.

Sarah delivers practical advice to help businesses build their intellectual property assets and achieve their business goals.

Sarah has over twenty years’ experience helping clients protect, enforce and exploit their intellectual property assets and overseeing clients’ general business needs, with particular depth in the creative industries, tech, financial, and consumer product sectors.

Sarah has extensive experience in a wide scope of corporate and commercial agreements and transactions involving intellectual property, and assisting with the day-to-day needs of clients. She clears, registers, and enforces brand names in the U.S. and internationally. She handles sales and distribution issues, as well as complex licensing matters. She represents clients in Trademark Trial and Appeal Board proceedings and in disputes involving intellectual property, including mobile app and domain name conflicts. She also counsels clients on marketing, advertising, contest, and online reputation management issues. Sarah also services clients operating in the creative and entertainment industries, including in areas involving rights exploitation, including U.S.-China film, TV, and music related transactions, as well as in the newly-developing cannabis branding area.

Also admitted to practice in Ontario, Canada, and currently qualified as a Foreign Legal Consultant in Ontario, Sarah has extensive experience in Canadian cross-border issues and helping Canadian businesses enter the U.S. market.

Sarah is the head of Dorsey’s New York Trademark Group and the firm’s Creative Industries Industry Group. Sarah is a contributor to Dorsey’s critically-acclaimed IP Blog, TheTMCA.com, which focuses on legal developments in the world of TradeMarks, Copyrights, and Advertising. TheTMCA.com and the Firm’s Trademark Practice Group have been recognized in JD Supra’s 2022 Readers’ Choice Awards.

Education

  • Osgoode Hall Law School, Toronto, Canada (J.D.)
    • Award for Excellence in Copyright Law
  • Queen’s University, Toronto, Canada (B.A., French Studies)

Bar Admissions

  • New York

Accolades

  • World Trademark Review 1000 – The World’s Leading Trademark Professionals, Leading Practitioner, 2016-2026
  • Thomson Reuters, "Stand-Out Lawyer," 2024
  • Qualified Foreign Legal Consultant in Ontario

Court Admissions

  • U.S. District Court for the Southern District of New York

Professional Affiliations

  • Chair, Entertainment, Sports and Arts Law (EASL) Section of the New York State Bar Association, 2024-2026
  • Board Member, Council for Canadian American Relations
  • Chair, Advisory Board, Canadian American Bar Association
  • Member, International Trade-mark Issues Committee, Intellectual Property Institute of Canada (IPIC), 2011-present
  • Member, International Trademark Association (INTA), Trademark Office Practices Committee, 2007-2010
  • Member, Intellectual Property Institute of Canada (IPIC), Membership Committee, 2007-2009
  • Member, Trademarks and Unfair Competition Committee, Bar Association of the City of New York, 2002-2005
  • Law Society of Upper Canada

Languages

  • French

Select Presentations

  • "Hot Topics in Trademark, Copyright and Advertising Law in 2023," Presenter, NJIPLA 37th Annual Pharmaceutical/Chemical Patent Practice Update, November 2023
  • "Investing in Brand Value," Panelist, June 21, 2017 
  • “Annual Review: 2013 Litigation and Trends,” Panelist, Ontario Bar Institute 2014, Entertainment, Communications and Media Law Program, February 2014
  • "Social Media Trends, Risks and Rewards," Dorsey & Whitney Symposium for Corporate Leaders, New York, April 17, 2012
  • "Marketing in Cyberspace: Legal Protection in an Age of Social Media," Ontario-New York Legal Summit, Toronto, Canada, March 28, 2012
  • "Current and Trending Topics in Brand, Famous Personality and Character Licensing: Development to Bankruptcy, Entertainment, Arts and Sports Law (EASL)," Section Annual Meeting, New York, NY, January 23, 2012
  • "Table Topic Leader, Infringement by Product Substitution," INTA 2011 Annual Meeting, San Francisco, May 2011
  • "Building a Successful Brand Identity: Getting it Right from Design to Legal," Dorsey & Whitney Luncheon Symposium, co-presentation with Jonathan Ford, Designer and Co-Founder, Pearlfisher, June 21, 2010
  • "Fashion Design – Copyright and Other Protection North and South of the Border," American Intellectual Property Law Association (AIPLA) Spring Conference, May 7, 2010
  • "More than IP: Understanding the Critical Issues Global Companies Must Consider," Panel member, SIAA Ed Tech Business Forum, November 2009
  • "Protecting Against Parallel Imports and Gray Market Goods," Anti-Counterfeiting and Brand Protection Symposium, Toronto, Canada, October 2009
  • "Tasting, Kiting, Phishing and Pharming: IP Law Goes Online," Dorsey & Whitney Corporate Counsel Symposium, Minneapolis, Minnesota, November 2008
  • "Search Engines, Keyword-Linked Online Advertising and Trademark Infringement," Speaker, Intellectual Property Institute of Canada - New York State Bar Association Summer IP Meeting, Montreal, Canada, July 2008
  • "Trademarks In Business Transactions," Moderator, INTA Roundtable Program, February 2008
  • "Employee Inventions - A Trademark Perspective," Dorsey & Whitney-sponsored CLE seminar, February 2007
  • "What Every Business Needs to Know About Copyright", Dorsey & Whitney-sponsored CLE seminar, September 2006
  • "North American Licensing Strategies and Issues," Moderator, INTA Annual Meeting, May 2006
  • "Advanced Trademark Issues for the IP Practitioner," Program Chair and Presenter, Association of the Bar of the City of New York, April 2005
  • “Advanced Trademark Licensing Strategies” presented at Harvard Club, New York , co-presenter, L. Deinard, February 2004

Insights

Blog Post

INTA in Sunny San Diego: A Quick Wrap-Up

May 27, 2025

Photo by Sarah Robertson The Dorsey Trademark, Copyright + Advertising team is back from the 2025 International Trademark Association Meeting. It was one for the books. We mixed and mingled with old and new colleagues and as well as our friends from around the world. In between all the meetings and social events, we did manage to attend a few of the important panels and of course, our committee meetings. Here are the highlights: AI-Driven Advertising: Copyright Issues in the New Frontier – This was a lively and engaging panel that focused on managing the chaos that the burgeoning use of AI by companies and independent contractors has caused relating to ownership and authorship of AI-created content. The panel several times reiterated the mantra: Be Fair, Be Bold, Be Reasonable. They encouraged companies to ask whether they actually need to own the content that is created. They also discussed contract clauses “from the wild” and pointed out what works and what can be unreasonable. The most important takeaway was to make sure that whoever is using AI to create content is documenting the process carefully, regardless of whether it is a vendor or an employee. This is because the Copyright Office will require an explanation as to the use of AI to determine whether, and how much of, a work is registrable. USPTO Update: Fireside Chat with Acting Under Secretary of Commerce for Intellectual Property and USPTO Acting Director Coke Morgan Stewart – Acting Director Stewart answered questions about the PTO’s direction under the current administration. She indicated that the USPTO has explained to the administration that as a fee generating agency – rather than a taxpayer funded agency – the USPTO should not be subject to current cost-cutting measures. Despite this, Acting Director Stewart believes the agency can continue to reduce pendency and maintain quality without filing open positions. She also indicated the USPTO is looking into the use of AI to help with review of design marks and to detect fraud. Our neighbors to the North, the Canadian Intellectual Property Office (CIPO), also provided updates about the examination process and efficiency, indicating that they hoped to clear their backlog in just a few months. Greenwashing, Greenhushing and Sustainably: INTA’s Brands and Sustainability Committee met at this year’s conference to discuss the hot topics of greenwashing and greenhushing. If you are not familiar, greenwashing is essentially the false marketing of green/environmental or sustainable claims. Most recently, we’ve seen a lot greenwashing in the context of aspirational claims, namely brands striving to be carbon neutral or reduce their emissions by a certain year. Greenhushing, on the other hand, is when brands do good for the environment, but don’t publicize it. Greenhushing can occur for various reasons including, fear of accusations of greenwashing, consumer perception that “green” products are more expensive or inferior, or even for political reasons. While we didn’t make any promises or claims, the committee was proud to support a digital business card initiative and encourage the use of reusable water bottles to help make the conference more sustainable for all. Crafting Successful Agreements with Branding Agencies: A roundtable discussion took place between practitioners from Canada, the UK, and US on how brands can best partner with their creative agencies and areas of best drafting practices for agreements between the two. Discussion of the scope of services and consideration of AI-generated work product dominated the conversation, including how best to allocate risk created by the use of AI particularly where this work product is specifically contemplated or where influencers are involved. Discussion of the extent of preliminary clearance work members of the group were carrying out on behalf of agencies, or that agencies were otherwise expected to conduct, also took place. An overall downward trend in full, in-depth trademark search orders more generally, as shared by the one of the leading search companies present, was also covered. The unique risks attached to working with smaller agencies, including the absence of enterprise software licenses, was also discussed. Law and Policy | Rules of the Road in Engaging with Celebrities, Influencers, and Fans: This session brought a global perspective to how companies interact with and negotiate with celebrities and influencers in relation to the promotion of their brands. The panelists focused on how they prioritize and make use of time and resources depending upon the nature and length of a promotion, as well as the potential impact of the promotional activities on their brands. Interestingly, in Argentina, many companies create specific scripts that must be used by influencers to help minimize regulatory and legal risks. Aside from potential pitfalls in agreements, the panelists also discussed deepfakes and artificial intelligence and the impact on their promotional activities and on their brands, as well as issues with poor influencer behavior and even taxation issues. Truly, an ever-evolving area as technology becomes even more intwined in the influencer landscape. Successfully Mediating IP Disputes: Key Insights and Practical Tips – INTA’s ADR Committee hosted a panel discussion on trademark mediation, highlighting the growing value of mediation in resolving IP disputes. Panelists emphasized its advantages over litigation, including lower costs, reduced risk, and the opportunity for creative, business-focused solutions. They discussed the qualities of effective mediators, such as neutrality, communication skills, and business acumen, and considered whether mediators should propose solutions or simply facilitate dialogue. The consensus favored a balanced approach that maintains neutrality while offering constructive suggestions. The discussion also addressed the importance of preparation, confidentiality, and having decision-makers present. Challenges of virtual mediation were noted, including distractions and reduced engagement, as well as the supportive but limited role of AI. Real-world examples illustrated the need for mediators to guide the process while allowing parties to retain control over outcomes. Annual Review of Trademark Cases: Always an attendee favorite, this session featured an overview of trademark decisions over the last 12 months lead by Theodore Davis of Kilpatrick Townsend and John Welch of The TTABlog fame. Notable decisions include those upholding the validity of the Lanham Act’s “names clause” (requiring written consent to register a mark containing a person’s name) under the First Amendment (Vidal v. Elster, 602 U.S. 286 (2024)), confirming that inaccurate patent claims may provide grounds actionable false advertising claims (Crocs, Inc. v. Effervescent, Inc., No. 22-2160 (Fed. Cir. 2024)), holding mere use of a party’s name in a judicial proceeding is not actionable under Lanham Act (Dieujuste v. Sin, No. 24-1522-cv (2d Cir. 2025)), confirming that the TTAB’s “something more” doctrine applies only to the relatedness of goods to services and not to goods to goods (In re Samsung Display Co., Ltd., No. 90502617 (T.T.A.B. 2024)), and clarifying that product color resulting from practicing an expired patent cannot also have trademark significance because the color is functional under the expired patent (CeramTec GmbH v. Coorstek Bioceramics LLC, No. 2023-1502 (Fed. Cir. 2025)). John Welch also recounted his top losing TTAB arguments, with the number one slot belonging to arguments that attempt to impart in real-world limitations to goods/services in an application/registration (since the TTAB typically only considers the goods/services as listed), and listed some of his pet peeves, such as using the word “trademark” as a verb (ironically used as such by the Supreme Court in its Elster decision).

Blog Post

Artificial Intelligence Launching Agentic AI in an Uncertain U.S. Regulatory Landscape

February 11, 2025

Are you ready to begin adding AI Agents to your human teams? You will soon be getting requests to do so. While business teams will be wowed by what AI Agents and their subagents can do, the artificial intelligence regulatory environment is increasingly uncertain, and we advise caution. Within its first few days, the new administration revoked the 2023 Executive Order on Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (the “Old AI Executive Order”) – which had been intended to mitigate risks associated with AI technologies by imposing safety guidelines such as a watermarking system for AI-generated content. Next, the president issued a new executive order Removing Barriers to American Leadership in Artificial Intelligence (the “New AI Executive Order”), providing White House staff 180 days to develop a plan “to sustain and enhance America’s global AI dominance in order to promote human flourishing, economic competitiveness, and national security.” Under the New AI Executive Order, federal agencies are required to immediately review and suspend, revise, or rescind any prior governance and safety measures undertaken to comply with the Old AI Executive Order that are not consistent with the New AI Executive Order. Meanwhile, on January 21, the president announced a new $500 billion private sector deal, “The Stargate Project,” which is a new joint venture that relies on SoftBank, OpenAI, Oracle, and MGX as initial equity funders in a bid to rapidly expand U.S. AI infrastructure by building massive new data centers, first in Texas then in other potential sites across the country. In the same week, leading big tech companies including Oracle and OpenAI each announced the next phase of the AI revolution with the release of new AI Agents designed to autonomously handle specific tasks and ultimately “join the workforce and materially change the output of companies.” What Are AI Agents? While traditional AI chatbots using large language models (“LLMs”) are designed to respond to users within the AI system, the latest generation of advanced AI Agents (aka AI Super-Agents or Agentic AI) are now empowered to interact with computer, network, and internet environments to automate tasks. Open AI states that its new AI Agent, Operator, “can be asked to handle a wide variety of repetitive browser tasks such as filling out forms, ordering groceries, and even creating memes.” Accordingly, Operator “can ‘see’ (through screenshots) and ‘interact’ (using all the actions a mouse and keyboard allow) with a browser, enabling it to take action on the web without requiring custom API integrations.” By combining the power of LLMs with new technologies such as the Oracle Cloud Infrastructure and retrieval-augmented generation, Oracle’s AI Agents can interact with enterprise data and can apparently be used by companies to recruit qualified job candidates, perform complex customer data analytics, optimize call centers, and expedite legal, financial, and academic research tasks. AI Agents can be trained or instructed to follow the values of a user or business. Whether that can be consistently implemented remains to be seen. In testing, some AI systems have been shown to engage in “scheming” where they change results or take unexpected actions toward an ultimate goal set by the user. Although the usefulness of these technologies is undeniable, companies looking to deploy AI Agents should be aware of the legal risks and pitfalls that may accompany the use of these revolutionary new tools. Legal Challenges and Mitigation Strategies AI Agency Liability. In July 2024, a California district court allowed a case against HR and finance platform Workday to proceed, stating that an employer’s use of Workday’s AI-powered HR-screening algorithm may create direct liability for both the employer and Workday under the theory of agency liability. In this hiring discrimination case, the plaintiff alleged that his prospective employer delegated “traditional hiring functions, including rejecting applicants, to the algorithmic decision-making tools provided by Workday.” The court found that by designing an AI technology to make decisions that would normally be made by a live employee, Workday should be treated as an agent of the employer for purposes of liability so long as the employer actually relied on the AI technology in its hiring process. While this case is still making its way through the courts, AI Agent vendors and deployers could subsequently be exposed to both civil and criminal liability based on the actions of the AI Agent, a theory that had previously only been applied by the courts to the actions of live humans. AI Product Liability. Given the increased responsibility and autonomy being granted to AI Agents, it is possible that developers and deployers of AI Agents could also be required to contend with product liability claims. Manufacturers and sellers can be held responsible for injuries caused by defective or unreasonably dangerous products. If an AI Agent makes a poor and costly decision, a plaintiff may claim that the AI Agent was defectively designed and/or that the developer failed to adequately warn the plaintiff of the AI Agent’s limitations. This theory of liability is currently being tested in cases against AI-chatbot platform Character.AI. In the fall of 2024, the mother of a deceased minor in Florida brought a product liability case against the developers of Character.AI – an AI-chatbot role-playing platform that allows users to create and converse with AI-powered characters – alleging that her son died by suicide after becoming harmfully dependent on his relationship with his Character.AI companion “Dany.” In December, parents in Texas brought additional product liability claims, stating that, without warning, Character.AI chatbots exposed their children to hypersexualized content, self-harm, and violent behaviors, with one chatbot allegedly encouraging a child to kill his parents when they tried to limit his screen time. AI Contractual Considerations. Businesses seeking to onboard AI Agents should implement clear contractual provisions to allocate and manage risk. When reviewing warranties, limitations of liability, and indemnification clauses, companies should want to know if and to what extent the AI Agent vendor will indemnify the company for an AI Agent’s decision making, especially if those decisions are illegal or cause harm to end-users or others. Businesses should also consider who is responsible for training employees to use AI Agents safely and whether that training relates to the AI provider’s contractual liability. In addition to requiring compliance with emerging state and international AI regulations such as the Colorado AI Act and the EU AI Act, companies should also carefully contemplate intellectual property (“IP”) and data ownership, rules for algorithmic training inputs, and customization of standard liability shifting terms. Whereas typical software-as-a-service contracts usually address ownership of software and/or underlying data, AI Agent vendor contracts should also address IP-ownership of AI-generated content such as images, text, and even new software. Regarding algorithmic training inputs, companies must decide whether the AI Agent’s algorithm can train on company data, and if so, how such company data must be protected and stored. In addition, businesses should be wary of AI Agents violating third party terms of service which may prohibit access and use by bots. In non-negotiated use of Agentic AI, such as when a company deploys an off-the-shelf AI Agent from one of the major providers, companies should similarly review the provisions outlined above and weigh the ultimate risk of deploying this novel technology. AI Privacy and Cybersecurity Considerations. Using an AI Agent may result in the processing of enormous amounts of personal information as defined by state, federal, and international data privacy laws. For example, AI Agents designed to read and prepare automated responses to emails may digest any personal information contained in a user’s inbox, while an AI Agent designed to make investment decisions will process sensitive financial information about the user. By collecting such large amounts of personal information, companies may grow their cybersecurity attack target, as bad actors are typically attracted to companies known to collect large amounts of detailed and/or sensitive personal information. Furthermore, by deploying an AI Agent, a company in scope for comprehensive state privacy laws, such as the California Consumer Privacy Act, may be required to offer consumers the opportunity to opt-out of the AI-Agent’s automated decision making, while also disclosing to its consumers how their personal information is collected and used by the AI Agent, including whether their personal information subsequently trains the AI Agent’s algorithm. AI Agents that are not adequately directed and supervised could also perpetrate scams, develop vulnerable software code, or cause cybersecurity incidents, so human supervision and real-time monitoring will be essential to reduce legal risk, especially with initial uses of AI Agents. With the launch of AI Agents, concerns about AI scheming have become immediate. Adding AI Agents to your teams may have serious, unintended consequences and should involve significant testing and implementation of controls prior to and during use. Businesses will soon be training AI Agents in their corporate values and adding AI Agents to their teams. The way we work will never be the same.

Firm Highlights

Insights

Minnesota Consumer-Fraud Enforcement: Disclaimers Won’t Cure Deception, and Penalties Can Add Up

Misleading advertising claims can lead to costly consequences. In State of Minnesota ex rel. Ellison v. Wall & Associates, Inc., No. A25-2064, 2026 WL 3118291 (Minn. App. Oct. 19, 2026), the Minnesota Court of Appeals recently affirmed a bench trial verdict against a tax-relief company and two executives for violations of the Minnesota Consumer Fraud Act (“MCFA”) and the Minnesota Deceptive Trade Practices Act (“MDTPA”). The decision, which affirmed a substantial restitution and civil penalty judgment, underscores the broad power of the Minnesota Attorney General to act against deceptive sales practices. The decision also offers practical lessons for businesses seeking to reduce liability risks in consumer-facing communications. Background Wall & Associates (“W&A”), a Virginia-based tax-relief company, marketed assistance to taxpayers seeking relief from outstanding federal and state tax liabilities, often with offers in compromise—agreements to settle tax liabilities for less than the amount owed. In its extensive advertising campaigns, W&A represented that its average client received a 90% reduction in their tax debt, that it was a local company with Minnesota offices, that it provided legal services, and that it would “Solve ALL Tax Problems.” In reality, W&A’s promises bore little resemblance to what many clients received. Most of W&A’s clients saw just a 9.5% reduction in federal tax debt and 1.2% in state tax debt. W&A had no permanent Minnesota offices. And W&A provided neither legal representation nor assistance with filing tax returns—those services required referrals to separate firms for an additional fee. All the while, W&A clients paid upfront and recurring fees, including during periods when W&A did no work on their cases. Minnesota Attorney General Keith Ellison sued W&A, its founder and owner Ernest Kenneth Wall, and its president and CEO Patrick Mark Yates, alleging violations of, among other laws, the MCFA and the MDTPA. Following a 12-day bench trial, the district court determined that W&A violated the MCFA and MDTPA through its false and embellished advertising. The district court also held Wall and Yates individually liable for those violations because they directed, participated in, and acquiesced in the violations. The district court ordered injunctive relief, $2.7 million in restitution (with Wall and Yates jointly and severally liable for $1.3 million), and civil penalties of $786,517 against W&A, $415,500 against Wall, and $207,750 against Yates. The district court also awarded over $2.5 million in attorneys’ fees and costs to the state. W&A, Wall, and Yates appealed to the Minnesota Court of Appeals, which affirmed the district court’s decision on October 19, 2026. Although W&A, Wall, and Yates challenged the judgment on numerous grounds, several highlights of the decision provide important takeaways for consumer-facing businesses. Individual Reliance Is Not Required for Statutory Liability W&A argued that Attorney General Ellison had to prove a causal nexus between each violation of the MCFA and MDTPA and the injury to a particular consumer to establish liability. In W&A’s view, this required proof that each injured consumer had personally relied on W&A’s false representation. The Court of Appeals rejected this argument based on the MCFA’s and MDTPA’s plain language, which requires no proof of actual deception or confusion by consumers. The Court of Appeals finally pointed to the Minnesota Supreme Court’s decision in State v. Minnesota School of Business, Inc., which held that when a defendant’s misrepresentations are directed at and affected “a broad group of consumers, proof of direct individual reliance is not required to establish a causal nexus between MCFA violations and the harm suffered by consumers.” 935 N.W.2d 124, 135 (Minn. 2019). The Court of Appeals affirmed, however, that a causal nexus is necessary to support an award of damages under the MCFA and MDTPA. In making that determination, district courts look to various factors, including whether the misrepresentations were “longstanding, pervasive, and widespread in communications directed to consumers,” whether the seller intended and understood that consumers would rely on the misrepresentations, and whether the information was of a kind on which consumers would typically rely. The Court of Appeals’ decision continues Minnesota School of Business’s broad interpretation of liability under the MCFA and the MDTPA. Coordinated marketing campaigns to a “broad group of consumers” may expose businesses to MCFA and MDTPA liability without customer-by-customer proof of injury. That said, a causal nexus remains an element of an MCFA and MDTPA claim, and businesses involved in litigation should build a clear record at trial and on appeal showing how each of the relevant factors bears on the causal-nexus inquiry. Contractual Disclaimers Are Not an Automatic Defense to a Misleading Pitch W&A next argued that disclaimers in its client contracts prevented consumers from claiming they had been misled by its advertising. Reiterating that individual reliance is not required under the MCFA and MDTPA, the Court of Appeals held that a contractual disclaimer does not necessarily defeat a claim based on a conflicting oral representation. And on the facts of this case, the Court of Appeals agreed with the district court that W&A’s contractual disclaimers were insufficient given the extensive misrepresentations by W&A and the unequal bargaining power between it and its customers. This holding confirms that contractual disclaimers are not a cure-all for misleading advertising or sales practices. Businesses should review the entire customer journey, including pre-contract representations, as those representations may survive a contractual disclaimer to the contrary. And if faced with litigation, businesses should build a strong record, both at trial and on appeal, showing why any disclaimer is effective in context. The State Has Broad Authority to Seek Restitution W&A also challenged Attorney General Ellison’s authority to seek restitution under the state’s parens patriae authority to protect residents’ collective interests, arguing that injury to only 228 Minnesotans did not affect a sufficiently substantial segment of the population. The Court of Appeals rejected a simple headcount approach, instead explaining that the state had a legitimate interest in protecting residents’ economic well-being as a whole. In any event, the Court of Appeals held that if restitution was not appropriate under the state’s parens patriae authority, then it would still be appropriate under the Attorney General’s enforcement powers under Minn. Stat. § 8.31. The decision reinforces that the broader and more sustained the deceptive advertising, the stronger the case for restitution to protect Minnesotans’ economic interests. Civil Penalties Accrue Per Violation, Not Per Defendant The Court of Appeals finally rejected W&A’s claim that the Attorney General’s enforcement powers under Minn. Stat. § 8.31 permit only civil penalties of up to $25,000 for each defendant. Rather, the Court of Appeals explained that penalties are limited to $25,000 per violation. Multiple violations can therefore produce substantially greater penalties. The Court of Appeals also rejected the argument that restitution made penalties unnecessary: repaying consumers does not eliminate the need to address gains from deceptive conduct and deter future violations. Final Takeaways Align every consumer-facing communication. Broad and extensive marketing campaigns can expose businesses to stronger enforcement standards under the MCFA and MDTPA, making it critical that consumer communications remain accurate and consistent from the first advertisement through the final sale. Plan for layered enforcement exposure. Penalties under the MCFA and MDTPA can add up quickly: W&A, Wall, and Yates ultimately faced more than $6 million in civil penalties, restitution, and attorneys’ fees. The decision continues a line of Minnesota cases recognizing the Attorney General’s broad consumer-protection authority. Details matter. Although the Attorney General’s enforcement power is broad, it is not boundless. As the Court of Appeals explained, issues of causation, the effectiveness of contractual disclaimers, and the availability of restitution and civil penalties all turn on the specific facts of the case. Effective advocacy at trial and on appeal is critical to developing the facts relevant to liability and damages.

Insights

Observations on the SEC’s 2027 Examination Priorities

The SEC’s Division of Examinations (the “Division”) recently announced its examination priorities (“Exam Priorities”) for fiscal year 2027.1 Although many of the Division’s core areas of focus remain consistent with fiscal year 2026, the 2027 Exam Priorities include notable changes and refinements, which we discuss below, along with other key 2027 examination priorities. Dorsey Observations Renewed focus on economic conflicts of interest. After certain economic-incentive topics received less emphasis in the 2026 Exam Priorities2, the Division has again expressly identified economic conflicts as an examination focus. The 2027 Exam Priorities indicate that the Division will prioritize reviewing advisers’ fiduciary obligations relating to economic conflicts of interest raised by fee rebates, fee and expense calculations, cash management, quid pro quo arrangements, and deposits and withdrawals. Greater emphasis on private-fund practices. Building on the private-fund items in the 2026 Exam Priorities, the 2027 Exam Priorities indicate that the Division will assess private-fund disclosures and controls relating to investment allocations, leverage, affiliated service providers, and fees and expenses. The Division also identified investments in private companies through special purpose vehicles (“SPVs”) and loans provided by private funds and business development companies (“BDCs”) as products the Division will scrutinize. Advisers, particularly private-fund advisers, should evaluate whether their disclosures and compliance programs address these areas. Expanded focus on AI-related cybersecurity risks. While the 2026 Exam Priorities focused on advisers’ use of and representations regarding artificial intelligence (“AI”), the 2027 Exam Priorities specifically highlight AI-enabled cybersecurity threats, including AI-generated phishing and synthetic or “deepfake” voice and video used for social engineering. The shift signals that registrants should consider whether their cybersecurity policies and controls adequately address these evolving threats. New focus on proxy advisory firms. The 2027 Exam Priorities state that the Division will examine advisers that rely on proxy advisory firms, including how those advisers evaluate the firms’ recommendations, assess the bases for those recommendations, identify potential conflicts of interest, and determine whether that reliance satisfies applicable legal obligations. Advisers that rely on proxy advisory firms may wish to consider whether their compliance programs address these areas. Updated focus on Regulation S-P and Regulation S-ID. The 2026 Exam Priorities stated that the Division would engage firms during examinations regarding their progress in preparing incident response programs ahead of the compliance dates for the amendments to Regulation S-P and would examine compliance with the amended rule after those dates. The 2027 Exam Priorities indicate that examinations will focus on whether firms have developed, implemented, and maintained reasonably designed policies and procedures addressing administrative, technical, and physical safeguards to protect customer information and that, in accordance with the amended rule, staff will evaluate response program policies and procedures for unauthorized access to or use of customer information, including customer notification procedures and oversight of service providers. With respect to Regulation S-ID, the 2027 Exam Priorities indicate that examiners will assess whether firms are updating their Identity Theft Prevention Program to address emerging risks, such as those related to AI and stolen credentials. Advisers may wish to consider whether their compliance programs address these areas, as applicable. Summary of Other 2027 Examination Priorities Beyond the developments discussed above, many of the Division’s core examination priorities remain consistent with fiscal year 2026. These include investment adviser fiduciary obligations and compliance programs, examinations of never-examined and recently registered advisers, and cybersecurity and operational resiliency. The Exam Priorities are not exhaustive, and examinations will vary based on each registrant’s business, activities and risks. Advisers should consider the 2027 Exam Priorities in reviewing their compliance programs and preparing for potential examinations, including by: Reviewing risk disclosures and controls. The Division states that, when examining advisers to private funds, it will assess whether investment-related risk disclosures are consistent with fiduciary standards and whether compliance policies, procedures, and controls are designed to address both fund-level and investment-level risks. Reviewing disclosures on allocations, leverage, and affiliated service providers. The 2027 Exam Priorities identify disclosures related to certain investments and allocations, the use of debt and fund-level lines of credit, and the use of affiliated service providers as examples. Confirming the accuracy of fee and expense calculations. The Division states that it will assess the accuracy of fee and expense calculations at both the fund and investment levels, and it identifies fee rebates, cash management, quid pro quo arrangements, deposits, and withdrawals as areas in which economic conflicts of interest may affect the impartiality of advice. Reviewing recommendations of illiquid or hard-to-trade products. The Division states that it will prioritize advisers that recommend products that are difficult to trade, have unusual features, or are illiquid, including loans provided by private funds or BDCs and investments in private companies through SPVs. Confirming that the compliance program is implemented and reviewed. The Division states that it will review compliance program components such as marketing, valuation, and custody, as appropriate, and will typically analyze the annual compliance review. It will also focus on compliance practices when advisers have started advising new asset classes or clients or grown through mergers or acquisitions. 1 SEC Division of Examinations 2027 Examination Priorities. 2 See Dorsey’s Client Alert on the SEC’s fiscal year 2026 exam priorities.

Insights

The Methane Regulatory Pendulum Swings Again: EPA Proposes Sweeping Changes to Federal Standards for the Oil and Natural Gas Sector

Few environmental regulations better illustrate Washington’s regulatory “ping-pong” than EPA’s methane standards for the oil and natural gas sector. Over the last decade, successive administrations have repeatedly expanded, narrowed, rescinded, reinstated, and revised federal methane requirements, leaving industry to navigate a shifting compliance landscape with each change in administration. EPA’s October 27, 2026 proposal to reconsider significant portions of the 2024 oil and natural gas New Source Performance Standards (“NSPS”) and Emission Guidelines (“EG”) under Subparts OOOOb and OOOOc represents the latest swing of the regulatory pendulum. If finalized, the proposal would substantially reduce compliance obligations in several areas, particularly with respect to lower-producing wells, associated gas flaring, equipment and control-device standards, and the Super Emitter Program. EPA estimates that the proposal would result in approximately $45 billion in savings, while preserving what the agency considers appropriate methane emission controls. EPA’s proposal was published in the Federal Register on October 29, 2026. Comments must be received on or before December 16, 2026.  Significantly, EPA is not using this rulemaking to reconsider its general authority to regulate methane emissions from the oil and natural gas sector. Rather, the agency is addressing specific requirements adopted in the 2024 methane rule, while broader questions concerning greenhouse gas regulation are being addressed in separate proceedings. The present proposal therefore focuses on the appropriate design and scope of particular methane regulations, rather than resolving the threshold question of whether methane may be regulated under the Clean Air Act at all. I.    EPA Proposes to Eliminate the Super Emitter Program Among the proposal’s most consequential changes is the complete elimination of the Super Emitter Program. Adopted in 2024, the program created a regulatory framework under which EPA-certified third parties could identify large methane releases using approved remote-sensing technologies. Upon receiving a qualifying notification from EPA, owners and operators were required to investigate the reported emissions event, report findings to EPA, and take corrective action where necessary. EPA now proposes to repeal the Super Emitter Program in its entirety. The agency questions the program’s legal and policy foundations, including the role of third parties in identifying emissions events and triggering regulatory obligations. EPA also questions whether the program is necessary or effective given other requirements applicable to regulated sources and whether its expected emissions reductions justify its costs and implementation challenges. Because the program was incorporated into both the NSPS applicable to new, modified, and reconstructed sources and the EG applicable to existing sources, its removal would affect federal requirements as well as the presumptive requirements that States otherwise would be expected to address in Clean Air Act § 111(d) plans. Importantly, EPA’s proposed repeal does not prevent States from developing and implementing their own Super Emitter Program based on the existing requirements, which several states are already doing.  II.    EPA Reconsiders Associated Gas Requirements Another centerpiece of EPA’s proposal is its reconsideration of the 2024 rule’s restrictions on flaring associated gas from oil wells. The 2024 rule determined that the best system of emission reduction (“BSER”) generally required operators to capture and beneficially use associated gas by routing it to a sales line, using it onsite, or reinjecting it, rather than routinely flaring it. Although EPA provided certain transition periods and compliance flexibilities, particularly for wells facing infrastructure constraints, the rule ultimately established a framework strongly favoring capture and utilization over flaring. Since promulgation, EPA has received significant feedback regarding gathering-system limitations, gas quality issues, and other practical barriers operators face in securing outlets for associated gas. In response, EPA proposes to replace the existing capture-focused approach with a substantially more flexible standard. EPA argues that the 2024 rule relied too heavily on the availability of third-party gathering and processing infrastructure that is often beyond an operator’s control, raising questions regarding achievability and cost-effectiveness. Under the proposal, BSER would be based on routing associated gas to a flare or other control device capable of achieving at least a 95 percent reduction in methane and volatile organic compound (“VOC”) emissions. Operators could continue to capture gas for sale, use it onsite, or reinject it where feasible, but those practices would no longer be required. EPA also proposes that if a portion of associated gas is routed to sales or used for another purpose, the remaining portion must comply with the 95 percent standard. For example, if a company can route 40 percent of its associated gas to a sales line, the company would need to route the other 60 percent to a control device with a 95 percent reduction, or to a flare. EPA is also soliciting comment on less sweeping alternatives that would preserve the basic structure of the 2024 associated-gas program, while providing additional compliance flexibility. In particular, EPA requests comment on whether it should retain the current capture-and-sales framework but expand the circumstances under which temporary flaring is permitted or extend the duration of temporary flaring allowances where operators face infrastructure constraints. EPA appears to recognize that gathering-system availability, processing constraints, and other third-party factors can affect an operator's ability to route gas to sales, even where the operator ultimately intends to comply with the capture requirements. These requests for comment suggest that EPA is considering whether targeted revisions to the existing framework could address implementation concerns without fully abandoning the 2024 rule's underlying preference for gas capture and beneficial use. III.    EPA’s Reconsideration of the “No Identifiable Emissions” Standard EPA's proposal would substantially revise the 2024 rule’s “no identifiable emissions” (“NIE”) requirements applicable to certain covers and closed vent systems (“CVS”) associated with storage tanks. Under the existing rule, covered equipment generally must operate without identifiable emissions, creating a compliance framework that focuses heavily on the absence of observable emissions rather than solely on equipment design or overall control effectiveness. Since promulgation, industry has argued that the standard effectively functions as a zero-emissions requirement that may be difficult to satisfy under all operating conditions, even where equipment and vapor control systems are properly designed, maintained, and operated. Moreover, EPA stated in the preamble to the 2024 rule that any identified emissions would constitute a deviation of the emissions limitation, resulting in a framework under which the observation of emissions could itself establish noncompliance. EPA now proposes to separate the requirements into distinct design and operational components and to fundamentally alter how compliance with the operational NIE requirement is evaluated. EPA proposes to distinguish between deviations of the design requirements and deviations of the operational NIE requirements. Under the proposed approach, failure to repair an identified emission or defect within 24 hours would constitute a deviation of the design requirement, although not necessarily an underlying violation. Separately, operators could demonstrate compliance with the operational NIE requirement by making repairs as soon as practicable, with an initial repair attempt within five days and final repair within 30 days, or by qualifying for the existing delay-of-repair provisions. A deviation of the operational requirement would occur if the applicable repair deadlines are not met and the delay-of-repair provisions do not apply. The proposal also establishes a new framework for addressing recurring or “chronic” emissions events. After the third emissions event or defect from the same cover or CVS within a year, the owner or operator would be required to conduct an investigative analysis within 10 days to determine whether the underlying cause relates to equipment design, operation, maintenance, or prior repair efforts. The results of that investigation would have important compliance implications. If recurring emissions are attributable to a design flaw, EPA would treat the issue as a deviation of the design requirements. If the emissions result from inadequate prior repairs, the deviation would be attributed to the repair requirements. If operations, maintenance, or other site practices are responsible, the deviation would be classified under the operational requirements. EPA would also require implementation of corrective measures identified through the analysis, including design modifications within 90 days and operational or maintenance-related corrective actions within 30 days. Taken together, these revisions would shift the NIE standard away from a framework in which the mere presence of emissions may establish noncompliance and toward one that focuses on whether operators identify emissions, complete timely repairs, investigate recurring problems, and address the root causes of repeated emissions events. IV.    Solicitation of Comment on “Legally and Practicably Enforceable” Standard EPA is also soliciting comment on the definition of “legally and practicably enforceable” (“LPE”), which industry has identified as one of the more problematic existing requirements. Under the 2024 rule, EPA adopted an interpretation of LPE that many commenters argued effectively disqualifies numerous state regulatory programs, permits, and other federally enforceable mechanisms from serving as the basis for remaining below applicable Subpart OOOOb storage tank thresholds. In particular, stakeholders have asserted that the current LPE framework makes it difficult for state air permitting programs and other state regulatory requirements to satisfy EPA's criteria, thereby causing more storage tanks and other emission units to remain subject to Subpart OOOOb requirements than would otherwise be the case. EPA now requests comment on whether its current interpretation of LPE is overly restrictive and whether alternative approaches would better account for the manner in which state permitting and regulatory programs are administered and enforced. The request is significant because a broader interpretation of LPE could allow a wider range of federally enforceable state permits and regulatory requirements to satisfy exemption criteria under OOOOb, potentially reducing the number of storage tanks and other sources subject to direct NSPS regulation. As a result, the LPE issue has implications that extend beyond compliance mechanics and could materially affect the scope of sources regulated under the federal methane program. V.    Revised Requirements for Marginal Wells EPA is also proposing significant revisions to the treatment of lower-producing wells under Subparts OOOOb and OOOOc. The agency notes that marginal wells constitute a substantial portion of the nation’s producing well inventory but account for a relatively small share of overall production. At the same time, EPA discusses studies estimating that marginal wells contribute a disproportionate share of methane emissions from oil and natural gas production. The agency is evaluating whether the 2024 rule appropriately accounts for the operational characteristics, emissions profiles, and compliance costs associated with these wells. To address those concerns, EPA is proposing two alternative approaches to well-site subcategorization. Under the first option, EPA would distinguish between marginal and non-marginal well sites. EPA proposes to define a marginal well as a well that produced no more than 15 barrels of oil equivalent (“BOE”) per day over the prior 12-month period and a marginal well site as a site consisting exclusively of marginal wells with total site-wide production of no more than 15 BOE per day over the same period. EPA is also soliciting comment on whether marginal wells should be further subdivided based on production levels, including a potential distinction between sites producing 6 BOE per day or less and sites producing more than 6 BOE but no more than 15 BOE per day, which could result in additional regulatory flexibility for the lowest-producing wells. Under the second option, EPA would distinguish between conventional and unconventional well sites and tailor requirements based on that classification, including reduced requirements for conventional wells. The agency is seeking comment on which framework better reflects the operational and emissions characteristics of different well sites, as well as whether additional subcategories should be established within the marginal-well population and the extent to which compliance requirements should differ among categories. VI.    LDAR, Pneumatic Controllers, Control Device Monitoring, and Facility Modifications EPA's proposal also includes several targeted revisions to the 2024 rule's leak detection and repair (“LDAR”) requirements. Most notably, EPA proposes additional flexibility in the use of advanced monitoring technologies and seeks to move away from compliance frameworks that rely heavily on a single detection method. The agency is proposing changes intended to facilitate the use of multiple monitoring technologies, including optical gas imaging and other alternative detection approaches, and is seeking comment on whether technology-neutral compliance options can achieve equivalent emissions reductions at lower cost. EPA also proposes revisions for components and equipment that are particularly difficult to monitor using conventional LDAR methods, reflecting concerns that certain 2024 requirements may not be practical or cost-effective in the field. More broadly, EPA questions whether some of the monitoring frequencies adopted in 2024 appropriately balance compliance burdens and emissions-reduction benefits and seeks comment on additional opportunities to tailor LDAR obligations based on emissions risk and source characteristics. EPA also proposes technical revisions to requirements governing control devices and related equipment. These include changes addressing continuous pilot-flame requirements, flame-monitoring data deviations, control-device alerts, visible-emissions test conditions, temporary or backup control devices, temporary process controllers, and control-device categories. The agency’s stated objective is to provide additional compliance flexibility while maintaining appropriate emissions controls. The practical effect will depend on the final requirements and the equipment and circumstances to which each amendment applies. The proposal also addresses pneumatic controllers and equipment leaks at gas processing plants. For certain high-pressure process controllers at transmission compressor stations, EPA proposes a separate regulatory approach based on its reassessment of technical feasibility and cost. The proposal should not be read as establishing a general exemption for pneumatic controllers across the industry. EPA also proposes changes to other equipment-specific requirements, including requirements applicable to pumps, storage vessels, and equipment leaks at gas plants, in response to concerns raised following promulgation of the 2024 rule. Finally, EPA proposes changes to certain requirements governing liquids unloading and other well-site operations, as well as technical corrections and clarifications to the existing regulatory text. These provisions form part of EPA’s broader effort to address implementation concerns and reassess the costs and expected emissions reductions associated with selected requirements in the 2024 rule. Operators should evaluate the specific proposed amendments applicable to their facilities rather than assume that the proposal would provide across-the-board relief from existing monitoring, equipment, or control-device obligations. VII.    Implications for States and Future Congressional or Administrative Action EPA’s proposal would substantially revise several consequential elements of the 2024 methane rule, but it would not eliminate regulation of existing oil and natural gas sources under Clean Air Act § 111(d). As a result, states remain subject to the existing obligation to develop and submit plans for existing sources. If the proposed revisions are finalized, states currently developing those plans may need to reevaluate key program elements, including requirements relating to associated gas, well-site subcategories, the Super Emitter Program, and other compliance obligations. The proposal does not itself extend the January 22, 2027 deadline for state-plan submissions established under the existing framework. The Congressional Review Act (“CRA”) remains a potential source of uncertainty. Depending on when EPA submits a final rule to Congress and the applicable congressional-session timing, a future Congress and President could seek to disapprove the rule under the CRA. A successful disapproval would invalidate the rule and generally restrict the agency from issuing a rule in substantially the same form absent subsequent statutory authorization. The CRA’s lookback provisions can affect the period during which a rule remains subject to congressional review, so the risk cannot be assessed solely by reference to the calendar year in which the rule is finalized. The timing of finalization and submission to Congress, together with the applicable congressional calendar, will determine the extent of that exposure. Finally, unlike the CRA, which can nullify a recently promulgated rule through legislative action, a future administration seeking to unwind this rule would generally need to proceed through a new notice-and-comment rulemaking. EPA would need to revisit the underlying BSER determinations, cost analyses, technical feasibility findings, and enforceability conclusions that support the final rule. Because this proposal is grounded heavily in findings regarding achievability, legal and practical enforceability, and cost-effectiveness, a future administration would need to develop a sufficient record supporting different conclusions before reinstating more stringent requirements. Consequently, the final rule may prove more durable than prior pendulum swings, even if it remains politically controversial.