Insights

On September 4, 2026, the IRS published a notice of proposed rulemaking (NPRM) titled “Racial Nondiscrimination in Private Schools” (REG-119986-25). The proposed rule would extend the prohibition against racial discrimination in private schools to policies and practices that are intended to serve “remedial or diversity-related objectives,” such as those commonly associated with diversity, equity, and inclusion (DEI) initiatives. Under the proposed rule, any private primary or secondary school, college, professional or trade school, or university, would lose its tax-exempt status if it adopts, maintains, or enforces any policy or practice that considers race, color, or national or ethnic origin in the administration of any admissions policy, scholarship or loan program, athletic program, or other school-administered program. Comments are due November 3, 2026, and, if finalized, the proposed rule would go into effect on May 31, 2027. 

On August 20, 2026, the College Sports Commission (CSC) released a memorandum outlining how its Department of Investigations (DOI) is approaching enforcement of name, image, and likeness (NIL); revenue sharing; and roster limit rules. The memo signals that the CSC’s enforcement apparatus is fully operational and that Division I institutions should prepare for direct investigative engagement.

In our previous client alert, we addressed how algorithms and platform features that rely on user generated speech might not receive Section 230 protections because those features may not be considered platform user content.  In these instances, the platform might not carry user generated water through the pipe, but adds its own to the mixture.  At the same time, if it is true that there is less Section 230 protection, these same elements should then imbue the content with First Amendment protections as the expressive content of the platform.

On August 19, 2026, the Federal Trade Commission (FTC) announced a proposed Enforcement Policy Statement on personalized pricing — the practice of companies using consumers’ personal data to set individualized prices, discounts, coupons, or other incentives. The proposed statement, which is open for public comment for 30 days following publication in the Federal Register, marks a major step up in the FTC’s focus on data-driven pricing strategies and puts businesses across industries on notice that undisclosed or inadequately disclosed personalized pricing will not be tolerated. Importantly, while the proposed statement is not a binding legal requirement and does not create new legal obligations, it serves as an enforcement warning that the FTC is prepared to use its existing enforcement authority under Section 5 of the FTC Act (Section 5) and is also a potential harbinger of rulemaking. Businesses that engage in — or are considering — personalized pricing should carefully assess their disclosure practices and data collection procedures against the standards articulated in this statement.

On August 13, 2026, the Centers for Medicare and Medicaid Services (CMS) published its final rule banning the use of federal funds — through Medicaid and the Children’s Health Insurance Program (CHIP) — to pay for gender-affirming care for children and youth. The final rule takes effect October 13, 2026 (“Prohibition on Federal Medicaid and Children's Health Insurance Program Funding for Sex-Rejecting Procedures Furnished to Children”). While CMS finalized several key elements of its late-2025 proposed rule (Client Alert December 24, 2025), the proposed Medicare hospital Condition of Participation rule remains in proposed form.

On July 20, 2026, New Jersey Governor Mikie Sherrill signed the Forbidding the Algorithmic Inflation of Rent (FAIR) Act into law, making New Jersey the fourth state to regulate algorithmic rent-setting practices. Three days later, on July 23, 2026, Governor Sherrill signed the Fair Price Protection Act, which targets “surveillance pricing”—the practice of using or collecting personal data about a user and using an algorithm or artificial intelligence to charge different consumers different prices for the same products. Together, these laws represent a significant expansion of New Jersey's consumer protection framework in the algorithmic pricing context.

New York is set to become the first state in the nation to restrict algorithmically-driven “addictive” social media features for users under 18. On July 29, 2026, the State published the final rules implementing the Stop Addictive Feeds Exploitation (SAFE) for Kids Act, which takes effect January 25, 2027.

Section 230 of the Communications Decency Act (“Section 230”) protects online platforms from liability for user-generated speech. Based on the premise that platforms generally do not create original content but instead curate their users’ own speech, Section 230’s protections have historically applied to a platform’s algorithmically assembled, selected or sequenced content; algorithms or features that amplified or directed user generated speech to particular users were generally protected. Indeed, the old rule of thumb was the more a platform used algorithms or automation, the more likely user generated speech remained user generated speech. GenAI has the potential to change that calculus. A platform that ingests user generated content and publishes a transformed output, can blur Section 230’s line between publication and creation. The central question is whether Section 230 protects GenAI, which analyzes, but does not alter, user-created content to produce an outcome, and its corresponding outputs.

On June 18, 2026, the California Department of Toxic Substances Control (DTSC) added microplastics to the list of Candidate Chemicals maintained under the state’s Safer Consumer Products (SCP) regulations.  The listing of microplastics, which becomes effective on October 1, 2026, is the first step in the SCP regulatory process, which could lead to restrictions on products that contain or release microplastics. 

A recent enforcement action led by Minnesota Attorney General Keith Ellison along with a bipartisan coalition of state attorneys general signals an accelerating and coordinated crackdown on competitively sensitive information-sharing arrangements.

On Wednesday, June 3, 2026, the Department of Health and Human Services (HHS) published an interim final rule with comment (IFC) instructing all state Medicaid agencies to incorporate “community engagement” as an eligibility condition for program participation by no later than January 1, 2027. The rule (Medicaid Program; Community Engagement Requirement for Certain Individuals) does not impose affirmative operational obligations for Medicaid managed care plans, as it focuses primarily on equipping the states to administer the community engagement requirement. However, it does establish a few specific guardrails to govern the role managed care organizations, prepaid inpatient health plans, and prepaid ambulatory health plans may — and may not — play in that administration.

On May 27, 2026, the California State Assembly advanced AB 2564, which would prohibit surveillance pricing by retailers. Assemblymember Christopher Ward originally introduced AB 2564 on February 20, 2026, to “ensure that people are not being unfairly charged higher prices due to their actual or perceived characteristics.”

On April 30, 2026, the U.S. District Court for the Northern District of California issued a significant ruling in an insurance coverage dispute between a commercial general liability insurer and its policyholder. The decision addresses several critical issues in insurance law, including the scope and continuity of the duty to defend and the standard for insurer reimbursement of defense costs in mixed-claim actions. The court ruled largely in favor of the insured, SVO Building One, LLC ("SVO"), and the matter now heads toward settlement or trial on SVO's remaining counterclaims.

Texas Attorney General (AG) Ken Paxton has embarked on an aggressive campaign of regulation through enforcement against some of the world’s largest technology companies.

Consistent with recent FDA initiatives directed at leveraging AI technologies and improving early-phase clinical trial conduct, the FDA has issued a Request for Information (RFI) for input on a proposed AI-enabled optimization pilot program for early-phase clinical trials. The issues for which FDA is requesting information fall into two categories:  (A) Pilot program design and implementation and (B) Program evaluation metrics and success criteria.

Employers should be aware of several California laws that were recently enacted or went into effect. These laws expand the scope of care recipients that can trigger paid family leave obligations, extend the statute of limitation for survivors of sexual assault, strengthen protections for tipped workers’ wages, increase minimum wage statewide, provide collective bargaining and organization rights to rideshare workers, and prohibit “stay-or-pay” clauses in employment contracts. 

On April 6, 2026, the U.S. Environmental Protection Agency (EPA) published the draft Sixth Contaminant Candidate List (CCL 6), marking a significant step in the agency's effort to identify and evaluate unregulated contaminants in public water systems. The CCL 6 includes 75 chemicals, four chemical groups (disinfection byproducts (DBP), microplastics, per- and polyfluoroalkyl substances (PFAS), and pharmaceuticals), and nine microbes.

An Alabama mother filed suit on April 8, 2026, in the U.S. District Court for the Northern District of California against Roblox and Fortnite developer Epic Games, alleging that they design their platforms and games to be addictive through random reward tactics, especially targeting minors. The case is Turner et al. v. Epic Games Inc. et al., Case No. 3:26-cv-02975.

On April 21, 2026, the U.S. Department of Labor (DOL) issued a notice of proposed rulemaking (NPRM) outlining a new standard for “joint employment” — under which separate entities will be found jointly liable for the other’s violations — under the Federal Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Seasonal Agricultural Worker Protection Act (MPSA). The Proposed Rule purports to standardize the definition of “joint employment” across all three laws to create “clarity” and “uniformity” for employers and employees alike.

The landscape of counterfeiting litigation is shifting in ways that place online marketplace operators at the center of disputes from two directions. Brand owners are escalating efforts to hold platforms liable for counterfeit goods sold through their sites, while some marketplace operators have begun joining brand owners as co-plaintiffs to pursue counterfeiters directly. This dual role has significant implications for how platforms manage their legal exposure and their relationships with brand owners.