DROPLETS

The European Commission has adopted new dominance guidance under Article 102 TFEU, according to this Skadden report. The firm describes it as targeting rebates, self-preferencing and digital platforms, and frames the move against long-running flux in Article 102 case law, including the economics-driven 2009 guidance adopted after what was seen as the rigidity of 1980s and 1990s jurisprudence.

For counsel, the significance is threefold. Any revision re-calibrates the risk calculus for pricing and loyalty rebates, discount structures and most-favoured-nation clauses embedded in ordinary EU distribution agreements. Self-preferencing is the contested doctrine at the centre of current Article 102 debate, so guidance-level treatment will shape how vertically integrated conduct is documented and defended. The report also signals continued emphasis on digital gatekeepers, linking dominance analysis to obligations under the Digital Markets Act.

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On October 2, 2026, the Centers for Medicare & Medicaid Services finalized the Global Benchmark for Efficient Drug Pricing (GLOBE) Model, a mandatory Medicare demonstration that assesses additional rebates on drugs payable under Part B. Because the model is mandatory rather than voluntary, covered manufacturers cannot decline participation, and rebate obligations flow through existing Part B payment mechanics rather than a voluntary contract structure.

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California Governor Gavin Newsom signed two bills on September 30, 2026 tightening state rules on employer use of AI in employment decisions.

SB 947, the "No Robo Bosses Act," applies to all California employers. It bars use of an automated decision system (ADS) to violate employment or civil rights law or to infer protected status under the Fair Employment and Housing Act. From July 1, 2027, an employer may not primarily rely on ADS output in a disciplinary or termination decision without human corroboration; uncorroborated or inaccurate output cannot be used. Employers must give a written, stand-alone notice with the decision and, on request, a meaningful, objective description of the employee's own data, anonymized as to third parties. Penalties reach $500 per violation plus punitive damages, fees and injunctive relief, and the burden of proof shifts to the employer once ADS use is shown. Spam filters, firewalls, antivirus tools and calculators are excluded from the definition.

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Per a Mayer Brown alert (the sole source in this cluster), the US Court of Appeals for the Second Circuit has held that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act does not merely sever an arbitration agreement as to a plaintiff's sexual harassment or assault claims — it invalidates the agreement for all claims raised in the same case. On that reading, a defendant confronted with a mixed complaint could be forced to litigate unrelated claims (wrongful discharge, wage, contract or statutory claims) in court, substantially rewriting the parties' dispute-resolution bargain after suit is filed. Second Circuit authority binds only New York, Connecticut and Vermont, and the breadth of the reasoning may draw en banc reconsideration, a certiorari petition or a circuit split; the alert does not indicate whether other circuits have adopted the same view. For clients, the near-term move is to audit employment and consumer arbitration clauses for hybrid-claim exposure and to confirm opt-out and severability design. Counsel should also track the opinion's actual scop

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On September 30, 2026, Senate EPW and ENR leaders introduced the Bipartisan American Affordability and Jobs Act of 2026 (S. 5653), a two-division permitting package spanning environmental and energy statutes, with floor consideration expected in November and uncertain House prospects.

Division A is the more consequential for environmental counsel: it narrows "major federal action," expands categorical exclusions and reliance on state, tribal and federal reviews, sets one-year EA and two-year EIS deadlines, and adds CEQ dispute resolution. Judicial review is rewritten around a 150-day statute of limitations, participation requirements, direct appellate review and remand-without-vacatur as the default remedy. Clean Water Act changes limit Section 401 to water quality, put a clear-and-convincing burden on denials, cut interstate gas and transmission certification to nine months, extend nationwide permits to ten years, and curb EPA's Section 404(c) veto. ESA consultations drop to 60 days, states may assume Section 7 work, and $150 million annually funds implementation.

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According to Alston & Bird, a federal court has blocked enforcement of New York's Climate Change Superfund Act, holding the statute is preempted by federal law and intrudes on the federal government's foreign affairs authority. The reporting indicates the decision is not the end of the matter and an appeal is anticipated; the specific court, procedural posture, and any stay pending appeal are not detailed in the source material.

Why sophisticated counsel should care: state fund-based climate statutes have been a primary vehicle for forcing industrial decarbonisation costs onto emitters in the near term, and they sit directly on the constitutional fault lines of federal preemption, the dormant Foreign Commerce Clause and the foreign affairs power. A ruling that a state cannot bind international finance or trade outcomes through a domestic superfund could narrow the design space not only for New York but for peer programmes in other states and for private climate-disclosure mandates that reference cross-border supply chains.

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On September 30, 2026, the U.S. District Court for the District of Columbia decided Doe v. PCAOB, No. 1:24-cv-780, granting the Public Company Accounting Oversight Board's cross-motion for summary judgment and denying the plaintiffs' cross-motion; the reported excerpt does not supply the reasoning, the parties' identity, or the specific constitutional provisions at issue, so the scope of the holding should be confirmed against the opinion itself.

The development matters because the PCAOB sits at the center of the securities-enforcement ecosystem for public companies and their audit committees. Its authority to litigate disciplinary proceedings against registered accounting firms has been contested structurally since the Supreme Court's 2021 decision in Free Enterprise Fund v. PCAOB, which invalidated the former "unitary" removal provision and prompted follow-on challenges. A merits win of this kind reduces uncertainty about whether PCAOB disciplinary actions can proceed on a stable constitutional footing.

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Per a DLA Piper client alert, on September 21, 2026 Texas Governor Greg Abbott directed the Texas Commission on Environmental Quality to stop issuing environmental permits sought by data centers until the Electric Reliability Council of Texas completes an audit. The reported trigger is unresolved: Texas has absorbed large volumes of new large-load requests from data centers and AI campuses, and grid reliability questions — interconnection queues, reserve margins, and whether promised load is real — have moved from industry forecasting into state executive concern.

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On September 17, 2026, the Securities and Exchange Commission announced a five-year "Innovation Exemption" intended to facilitate the trading of tokenized versions of stocks listed on the National Market System. Reporting from Perkins Coie frames the release as a compliance question for public companies: issuers now face a decision about whether and how tokenized representations of their shares should be offered, disclosed and governed alongside their conventional listings.

Sophisticated capital markets counsel will care because the exemption touches market structure rather than crypto policy — it sits at the intersection of listed-issuer disclosure obligations, exchange and clearing arrangements, and custody of a security that exists in two forms. Client advisory questions likely include investor-protection disclosure, how token holders exercise voting and economic rights, and whether transfer restrictions or transfer-agent mechanics change. Fintech and digital-asset teams are equally in scope for platform and brokerage clients.

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Mayer Brown reports that the EU General Court has upheld the European Commission's "new template" for merger control, in proceedings captioned Booking/Etraveli. The judgment text is not in the material available here, so the reasoning, the case reference, and whether the ruling distinguishes substantive jurisdiction from filing formality cannot be verified from this source; pull the operative part before relying on any detail.

What counsel should take from the headline is that the template survives as a procedural instrument. A streamlined notification format for qualifying transactions has been challenged as inconsistent with the EU merger regulation's filing requirements, and a General Court decision rejecting that challenge removes one obstacle to continued use. On the face of the title, the ruling went against the parties pressing the procedural objection, which also makes the form less likely to become a delaying tactic in clearance.

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California Governor Gavin Newsom has signed more than twenty employment-related bills from the 2025-26 session, most taking effect January 1, 2027, and vetoed AB 1940, which would have added menopause and related conditions to the Fair Employment and Housing Act's definition of sex.

For major employers the AI-adjacent items are the heaviest lift. AB 1883 bars AI-driven surveillance incorporating facial, gait or emotion recognition or collecting neural data, and bars using surveillance to infer protected characteristics, enforced by the labor commissioner with a private right of action. SB 947, the successor to SB 7 (vetoed in 2025), bars using an automated decision system as the sole basis for discipline or termination absent independent human corroboration, with ADS restrictions operative July 1, 2027. SB 951 amends Cal/WARN to require notices flagging AI- or automation-caused displacement and identifying the affected job functions and system. AB 1331 restricts bathroom surveillance and mandatory tracking devices, with penalties up to $500 per violation.

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On September 30, 2026, California Governor Gavin Newsom signed Senate Bill 690, which narrows—but does not extinguish—the growing body of private claims challenging use of website tracking technologies under the state's Invasion of Privacy Act. The bill addresses the "pen register" theory of CIPA liability, under which plaintiffs have treated data captured by analytics and advertising pixels as a private wire communication intercepted in transit.

For product counsel, the practical consequence is a change in exposure calculus rather than a reprieve. Businesses deploying pixels, session-replay tools, SDKs, and tag managers across consumer-facing properties need a current view of which features remain actionable under the amended statute and which theories are now foreclosed, and how the change interacts with the still-pending cases rather than resolving them. Class action plaintiffs' firms are expected to test the boundaries of the amendment, so early appellate construction may arrive before the case set clears.

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On October 1, the U.S. Department of Justice's National Fraud Enforcement Division issued a memorandum describing its approach to enforcing corporate fraud, according to a Hogan Lovells alert. The memo builds on DOJ's earlier public announcements establishing the division, and is the first indication of how that unit intends to operate day to day.

Why sophisticated counsel should care: a dedicated fraud division signals an institutional priority inside DOJ. For major-firm clients, that can affect the first-response playbook — who is contacted, whether a company is treated as a target or a subject, how declination decisions are handled, and the leverage of cooperation credit and remediation efforts in resolution negotiations. It also raises the stakes for internal investigations, since the timing and posture of a self-report may now be assessed against a division with a unified enforcement agenda.

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California Governor Gavin Newsom signed seven laws on September 21, 2026 that collectively govern the approval, power supply, and water use of new data centers in the state. According to the available reporting, most of the measures take effect January 1, 2027, though the excerpt does not specify the effective dates of the remainder or the specific provisions of each bill; the underlying statutory text should be reviewed before advising clients.

The cluster matters to major-firm clients well beyond California. Hyperscalers, colocation operators, real estate developers, and utilities all face overlapping exposure: siting and permitting rules affect development timelines, energy procurement shapes project economics and power purchase agreements, and water constraints intersect with state and local environmental review and, in some cases, municipal and county restrictions already being considered.

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Arnold & Porter's BioSlice blog reports that Italy's Garante per Pubblica Autorità per la Garante per la protezione dei dati personali has imposed a €7 million fine on IQVIA in an enforcement action about pseudonymised health data, with the firm's commentary framed around the line between "pseudonymised" and "anonymous." Only the headline-level summary was available for this cluster, so the specific conduct, processing activities, legal provisions and procedural posture are not confirmed here and should be verified against the Garante's order before being relied on.

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Per a law firm alert, on September 30, 2026 the SEC proposed amendments to Rule 205-3 of the Investment Advisers Act of 1940, the exemption permitting advisers to receive performance-based compensation despite the Advisers Act's general prohibition. The excerpt available here does not detail the qualifying conditions, covered entities, or transition mechanics, so the precise scope should be confirmed against the Federal Register text.

Why counsel should care: fee eligibility shapes fund economics. The Rule 205-3 qualifying fund condition is a gating item in private fund formation, side letters, and allocation waterfalls, and incentive fee terms are routinely negotiated with institutional allocators to multi-strategy, credit, and secondaries vehicles. A widened exemption could change which mandates may charge incentive fees and would touch fund documents, LPAC discussions, distribution agreements, and marketing restrictions.

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In Enka Renewables, LLC v. Republic of Georgia, No. 25-cv-00125 (APM), the U.S. District Court for the District of Columbia reportedly confirmed a foreign arbitral award of approximately $350 million in favor of the U.S. investor. Separately, the court appears to have enforced the parties' contractual post-judgment interest provision in place of the federal statutory rate — a recurring battleground in energy and infrastructure arbitrations involving state counterparties, where the choice of rate can move the recovery by millions over the life of a judgment.

Two points merit attention. First, sovereign immunity and arbitration-agreement enforcement are recurring themes in U.S. courts' treatment of state-owned or state-invested foreign entities, and the procedural path to confirmation matters for parallel enforcement elsewhere. Second, the interest ruling signals that counsel drafting award-enforcement clauses should expressly specify the post-judgment rate and its compounding rather than relying on statutory defaults a confirming court may displace.

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In a nationwide memorandum issued October 1, 2026, DOJ set out enforcement priorities for corporate fraud prosecutors now operating within the newly created National Fraud Enforcement Division. The memo pairs those priorities with ten "must weigh" charging factors, effectively a prosecutorial checklist that defense counsel should expect to see argued in charging decisions and negotiated resolutions. Both the priorities and the factors are new public commitments rather than binding rules, so their practical effect will be gauged case by case as prosecutors apply them, and the memorandum's legal weight in any individual matter remains untested. Defense teams at major firms should note that the framework signals a more uniform, centrally directed approach to corporate fraud charging decisions across the country, which may reduce divergence between districts. The concrete next developments to watch are early enforcement actions under the new division, whether the memo is echoed in agency guidance or charging documents, and any litigation testing how the "must weigh" factors are applied.

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California has enacted the Competition and Opportunity in Markets for a Prosperous, Equitable, and Transparent Economy Act, adding to the Cartwright Act express prohibitions on monopolization and monopsonization attributable to a single firm rather than to agreement or monopoly power held through exclusionary conduct. The change matters because California has long been the most active state venue for antitrust private enforcement; a statutory single-firm conduct bar lets plaintiffs plead a theory that, under federal monopolization standards, generally requires proof of exclusionary behavior, monopoly power, and anticompetitive intent.

The reported excerpt states the new provision is limited in some respect, but the truncation does not disclose the scope, the elements of the new offenses, or whether the statute carries its own private right of action or is instead a legislative declaration construing the Cartwright Act. Practitioners should confirm the operative text, effective date, and any carve-outs before advising clients.

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California Gov. Gavin Newsom signed Assembly Bill 1776, the COMPETE Act, on Sept. 30 (year not stated in the source item), materially expanding the state's Cartwright Act. According to Polsinelli's summary, the law increases the exposure of companies holding market power, signalling a broader set of conduct that California enforcers and private plaintiffs may now reach.

The significance for major-firm clients is structural rather than episodic. California has historically been the most active state venue for antitrust damages claims, with parallel public enforcement through the Attorney General. A statute that lowers the bar for challenging firms with durable market power could expand the universe of viable claims, reshape the probability of exclusionary-conduct and monopolisation theories, and raise settlement value in cases touching California sales or conduct. Counsel should reassess how conduct in and affecting California is documented, and should confirm the bill's operative date, any phased implementation, and which market-power threshold the legislature adopted.

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Reported from a single law-firm alert, the California Supreme Court issued a decision in the consolidated Gilead Tenofovir Cases (2026 WL 2223748, dated Aug. 3, 2026) that reversed the Court of Appeal and rejected a proposed duty-to-innovate theory as a basis for product liability. The theory at issue would have supported liability, beyond a failure to warn, where a manufacturer continued to market a drug without having developed a non-injurious alternative design.

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California Governor Gavin Newsom has signed Senate Bill 574, described by Seyfarth Shaw as a first-in-the-nation measure that would place clear statutory limits on attorneys' use of artificial intelligence. The practical significance is that California has moved AI-use obligations for lawyers from the professional-conduct and rules-of-court layer into codified statute, giving opposing counsel a legislative hook that did not previously exist.

Why sophisticated counsel should care: the firm headlines this as opening a "new era" of AI regulation, and firms with California-licensed lawyers, California-facing matters, or practices built on generative tooling all face the same exposure question. A statutory framing also tends to carry more force — cure provisions, duty-of-care angles, and potential malpractice or disciplinary theories — than conduct rules alone. Clients in litigation-heavy or regulated industries should be able to explain how AI was used in their matter and who reviewed the output.

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In KalshiEX LLC v. Schuler, Nos. 26-3196/5235, 2026 WL 2884087 (6th Cir. Sept. 25, 2026), the Sixth Circuit concluded that the prediction-market operator had not carried its burden of showing its sports-event contracts are swaps over commodity futures, and therefore that CFTC exclusive jurisdiction did not preempt the state sports-wagering laws Kalshi sought to avoid. Reported details in the available source are limited to that holding, so the panel's full reasoning, any partial-preemption analysis, and any remand instructions are not confirmed here.

The ruling matters well beyond one venue. Kalshi has been the leading test case for whether a federally listed event contract is a swap subject to CFTC exclusive jurisdiction — the pivotal question for sports books, app operators, media groups launching micro-betting products, and the derivatives venues that list competing contracts. A narrow win for Kalshi that nonetheless clears state regulation changes the go-to-market calculus for a product category that dozens of states have expressly authorized or restricted.

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According to a Ballard Spahr analysis, the U.S. Court of Appeals for the Third Circuit last week issued the first federal appellate decision on whether using copyrighted material to train an AI system qualifies as fair use, while leaving separate questions about generative AI output unresolved.

The significance reaches well beyond the two parties. Fair use remains the doctrinal basis for training-data disputes across the technology, media and publishing sectors, and an appellate-level treatment of the four-factor framework gives AI developers, content licensors and platforms a federal benchmark they previously lacked. Companies with both exposure and revenue models touching AI ingestion should reassess how they plead and defend training-related claims, including which authorities they lead with.

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On September 30, 2026, the Centers for Medicare & Medicaid Services finalized its rule implementing the Global Benchmark for Efficient Drug Pricing (GLOBE), a mandatory Most Favored Nation (MFN) drug pricing model for Medicare Part B. Until now, MFN pricing has existed only in voluntary demonstration models; a final rule converts the concept into a binding coverage and payment framework for Part B drugs, benchmarking U.S. prices against prices in comparable countries.

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Per a Latham & Watkins client alert carried on JD Supra, DOJ's National Fraud Enforcement Division has confirmed its enforcement priorities targeting corporate fraud against US taxpayers and set out specific factors it will weigh in charging decisions. The reporting characterizes the posture as "aggressive," but the alert available here does not enumerate the individual factors, so counsel should treat the specifics as unverified pending the agency's own announcement and any accompanying documents.

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On October 5, 2026, FTC Chairman Andrew Ferguson sent warning letters to twenty-four of the largest US health systems, reminding them that Section 5 of the FTC Act requires timely, accurate and transparent compliance with CMS Hospital Price Transparency obligations. The campaign signals that prices that are inaccurate, stale, or inconsistent across a system could be characterised as deceptive conduct — a theory the FTC has not previously pressed in this area with any visible success, and one that operates whether or not CMS has already imposed a penalty. Large systems should note that a warning letter is typically a precursor to a complaint, investigation or civil penalty demand, and that Section 5 reaches conduct CMS does not police. For counsel, the immediate questions are how price files are generated, by whom, and who attests to their accuracy. Worth watching: whether any named system responds publicly, whether the FTC brings a first enforcement action on this theory, and how systems reconcile state all-payer transparency statutes that may impose stricter or different standards t

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On October 1, 2026, the DOJ's National Fraud Enforcement Division issued Directive 26-12, titled "Corporate Enforcement in the Fight Against Fraud," according to a DLA Piper client alert published on JD Supra. The report describes the document as instructing federal prosecutors how to approach corporate enforcement in fraud matters. Our review is limited to that single secondary summary; the directive's text, specific charging and declination criteria, and any carve-outs for cooperation credit have not been independently confirmed here, and readers should consult the primary document before relying on any operational assumption.

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