide whether to invest in a claim will not ordinarily attract litigation privilege. This means that information a firm gathers while acting for a funder can later fall within the control of the claimants it goes on to represent in the same matter. Background The Claimants (a claim group of over 10,000 individual London black cab drivers and the assignee of two former minicab operators) alleged that the Defendants (three companies in the Uber group) obtained and retained their private hire operator's licence through an unlawful means conspiracy alleged to involve fraud. Because the claims were issued outside the ordinary six-year limitation period, the Claimants relied on section 32 of the Limitation Act 1980, contending they could not, with reasonable diligence, have discovered the fraud before June 2018. A preliminary issue trial was listed to determine the question of whether the Claimants discovered, or could have discovered with reasonable diligence, the alleged fraud and/or deliberate concealment only after June 2018. The Claimants were represented by Mishcon de Reya ("MdR"). However, before MdR’s engagement with the individual drivers had begun, in late 2017 it was engaged by the litigation funder Harbour to investigate the merits and value of the potential claim. During that stage, MdR corresponded extensively with Harbour and with the Licensed Taxi Drivers' Association ("LTDA"), a black cab drivers' trade association. MdR was not formally engaged by the Claimants until October 2018 onwards. Once the proceedings had started, the Defendants sought disclosure of communications exchanged between MdR and Harbour before the engagement of MdR by the Claimants (the "Harbour Communications"). This included correspondence between MdR and Harbour, communications with the LTDA, and documents held on MdR's file opened in Harbour's name in connection with the potential claim. The Claimants resisted disclosure on four grounds: (i) that the documents were not relevant; (ii) on the grounds of litigation privilege; (iii) that the documents were outside their control; and (iv) that disclosure occurring so close to trial would be disproportionate. Judgment (i) Were the Harbour Communications relevant to the preliminary issue? The Court held that the Harbour Communications were likely to contain relevant material, on two bases. First, where the Claimants or the LTDA had communicated directly with MdR, that material could shed light on individual Claimants' actual knowledge of the alleged facts. Secondly, what MdR and Harbour had discovered during their investigation could inform the question of what a Claimant could reasonably have discovered at the time (even though the Defendants accepted that MdR's knowledge could not simply be imputed to the Claimants). (ii) Were the Harbour Communications protected by litigation privilege? As set out in the classic cases of Three Rivers (No. 6) [2005] 1 AC 610 and WH Holding Ltd v E20 Stadium LLP [2018] EWCA Civ 2652, communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged when the following conditions are satisfied: Litigation must be in progress or in reasonable contemplation. The communications must have been made for the sole or dominant purpose of conducting litigation. The litigation must be adversarial, not investigative or inquisitorial. The Court rejected the Claimant’s claim to be able to withhold the Harbour Communications on the basis of litigation privilege. The Court confirmed that litigation privilege protects only communications created for the dominant purpose of conducting litigation. The Court found that Harbour had instructed MdR so that Harbour could decide whether to fund the proceedings. As such, the dominant purpose of the communications was in relation to funding, not the conduct of litigation. This was distinguished from the situation where an individual litigant who takes its own funding decision. In that situation, the decision whether to fund and the decision whether to litigate are one and the same, made by the person who will actually be the claimant, and so it forms a part of that person's conduct of their own litigation. In contrast, a third-party funder's commercial decision whether to fund someone else's claim is not necessarily part of conducting that litigation. The fact that litigation privilege can, in principle, be claimed by a non-party funder (as recognised in the case of Al Sadeq v Dechert [2024] EWCA 28) did not assist Harbour, since there was no evidence it intended to play any role in the litigation itself beyond funding it. Communications between Harbour and MdR did remain capable of attracting another kind of privilege: legal advice privilege, because of the solicitor-client relationship between Harbour and MdR. But communications with third parties such as the LTDA were not automatically protected in the same way. (iii) Were the Harbour Communications within the Claimants' control? The Court also rejected the argument that the Harbour Communications sat outside the Claimants' control because they belonged to Harbour and not the Claimants. The Court’s reasoning was that once the individual Claimant drivers became MdR's clients, MdR also owed them a duty to disclose material information. That included information that MdR had originally acquired while acting for Harbour. As held in the case of Hilton v Barker Booth & Eastwood (a firm) [2005] 1 WLR 567, a solicitor owing duties to two clients cannot simply prefer one over the other, and it was unrealistic to suppose MdR would investigate the same claims for Harbour, then represent the Claimants, while disregarding everything it had already learned. The obvious commercial expectation was that this earlier work would be used to advance the Claimants' case. MdR sought to rely on a confidentiality clause in a 2024 retainer agreement between it and RGL Management Ltd (a claims management company acting on behalf of the Claimants) to argue that it was relieved of any duty to disclose information obtained while acting for other clients. The provision stated that MdR may "have acted for persons in the same or similar sector as yours and by agreeing to the terms of this letter you agree that will have no duty to disclose to you any confidential information that we have obtained, or might in the future obtain, from acting for such persons or which is derived from any other source". The Court rejected this on several grounds. Claimants who had already become MdR's clients had an existing right to information in the Harbour Communications where it was relevant to their claims before the 2024 retainer agreement. If they were to surrender that right, it would have required their informed consent (also required under the SRA Code of Conduct). The Court found no evidence that such informed consent had been given. The terms had simply been made available to the Claimants through a portal, with no indication that Claimants understood they were giving up existing rights to relevant information. The Court found that even if the terms had been contractually binding, that would not have amounted to informed consent. In addition, the wording of the clause was not sufficiently clear to show that the Claimants had agreed to waive access to this information. (iv) Was disclosure reasonable, proportionate, and necessary at this stage? The Claimants argued that it was neither reasonable nor proportionate for disclosure to be given at such a late stage (approximately two weeks before the start of the preliminary issue trial) and that it was not necessary for the just disposal of the proceedings. The Court rejected this, but it drew a distinction between two categories of documents within the Harbour Communications: Documents bearing on the actual knowledge of the individual drivers, including communications with the LTDA, were not privileged, likely straightforward to review, and directly relevant to the preliminary issue. Their disclosure was ordered as reasonable, proportionate, and necessary. Documents reflecting only MdR's or Harbour's own assessment of the merits were of more marginal, indirect relevance and largely likely to fall under legal advice privilege. A review to isolate the smaller pool of non-privileged material in this category would be time-consuming for limited benefit, so this was excluded from the order. Key Points to Note The judgment is an important reminder of several practical points: However closely a funder is involved in evaluating a claim's merits, litigation privilege will only apply to communications where the sole or dominant purpose of the communication is the conduct of litigation, not the funder's own decision on whether to finance it. Unless that communication separately attracts legal advice privilege, it may need to be disclosed. The same considerations apply to other communications. For example, in RBS Rights Litigation [2017] 1 WLR 3539 the argument that an After the Event (ATE) policy was subject to litigation privilege was rejected on a similar basis. Whilst in this case, there was no dispute as to whether litigation was in contemplation, it is important to note that litigation privilege will not automatically apply to the investigative stages of a claim, i.e. before litigation is in contemplation. Even where litigation is reasonably contemplated, the dominant purpose test must still be satisfied. Material created primarily for fact-finding, risk assessment, or other investigative purposes will not attract litigation privilege unless those activities are actually undertaken for the dominant purpose of conducting the litigation. (See The Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 (QB)). When engaging a law firm, clients should ensure that they understand whether the firm has previously obtained information about their claim while acting for another party (for example, a funder or another interested party) and how that information will be handled. Any restrictions on the firm’s ability to share relevant information with the client should be explained clearly at the outset, including what information may be withheld and why. If this decision raises questions about your own funding arrangements, disclosure strategy, or privilege position, please get in touch with our Commercial Litigation team.