Insights

On March 12, 2026, the U.S. Commodity Futures Trading Commission (CFTC) took formal steps toward establishing additional regulations for prediction markets. The agency issued an Advanced Notice of Proposed Rulemaking (ANPRM) soliciting public input on potential new rules, and separately, released staff guidance outlining its views on how existing rules apply to prediction market platforms currently in operation. These developments signal a significant shift in the regulatory landscape for an industry that has grown rapidly over the past year.

The New Jersey Legislature is considering two bills, that if enacted, would prohibit business entities from using either consumers' personal data or “personalized algorithmic pricing” to set prices for merchandise or services, including groceries. If enacted, the new laws would have broad implications for companies across industries that rely on algorithmic or data-informed pricing strategies. In her recent State Budget Address, New Jersey Governor Mikie Sherrill pledged to sign the proposals into law if they reach her desk.

While state attorneys general have traditionally led consumer protection enforcement, local governments are increasingly deploying their own powers to prosecute high-stakes affirmative litigation. The results speak for themselves: Los Angeles and Chicago have secured multi-million-dollar judgments and settlements in consumer deception cases over the past decade.

The Supreme Court has concluded that the International Emergency Economic Powers Act (IEEPA) does not authorize President Trump to impose tariffs.  For a detailed analysis of the decision, please see our Trade Group’s full alert.

California Attorney General Rob Bonta announced an unprecedented investigative sweep into “surveillance pricing” practices by grocers, hotels, and retailers, marking the first state-level inquiry targeting personalized pricing under data privacy laws.

2026 will be a significant year for retailers and e-commerce companies, with significant changes on the horizon that will affect the entire industry and ecosystem. Potential headwinds and developments in product safety, pricing, artificial intelligence, data privacy, website compliance, and environmental responsibility are expected. But amidst these changes, there are likely significant opportunities that retail and e-commerce businesses can capitalize on.

On December 22, 2025, the Federal Trade Commission (“FTC”) took its first step in enforcing its August 2024 Consumer Review Rule (“Rule”) that regulates online companies’ moderation and curation of user reviews, by issuing warning letters to 10 unidentified companies alerting them of their potential violations of the Rule, and cautioning that continued noncompliance could lead to enforcement action and substantial civil penalties. The FTC warning letters directed each recipient to immediately cease and desist from any non-compliant practices and required the company to confirm in writing the steps taken to ensure ongoing compliance with the Rule.

In the first few years following the public launch of generative artificial intelligence (AI) in the autumn of 2022, litigation related to AI focused primarily on claims of copyright infringement. Suits revolved around allegations that the data on which AI models train, and/or the output they produce, infringe upon the intellectual property rights of others. (While some of these cases have settled or reached preliminary judgments, many remain ongoing.)

On September 9, 2025, the Ninth Circuit Court of Appeals affirmed a district court’s denial of a preliminary injunction as to certain provisions of California’s Protecting Our Kids from Social Media Addiction Act. This interlocutory ruling is significant for two reasons. First, it demonstrates why and how state laws can withstand and avoid First Amendment challenges. Second, it showcases the potential difficulties in establishing associational standing on behalf of member technology and digital commerce companies.

On August 8, 2025, the Attorneys General of 23 Republican-led U.S. states (the “AGs”) sent a letter to Science Based Targets Initiative (“SBTi”), a U.K. non-profit climate organization, expressing concern with the SBTi’s climate initiatives.[1]SBTi had previously received a subpoena from Florida Attorney General James Uthmeier in connection with his office’s investigation into what he described as a “climate cartel,” which he alleges includes SBTi and CDP (formerly the Carbon Disclosure Project).[2]

Over the past several months, Missouri and Florida have gone on the offensive against the nation’s largest proxy advisors related to what they deemed “radical” agendas in providing proxy advice. In Texas, two of the largest proxy advisors, Institutional Shareholder Services Inc. (ISS) and Glass, Lewis & Co., LLC (“Glass Lewis”), punched first, filing separate complaints in federal court against Texas Attorney General Ken Paxton in his official capacity, challenging the facial and as applied constitutionality of Senate Bill 2337 (“S.B. 2337” or “the Act”). The Act would require all proxy advisory services to disclose advice or recommendations that are “not provided solely in the financial interest of the shareholders of a company.” Advice and/or a recommendation is defined as being “for nonfinancial reasons” when it “is wholly or partly based on, or otherwise takes into account, one or more nonfinancial factors” including “an environmental, social, or governance (ESG) goal,” “diversity, equity, or inclusion (DEI)”, or “a social credit or sustainability factor or score.” Both Glass Lewis and ISS seek declaratory and injunctive relief enjoining the enforcement of S.B. 2337 as unconstitutional under the First and Fourteenth Amendments. Specifically, they allege the Act violates the First Amendment’s prohibition against viewpoint discrimination, infringes upon their freedom of association, and is unconstitutionally vague. Glass Lewis also argues that the Act violates the Dormant Commerce Clause, and that it is preempted by the Employment Retirement Income Security Act of 1974 (“ERISA”).

On July 14, 2025, the FTC announced its enforcement action against telemedicine company NextMed over charges it used misleading prices, fake reviews and deceptive weight-loss claims to sell GLP-1 weight-loss drugs. The FTC has now settled its charges that NextMed used deceptive practices to lure consumers into buying their weight-loss membership programs that had hidden terms and conditions. With the rise of both authentic and counterfeit GLP-1s throughout the nation and the proliferation of the availability of GLP-1s from telemedicine/telehealth companies, online pharmacies and medspas, this announcement is a sign that the federal government will actively monitor these entities to ensure consumers are getting genuine, authentic GLP-1s, that consumers are making informed decisions about weight-loss drugs, and that consumers are not being deceived and duped in the frenzy over GLP-1s.

On July 8, 2025, the Eighth Circuit vacated the Federal Trade Commission’s (“FTC”) Negative Option Rule, also known as the Click-to-Cancel Rule, on procedural grounds. The Click-to-Cancel Rule, which provided a streamlined path for consumers to cancel subscription services in a few clicks of a mouse, was scheduled to take effect on July 14, 2025, but the Court found that the FTC had failed to follow mandatory procedural requirements.

Over the past several months, hundreds of businesses across California have been served with Notices of Violation (NOVs) of California’s Proposition 65 (“Prop 65”) for issuing thermal receipts at the register and using thermal labels and stickers in their stores. The targeted businesses include large and small retailers, restaurants, banks, gas stations, and grocers.

Section 230 of the Communications Decency Act of 1996 has been credited with “creating” the internet by immunizing websites and platforms from lawsuits arising from the content posted by third-party users. Specifically, an internet company is not liable for publishing or posting content drafted by another person under conventional common law tort theories such as defamation or slander, however loathsome, violent or otherwise hateful that content is.  At the same time, Section 230 also immunizes a website or platform that engages in good-faith moderation of content it deems to violate its terms of use/conditions or community standards. 

On April 21, 2025, the FTC filed an enforcement action against Uber alleging that Uber enrolled consumers in Uber One without proper consent, created substantial barriers to cancellation, and misrepresented the financial benefits of the subscription. The claims include violations of the FTC Act—which prohibits unfair and deceptive acts in commerce—and the Restore Online Shoppers’ Confidence Act (“ROSCA”)—which prohibits charging consumers for goods and services sold on the internet through a negative option (i.e., failing to cancel a subscription, unless the seller clearly discloses all material terms of the transaction before obtaining the consumer’s information and obtains the consumer’s expressed informed consent for the charges and provides simple mechanisms for the consumer to stop the recurring charges).

On April 14, 2025, ClassPass, a web-based company offering subscription services to third-party fitness classes, petitioned for rehearing en banc of the Ninth Circuit’s Chabolla v. ClassPass decision, which held that ClassPass’ users were not bound by the terms of ClassPass’ “sign-in wrap” agreement. The ruling has significant consequences for online companies using sign-in wrap agreements and for online contract formation and enforcement more generally. A sign-in wrap is a type of online agreement in which the agreement is hyperlinked on the website, but the user is not required to access, review, confirm an understanding, or otherwise affirmatively “assent” to be bound. If the Ninth Circuit does not grant ClassPass’ request and issue a new ruling in Chabolla, this case may signal the death knell for sign-in wraps, resulting in significant disruption, friction, and ultimately lower conversion for online companies who will be forced to redesign their sign-up flows to be click-wrap agreements (online agreements that require the user to affirmatively accept a company’s terms of use by clicking an assent box or button). Short of that, this decision increases business risk given that there are now conflicting opinions both within the Ninth Circuit and between the various Circuits.

On April 3, 2025, the United States Department of Justice’ Antitrust Division hosted a forum on “Big-Tech Censorship” in which key Trump Administration Officials announced their desire to reform, or entirely overhaul, Section 230 of the Communications Decency Act. In March 2025, we wrote about the Federal Trade Commission’s (FTC) inquiry into “tech censorship” and its associated request for public comments from those who “may have been harmed by technology platforms that limited their ability to share ideas or affiliations freely and openly.” That RFI remains open, and its deadline is May 21, 2025.

On February 20, 2025, the Federal Trade Commission launched an “inquiry” into “tech censorship” by calling for public comments from those who “may have been harmed by technology platforms that limited their ability to share ideas or affiliations freely and openly.” The deadline for comments is May 21, 2025.

On December 17, 2024, the Federal Trade Commission (“FTC”) and the Illinois Attorney General (“AG”) announced a $140 million settlement with Grubhub to resolve charges involving an array of allegedly unlawful and deceptive business practices. Even though the FTC’s proposed final rule on junk fees (also announced on December 17, 2024) is limited to hotels, live events, and short-term rentals, this settlement demonstrates that the FTC will use its broad enforcement powers to pursue companies imposing junk fees online, and that both federal and state consumer protection regulators will formulate 2025 enforcement priorities with junk fees and click-to-cancel in mind. Indeed, this $140 million settlement, of which Grubhub will pay $25 million based on its demonstrated inability to pay the full amount, is the first of its kind in that it is a joint action by the FTC and state regulators to pursue both junk fees and click-to-cancel violations.