Category: Litigation / Trial Practice

HUMANA IN TROUBLE?: Company Seems to be On The Ropes in TCPA Class Action After Court Refuses to Strike Plaintiff’s Expert

So Anya Verkhovskaya is a nice enough lady.
I deposed her not long ago in connection with a case in which we just defeated certification literally yesterday.
But Humana is seemingly not going to be so lucky–although it is too early to tell.
In Elliot v. Humana, 2025 WL 897543 (W.D. Ky March 24, 2025) Humana moved to disqualify Anya arguing her methodology for identifying class members was not sound.
Her methodology boiled down to the following per the court’s ruling:
(1) Taking a list of phone numbers—identified by Humana’s own records—that received prerecorded calls from Humana but had told Humana that it had the wrong number;
(2) Confirming whether each number is assigned to a cellular telephone using third-party data processors to identify the names of all users associated with those phone numbers;
(3) Employing a historical reverse lookup process to retrieve related data associated with those users/phone numbers;
(4) Obtaining telephone carrier data to filter subscriber information (such as names, addresses, email addresses, subscription dates, and other plan-related information);
(5) Cross-referencing reverse lookup data against bulk telephone carrier data, obtained by carrier subpoena, to identify discrepancies; and
(6) Implementing a notice campaign using mail and email address information.
Ok.
Pretty low impact stuff. I probably would have recommended a rebuttal report (probably)– but I certainly would not wasted time with a Daubert motion here. (If you’re hoping to defeat certification by challenging the notice plan I’ve got news for you– you’re in trouble.)
So it looks like Humana may be in trouble.
The Court looked at Anya’s methodology and found no fault, which is sort of unsurprising because its kind of a straightforward process.
Now court’s have (rightly) rejected Anya’s reports in other cases where she makes a bunch of typos and offers opinions like “I just relied on somebody else to perform a scrub and assume their records were accurate and they did it right.”
Yeah, that’s not going to hold up.
But a process for identifying class members that is essentially just “find cell phone numbers in a file, send subpoenas, wait for results, send emails” is… well, child’s play.
Again, however, that SHOULDN’T be the focus of Humana’s efforts here. But… we’ll just have to wait and see how the bigger battle over certification turns out.

Court Rejects DTSA Claim Over Inadequate Efforts to Protect Alleged Trade Secrets

On March 13, 2025, the U.S. District Court for the Eastern District of New York dismissed a trade secret misappropriation claim under the Defend Trade Secrets Act (“DTSA”), finding that the employer failed to plead it had taken reasonable measures to maintain the secrecy of its alleged trade secrets.
In Negative, Inc. v. McNamara, 2025 U.S.P.Q.2d 448, the employer alleged that McNamara, a freelance contractor, misappropriated its trade secrets, which included customer contact and sales information, costs and pricing information for its apparel, marketing and pricing strategies, and internal business plans.  Negative alleged that it had taken reasonable secrecy measures—such as requiring “an intentional sign-in with multiple authentication factors,” limiting access to the files McNamara accessed to a “need-to-know” basis, preventing certain of the files from being downloaded or printed, terminating the access of former employees or contractors, and when Negative became aware McNamara had downloaded the information, demanding its return. 
However, the court disagreed that Negative’s measures were sufficient.  The court found that Negative had not alleged that it made any effort to communicate to McNamara that the information was confidential, nor required her to sign a confidentiality or non-disclosure agreement, or given her any formal instruction regarding the confidentiality of the materials she accessed.  The court dismissed Negative’s DTSA claim, holding that even drawing all reasonable inferences in Negative’s favor, it had failed to adequately plead it took reasonable measures to keep its information secret. 
This case underscores the importance of proactive and documented steps to protect confidential information, such as by using some combination of contractual obligations, explicit policies, and demonstrable efforts to restrict and monitor access. 

2024 Trends in First Circuit Class Actions

We are pleased to present our final 2024 update to the New England and First Circuit Class Action Tracker, which focuses on class action filings in state and federal courts within the boundaries of the First Circuit in New England.
In 2024, there were 444 total state and federal filings, representing a sustained trend of increased class action filings, and exceeding pre-pandemic levels for the first time. If this trend continues into 2025, historical high points for class action filings in New England may soon become the norm.
Cybersecurity and Data Privacy Litigation Continues to Grow
Federal class action cases in New England reflect a continued onslaught of cybersecurity and data privacy litigation arising from data breaches and the alleged unauthorized disclosure and/or use of consumer information, including TCPA claims.
The most asserted theories underlying data security and privacy class action claims were the exposure of personally identifiable information in a data breach and the receipt of unsolicited telephone calls and text messages.
The vast majority of these cases filed in federal courts have targeted professional services, health care, and retail/manufacturing industries, but there were also a significant number of filings targeting defendants in the technology and biotech/pharma services industries.
These record levels of federal cybersecurity and privacy litigation filings in New England are remarkable, because our totals do not include cases that were transferred and consolidated into the lead case In re: MOVEit Customer Data Security Breach Litigation (1:23-md-03083) pursuant to the transfer order from the Judicial Panel on Multidistrict Litigation dated October 4, 2023 transferring all listed actions to the District of Massachusetts and assigning them to Judge Allison D. Burroughs for consolidated pretrial proceedings.
In 2024 alone, 93 new cases were filed in connection with that multidistrict litigation and are not counted among the 213 federal district court filings in the District of Massachusetts in 2024.
Also notable, but not captured in our 2024 filing totals, is the removal of many previously filed wiretap class actions from Massachusetts state superior court to the District of Massachusetts in late 2024, following the Massachusetts Supreme Judicial Court’s ruling in Vita v. New England Baptist Hospital et al, SJC-13542.
If state court removals and multidistrict litigation filings had been included in our tabulation of cybersecurity and data privacy class actions in 2024, already notable high filing levels would have skyrocketed even more dramatically.
Most Federal Cases Filed in Massachusetts District Courts
The overwhelming majority of federal class action cases in New England filed in 2024—nearly 80%—were filed in the District of Massachusetts, followed by the District of Rhode Island, the District of Maine, and the lowest levels of filings in the District of New Hampshire. This trend is consistent with prior years.
Securities and Antitrust Filings Up Year Over Year
Securities class action filings have increased by 50%, and antitrust class action complaints have nearly doubled over prior years, marking two very active areas of litigation. Securities filings increased most prominently in the District of Massachusetts, while antitrust class action cases rose primarily in the District of Rhode Island.
Industries Targeted are Consistent with Prior Years
As in prior years, the financial/professional services, manufacturing/retail, health care, technology, and pharmaceutical/biotechnology industries continued to be the most frequent targets of class action complaints in the First Circuit throughout 2024.
2025 Likely to Continue as Record Year for Class Action Filings
With 2024 filings at their highest level in years, we expect the class action boom in the First Circuit to continue, along with the trend of class actions against health care and technology industry defendants. As these trends continue, we see the evolution to include the addition of financial, legal, and educational institution defendants. We will continue to monitor these developments as 2025 progresses.

Corporate Debtors and Transactions at an Undervalue–Lessons From the UK Supreme Court: El-Husseini and Another v Invest Bank Psc

The UK Supreme Court’s recent decision in El-Husseini and another v Invest Bank PSC [2025] UKSC 4 has clarified the circumstances in which section 423 of the Insolvency Act 1986 (the Act) provides protection against attempts by debtors to “defeat their creditors and make themselves judgment-proof”. This is a critical decision for insolvency practitioners, any corporate or fund which is involved in distressed deals and beyond to acquirers who were not aware they were dealing in distressed assets. It is potentially good news for the former, improving or fine-tuning weapons deployed for the benefit of creditors. It is potentially awkward news for the latter, who may have to look rather more broadly at insolvency issues when acquiring assets not only from distressed vendors but potentially also from vendors with distressed owners.
The case concerned an individual debtor, Mr Ahmad El-Husseini, but the decision has ramifications for corporate debtors. It confirms a broad interpretation of “transactions at an undervalue” applicable to section 423 (transactions defrauding creditors) of the Act and gives clear guidance that this interpretation applies to section 238 (transactions at an undervalue) of the Act, such that the assets which are the subject of the transaction do not need to be legally or beneficially owned by the debtor to be subject to these provisions. Instead, they can catch transactions in which a debtor agrees to procure a company which they own to transfer an asset at an undervalue. 
Section 423 and Section 238 of the ACT
Section 423 of the Act (which applies to both individuals and corporates, whether or not they are or later become insolvent) is engaged where a party enters into a transaction at an undervalue for the purpose of putting assets beyond the reach of creditors or otherwise prejudicing their interests. 
Section 238 of the Act (which applies to companies in administration or liquidation) is engaged where a company enters a transaction at an undervalue within two years of the onset of insolvency and the company was insolvent at the time of the transaction or became insolvent as a result of the transaction. 
If a claim pursuant to section 423 or 238 of the Act is successful, the court has the power to restore the position as if the transaction had not been entered into. 
The Facts in El-Husseini and Another V Invest Bank PSC
Seeking to enforce a United Arab Emirates (UAE) judgement in the sum of approximately £20 million, Invest Bank PSC (the Bank) identified valuable assets linked to Mr El-Husseini. In its judgment, the Supreme Court proceeded on the basis that Mr El-Husseini was the beneficial owner of a Jersey company which owned a valuable central London property. Further, that Mr El-Husseini had arranged with one of his sons that he would cause the Jersey company to transfer the property to the son for no consideration. As a result, the value of Mr El-Husseini’s shares in the Jersey company was reduced and the Bank’s ability to enforce the UAE judgement was prejudiced. The Bank brought claims under section 423 of the Act.
Defining A “Transaction” Falling Within Section 423 and the Ramifications For Section 238
The fundamental issue for the Supreme Court was whether, as asserted by the Bank, section 423 of the Act could apply to a transaction where the relevant assets were not legally or beneficially owned by the debtor but instead by a company owned or controlled by the debtor.
The Supreme Court ruled in the Bank’s favour, including on grounds that:

The plain language of section 423 strongly supports the conclusion that the provision contains no requirement that a transaction must involve a disposal of property belonging to the debtor personally.
A restrictive interpretation of “transaction” such that it was limited to transactions directly involving property owned by the debtor would undermine the purpose of section 423.
It was appropriate to rely on the purpose of section 423 to construe a provision which was common to section 423, 238 and 339 (which provides a remedy in the case of transactions at an undervalue where the debtor has subsequently been declared bankrupt) of the Act. These sections share a common purpose: to set aside or provide other redress when transactions at an undervalue have prejudiced creditors. The Supreme Court considered it impossible to think of circumstances in which a “transaction” was held to be within section 423 when it would not fall within section 238 and 339 of the Act. In any event, there was no reason as a matter of policy or purpose why a transfer by a company owned by an insolvent company or individual should not fall within those sections. 

Thus, not only does the judgment confirm the broad interpretation of “transactions at an undervalue” applicable to section 423, but it also gives clear guidance that this interpretation applies equally to section 238.
Key Takeaways

Debtors cannot hide behind corporate structures – The ruling confirms that a corporate structure does not shield debtors who procure the transfer at an undervalue of assets belonging to companies owned by them to evade their obligations to creditors.
Stronger protections for creditors – Creditors will welcome the decision, which makes it harder for debtors to circumvent enforcement.
Greater clarity – The judgment provides clear guidance that the broad interpretation of “transactions at an undervalue” applicable to claims under section 423 of the Act can be relied upon for the purposes of claims under section 238. 

Clear Terms of Franchise Agreement Are Enforced Against Franchisee

A recent federal court decision in T&T Management, Inc. v. Choice Hotels, Inc. underscores key contractual and operational considerations for franchisors. T&T filed suit in U.S. District Court for the District of Minnesota against Choice Hotels alleging that Choice Hotels breached a geographic exclusivity agreement and misappropriated trade secrets. However, on February 27, 2025, the court granted a motion to dismiss, emphasizing the importance of clear contractual terms.
Background
T&T Management entered a franchise agreement with Country Inn & Suites by Carlson in 2011, which granted them exclusivity within a defined area for that brand. Over the years, Country Inn & Suites changed ownership twice—first acquired by Radisson and later by Choice Hotels. Choice subsequently issued a franchise license to Sunshine Fund Port Orange, LLC to operate a WoodSpring Suites hotel near T&T’s location. T&T argued that this action violated its exclusive territorial rights and also alleged that Choice misused proprietary guest data.
Holding
The court dismissed all claims against Choice Hotels and its co-defendants, holding:

No breach of contract: The exclusivity clause only applied to Country Inn & Suites properties, not other brands under Choice’s growing portfolio. The agreement explicitly allowed Choice to license other hotel brands within the protected area.
No tortious interference: Since there was no breach of contract, Sunshine’s entry into the market was lawful and did not constitute improper interference.
No trade secret misappropriation: The agreement designated the franchisor as a co-owner of guest data, permitting Choice to use and share it without violating the Defend Trade Secrets Act.

Key Takeaways

Precise Contract Drafting is Crucial: Franchisors should ensure that exclusivity clauses explicitly define their scope. This case demonstrates that a narrowly tailored exclusivity provision can limit disputes when a franchisor expands its brand portfolio.
Ownership of Guest Data Should Be Clearly Defined: Franchise agreements should specify data ownership and usage rights. Here, the court upheld the franchisor’s right to use and share guest data, reinforcing the need for clear contractual language.
Successor Franchisors Must Understand Their Obligations: When acquiring a franchise system, due diligence is essential to ensure compliance with existing agreements. Franchisors should verify whether existing exclusivity or operational restrictions carry over post-acquisition.

This case serves as a reminder that well-drafted franchise agreements can protect franchisors while limiting liability in the face of legal challenges.

Plaintiffs Try Another Bite at the Apple… and Google Too!

In a recent post about legal issues with the social casino sweepstakes model, we indicated that a recent RICO lawsuit against a social casino sweepstakes model, which also named Apple and Google, was dismissed voluntarily by the plaintiff. Plaintiffs are already taking another bite at the Apple.
A new lawsuit was filed against Apple and Google by lead Plaintiff Bargo and two co-plaintiffs. The new complaint alleges that the lawsuit is about “patently illegal gambling software being distributed to the cell phones, desktop computers and other personal electronic devices of individuals throughout New Jersey, New York and beyond, by an unlawful enterprise that includes two of the most successful companies in the world.” This complaint does not name any of the social casino games operators.
Rather, it alleges that the named defendants “willingly assist, promote and profit from” allegedly illegal gambling by: (1) offering users access to the apps through their app stores; (2) taking a substantial percentage of consumer purchases of Game Coins, Sweeps Coins and other transactions within the apps; (3) processing allegedly illicit transactions between consumers and the Sweepstakes Casinos using their proprietary payment systems; and (4) by using targeted advertising to allegedly “shepherd the most vulnerable customers to the Sweepstakes Casinos’ websites and apps” facilitating an allegedly unlawful gambling enterprise.
The legal claims are made under the NJ gambling loss recovery statute, the New Jersey Consumer Fraud Act, Unjust Enrichment, New York’s gaming loss recovery statute, NY consumer protection laws, and the RICO laws.

MASSIVE NEW RISK FOR MARKETERS: Dobronski Nukes SelectQuote and the Whole TCPAWorld Has to Deal With the Fallout

So there’s this guy named Mark Dobronski.
Frequent commenter on TCPAWorld.
Aggressive repeat litigator who is not, at all, afraid to go it alone in TCPA cases and bring suits on his own behalf. He also raises novel and interesting issues.
Here’s one.
47 CFR 64.1601 provides that anyone engaging in telemarketing must transmit either a CPN or ANI, and the name of the telemarketer. 
Dobronski alleged SelectQuote didn’t comply with this rule. So he sued.
But SelectQuote moved for summary judgment and won originally with the court determining the CFR provision was promulgated under section 227(e)–the Truth in Caller ID Act–that does not afford a private right of action.
Great, fine. Except one little problem– 64.1601 was promulgated before 227(e) was added to the TCPA.
Oops.
So this creates a mystery: Which section of the TCPA was the CFR section promulgated under?
SelectQuote’s attorneys argued it was pursuant to Section 227(d)–which proscribes technical requirements for prerecorded calls– but Dobronski countered the provisions of 64.1601 apply to all marketing calls, not just prerecorded calls.
As a result the Court defaulted to 227(c) as the statutory section that gave the FCC authority to promulgate the rule. This is so although the court conceded section 227(c) was not a perfect fit either.
So Dobronski just got a court to hold that the provisions of 64.1601 ARE enforceable pursuant to a private right of action.
Eesh.
That means telemarketers–looking at you lead generators–need to make sure either:

The name of the telemarketer is displayed on your caller ID; or 
The name of the seller on behalf of which the telemarketing call is placed and the seller’s customer service telephone number.

Hope ya’ll are following along. Because this is a HUGE deal.
Btw– the CORRECT answer here is that the FCC EXCEEDED ITS AUTHORITY in creating 64.1601 as Congress had not yet given it the ability to regulate caller ID until 227(e) was passed. Ta da.
But SelectQuote’s lawyers (apparently) did not raise that argument. So here we are.
And, what a surprise– the lawyers who just got beat by a guy WITHOUT AN ATTORNEY are from, you guessed it!, #BIGLAW!!!
Hire big law. Expect big losses folks.
Luckily you can get out of the biglaw trap for less money but only for another 6 days!
Chat soon.
Case is: Dobronski v. SelectQuote 2025 WL 900439 (E.D. Mich March 25, 2025)

(UK) The Issue With Hybrid Insolvency Claims Rumbles On

Should a claim be struck out where the applicant has failed to comply with the procedural requirements relating to “hybrid” claims? In the recent case of Park Regis Birmingham LLP [2025] EWHC 139 (ch), the High Court held that it would be disproportionate to strike out the claim on that basis.
Hybrid Claims
Hybrid claims are those that include claims under the insolvency legislation (e.g. “transaction avoidance” claims), as well as company claims (e.g. unlawful dividends or sums owing under a director’s loan account). Previously, it was common practice for such claims to be issued as a single insolvency act application, rather than as a Part 7 claim.
Since the Manolete Partners plc v Hayward and Barrett Holdings case in 2021, applicants have been required to issue these claims separately, with the insolvency claims being issued as an insolvency application, and the company claims being issued as a separate Part 7 claim. The applicant can then issue an application to request that the separate proceedings are managed together e.g. at a single trial. This has meant that the costs of issuing such claims have increased, as the issue fee for a Part 7 claim can be up to £10,000, whereas the issue fee for an insolvency application is £308.
Facts
In the Park Regis case, the applicants had incorrectly issued a hybrid claim as a single insolvency application, without issuing the separate Part 7 claim for the company claims. However, when issuing the application, the applicant’s lawyers had informed the Court that the issue fee for the application would be £10,000, as the claim was a hybrid claim, and therefore the £10,000 fee was paid.
The respondents applied to strike the claim out, on the basis that the applicant had failed to comply with the Hayward and Barrett Holdings case and argued that the applicant’s approach constituted an abuse of process.  
The judge held that the applicant had failed to comply with the procedural requirements regarding hybrid claims. However, in exercising her discretion about whether to strike out the claim, the judge held that striking out the claim would be too severe a penalty for that failure. The judge therefore exercised her discretion (under CPR 3.10)  to waive the procedural defect and allowed the claim to proceed as if it had been properly issued.
Commentary
While the judge in this case declined to strike out the claim, the judge was clear that the applicant’s attempt to issue the claim by way of a single insolvency application, but paying the higher Part 7 issue fee, was procedurally incorrect. Had this approach been endorsed it would have made issuing such applications more straightforward for practitioners, but the judge noted the absolute requirement for separate proceedings. 
We understand that this decision has been appealed – so watch this space for further comment. In the interim practitioners should continue to apply the Hayward and Barrett Holdings approach and issue two sets of proceedings to avoid the risk of a claim being struck out.  Although the procedural defect was waived in this case, the power to do that is a discretionary one!
The Insolvency Service in the First Review of the Insolvency Rules has reported that they are considering whether an amendment to the Rules is required to address the Hayward and Barrett Holdings case which would hopefully see a return to previous practice – one set of proceedings with one court fee.  But to date there has been no indication from the Insolvency Service when (if) they will progress that and unless further clarity is provided on appeal it seems the sensible approach for practitioners is to follow Hayward when pursuing a claim.

Texas Supreme Court Confirms Limits of Fifteenth Court of Appeals’ Jurisdiction

The Texas Supreme Court issued a per curiam opinion that resolved a split among Texas courts of appeals regarding the jurisdiction of the Fifteenth Court of Appeals. Addressing motions to transfer appeals out of the Fifteenth Court, in Kelley v. Homminga, No. 25-9013 and Devon Energy Production Co. v. Oliver, No. 25-9014, the Court held that the Fifteenth Court does not have jurisdiction over all civil appeals in Texas.
Instead, the Court concluded the Fifteenth Court’s jurisdiction is limited to appeals that are (1) within its exclusive jurisdiction (i.e., only those appeals involving the state or appealed from the Business Court), or (2) transferred to it by the Supreme Court for docket equalization as the Texas Government Code requires.
Scope of Geographic Reach Versus Subject-Matter Jurisdiction
The Texas Supreme Court explained that through a combination of state-wide geographic reach limited by legislated subject-matter jurisdiction, the Fifteenth Court has authority to decide appeals from any Business Court across the state. Senate Bill 1045, which created the Fifteenth Court, also granted it jurisdiction to decide “certain civil cases” that may arise anywhere in the state. The “certain civil cases” within the Court’s subject-matter jurisdiction is limited to only three substantive categories of civil appeals: (1) cases brought by or against the state, with enumerated exceptions; (2) cases involving challenges to the constitutionality or validity of state statutes or rules where the attorney general is a party; and (3) “any other matter as provided by law.” The third category includes two types of appeals: those from the newly created Business Court and those transferred to it by the Texas Supreme Court in order to equalize dockets among the courts of appeals.
Procedural Posture
In both Kelley (Galveston County) and Devon Energy (DeWitt County), defendants noticed their appeals to the Fifteenth Court, asserting that the court’s statewide jurisdiction authorized it to hear their cases. The plaintiffs in each case moved to transfer the appeals to the regional courts of appeals that traditionally hear appeals from the counties where the trial courts are located—specifically, the First or Fourteenth Courts in Kelley and the Thirteenth Court in Devon Energy.
The Fifteenth Court denied both transfer motions over dissents. Both majority opinions (2-1) held that because Texas statutes grant the Fifteenth Court general appellate jurisdiction over civil cases statewide, the Fifteenth Court could decide the appeals. While the First Court of Appeals agreed with the Fifteenth Court’s majorities, the Thirteenth and Fourteenth Courts of Appeals disagreed. Because neither the Kelley nor Devon Energy appeal fell into the three substantive categories of civil appeals over which the Fifteenth Court had subject-matter jurisdiction, the Texas Supreme Court granted the motions and ordered the appeals transferred back to the courts of appeals in the districts in which the trial courts resided.
New Jurisprudential Guidance
The Texas Supreme Court applied new terminology (gleaned from collaborative writings of Justice Antonin Scalia and Bryan A. Garner) to the jurisprudence guiding statutory interpretation. The “fair meaning” standard of statutory interpretation requires courts to discern a statute’s objectives from its plain text while also considering the broader statutory context. The Court’s view is that this approach differs from strict textualism, as it seeks to harmonize all provisions of a statute into a cohesive whole rather than focusing on the hyper literal meaning of individual words. Also animating its decision, the Court explained that reversal was necessary to avoid “gamesmanship” in seeking an appellate venue and thwarting the legislature’s intent that the Fifteenth Court give special attention to categories of cases in which it has exclusive jurisdiction and not be overburdened with cases outside of its exclusive jurisdiction. The Texas Supreme Court’s decisions in Devon Energy and Kelley provide welcome clarity on the jurisdiction of the Fifteenth Court of Appeals.

D.C. Circuit Denies Copyright to AI Artwork – What Humans Have and Artificial Intelligence Does Not

Can a non-human machine be an author under the Copyright Act of 1976? In a March 18, 2025 precedential opinion, a D.C. Circuit panel affirmed prior determinations from the D.C. District Court and the Copyright Office that an original artwork created solely by artificial intelligence (AI) is not eligible for copyright registration, because human authorship is required for copyright protection.
Dr. Stephen Thaler created a generative AI named DABUS (or Device for the Autonomous Bootstrapping of Unified Sentience), also referred to as the “Creativity Machine,” which made a picture that Thaler titled “A Recent Entrance to Paradise.” In the copyright registration application to the U.S. Copyright Office, Thaler listed the Creativity Machine as the artwork’s sole author and himself as just the work’s owner.
Writing for the panel, D.C. Circuit Judge Patricia A. Millett opined that “the Copyright Act requires all work to be authored in the first instance by a human being,” including those who make work for hire. The court noted the Copyright Act’s language compels human authorship as it limits the duration of a copyright to the author’s lifespan or to a period that approximates how long a human might live. “All of these statutory provisions collectively identify an ‘author’ as a human being. Machines do not have property, traditional human lifespans, family members, domiciles, nationalities, mentes reae, or signatures,” the court concluded.
In rejecting Thaler’s copyright claim of entirely autonomous AI authorship, the court did not consider whether Thaler is entitled to authorship on the basis that he made and used the Creativity Machine, because Thaler waived such argument in the underlying proceedings. The court also declined to rule on whether or when an AI creation could give rise to copyright protection. However, citing the guidance from the Copyright Office, the court noted that whether a work made with AI is registrable depends on the circumstances, particularly how the AI tool operates and how much it was used to create the final work.  In general, a string of recent rulings from the Copyright Office concerning “hybrid” AI-human works have allowed copyright registration as to the human-created portions of such works.
The D.C. Circuit’s statutory text-based analysis and holding stands in parallel with the counterpart U.S. patent doctrine that human inventorship is required for patent protection, provided in Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022; Cert. denied) and reflected in the USPTO’s Inventorship Guidance for AI-Assisted Inventions issued February 12, 2024. 
Underlying the judicial rulings to require the human authorship and inventorship for copyright and patent protection is the concept that only humans can “create” art or can conceive the invention – that there is something special and important about human creativity, which is what the intellectual property law aims to protect. This underpinning of human creativity in the authorship and inventorship requirements was addressed in detail in a White Paper published last summer by Mammen and a multidisciplinary group of scholars at the University of Oxford.  The White Paper explains that creativity includes three core elements: (a) an external component (expressed ideas or made artifacts that reflect novelty, value, and surprisingness), (b) a mental component (a person’s thought process – interplay of divergent (daydreaming) thinking, convergent (task-focused), and recognition of salience (relevance)), and (c) a social context (for example, what society considers new, valuable, and surprising, and thus “creative”).   IP doctrines require all three core elements. Generative AI does not presently exhibit the equivalent of the mental component that is key to human creativity. 
In fact, as the White Paper discusses, there is some evidence that Generative AI can negatively impact even human creativity. First, using AI to produce creative products involves working in a way that emphasizes speed and instant answers, as well as becoming the passive consumer of such answers, rather than self-reflection or toggling between convergent and divergent thinking, which is key to creativity. Second, humans interacting with AIs tend to lose confidence in their own creative skills, and start to restrict the range of their own creative repertoire in favor of creating “mash-ups” of what AI provides. 
In analyzing the causal impact of generative AI on the production of short stories where some writers obtained story ideas from a large language model (LLM), Doshi and colleagues reported that access to generative AI caused stories to be more creative, better written, and more enjoyable in less creative writers, while such AI help had no effect for highly creative writers. However, the stories produced after using an LLM for just a few minutes indicated significantly reduced diversity of ideas incorporated into the stories, leading to a greater homogeneity between the stories as compared to stories written by humans alone. Thus, generative AI augmented less creative individuals’ creativity and quality of work, but decreased collective novelty and diversity among writers, suggesting degradation of collective human creativity by use of generative AI.
To be sure, the questions raised by Dr. Thaler and DABUS are testing the boundaries and rationales for existing IP doctrines.  Dr. Thaler argued that judicial opinions from the Gilded Age could not settle the question of whether computer generated works are copyrightable today.  But as reflected in the White Paper and affirmed by the courts, it is not enough merely to suggest that the outputs of Generative AI warrant IP protection because they are “just as good as” human-created outputs that are entitled to protection. Moreover, in most instances of AI-created work or invention, a human factor appears to be present to some extent, either in creating the AI, desiring certain goals and outputs, commanding the AI to generate a goal-oriented output, evaluating and selecting the AI-generated output, modifying the AI-generated output, or owning the AI for the purpose of using the AI-generated output. As the capabilities of AI continue to evolve, the border between human creativity and AI capability may blur further, posing an evolving set of challenges at the frontier of IP law. 

Commissions Are ‘Wages’ Under the New Jersey Wage Payment Law, New Jersey Supreme Court Rules

On March 17, 2025, the Supreme Court of New Jersey held that “commissions” must be considered “wages” under the New Jersey Wage Payment Law (WPL) and cannot be excluded as “supplementary incentives” because they are tied to the “labor or services” of employees.

Quick Hits

New Jersey Supreme Court Ruling on Commissions as Wages: On March 17, 2025, the Supreme Court of New Jersey ruled that commissions must be considered “wages” under the New Jersey Wage Payment Law (WPL) and cannot be excluded as “supplementary incentives” since they are tied to the labor or services of employees.
Case Background and Court’s Decision: In Musker v. Suuchi, Inc., the court determined that commissions earned by a sales representative for selling PPE during the COVID-19 pandemic were “wages” under the WPL, and rejected the argument that these commissions were “supplementary incentives” because they were tied to her labor or services.
Implications for Employers: The ruling clarifies that commissions are always considered “wages” under the WPL, regardless of whether they are for new or temporary products.

Background
In Musker v. Suuchi, Inc. the plaintiff, Rosalyn Musker, a sales representative, earned a salary plus commissions pursuant to an individualized sales commission plan (SCP) to sell software subscriptions. In March 2020, Suuchi, Inc., began to also sell personal protective equipment (PPE) because of the rise of COVID-19. Musker ultimately completed PPE sales that generated approximately $35 million in gross revenue for Suuchi. The parties disagreed regarding the amount of commissions owed to Musker pursuant to the SCP for her PPE sales and further disagreed as to whether such payment constituted “wages” or “supplementary incentives” under the WPL.
Musker then filed suit against Suuchi claiming it violated the WPL by withholding from her payment of commissions for her PPE sales. Suuchi, on the other hand, argued that Musker’s WPL claim should be dismissed because the commissions for the PPE sales in this instance would be considered “supplementary incentives” and not “wages” under the WPL. Specifically, Suuchi argued that because PPE was a new product and not its primary business, Musker’s commissions for her PPE sales should be considered “supplementary incentives” under the WPL.
Both the Superior Court of New Jersey and the New Jersey Appellate Division denied Musker’s WPL claim, concluding that because her sale of PPE went “above and beyond her sales performance, and the [PPE] commissions are calculated independently of her regular wage,” such commissions did not constitute “wages” under the WPL.
The Supreme Court of New Jersey disagreed and held that Musker’s commissions for the sale of PPE could not be excluded from the definition of “wages” as a “supplementary incentive.”
Commissions Are Wages and Cannot be Excluded as Supplementary Incentives
The supreme court pointed out that the WPL defines the term “wages” as “the direct monetary compensation for labor or services rendered by an employee, where the amount is determined on a time, task, piece, or commission basis excluding any form of supplementary incentives and bonuses which are calculated independently of regular wages and paid in addition thereto.” (Emphases in the original.) Unfortunately, however, the WPL does not define what constitutes a “supplementary incentive.”
In reviewing the WPL’s definition of “wages,” the Supreme Court of New Jersey concluded that a “supplementary incentive” is compensation that “motivates employees to do something above and beyond their ‘labor or services.’” The court opined that the “primary question addressing whether compensation is a ‘supplementary incentive’ is not whether the compensation only has the capacity to [incentivize work or provide services], but rather whether the compensation incentives employees to do something beyond their ‘labor or services.’”
In so concluding, the court clarified that a “commission” can never be a “supplementary incentive” because “supplementary incentives,” unlike “commissions,” are not payment for employees’ labor or services. To illustrate this point, the court provided several examples of “supplementary incentives” which it determined are not tied to employee’s “labor or services” and therefore would not constitute “wages” under the WPL, including: working out of a particular office location, meeting a certain attendance benchmark, or referring prospective employees to open positions.
Accordingly, the court held that Musker’s commissions from her PPE sales were not “supplementary incentives” because those sales necessarily resulted from her “labor or services.” Accordingly, the court held that those commissions would be considered “wages” under the WPL. Further, the court rejected Suuchi’s argument that because PPE was a new product for the company and it only temporarily sold such product, the sale of PPE therefore fell outside the regular “labor or services” an employee provides. Rather, as a result of the COVID-19 pandemic, selling PPE became part of Musker’s job and thus, commissions for selling PPE became owed to her as “wages” pursuant to the WPL.
Key Takeaways
The Supreme Court of New Jersey has clarified that commissions can never be “supplementary incentives” and excluded from the definition of “wages” under the WPL. Commissions are “wages” pursuant to the WPL, regardless of whether they are based on sales of new products or products temporarily marketed by their employers. Commissions are tied to employees’ “labor or services” and, as a result, are not “supplementary incentives.” Furthermore, the penalties under the WPL include liquidated damages of up to 200 percent of the wages recovered, as well as attorneys’ fees for successful claimants. Employers may want to keep in mind that all commissions are owed to employees to ensure compliance with the WPL to avoid exposure to significant financial penalties.