Arthur Souza Rodrigues

DROPLETS

AmLaw 100 Legal Intelligence — Distilled
Wednesday, November 4, 202623 featured49 also noted36 firms13 practice areasgrade 3–5
Quick Scan — Why It Matters
McGuireWoodsTax+ Expand
Two Circuits Narrow LP Exception to Self-Employment Tax for Fund Sponsors

Recent rulings in two federal courts of appeals narrow the limited partner exception to self-employment tax for fund sponsors, management companies and independent sponsors, pushing private fund counsel to re-test existing structures.

Two federal courts of appeals have issued recent decisions that narrow the availability of the limited partner exception to the self-employment tax, a federal tax doctrine that permits partners who are not materially participating in the trade or business to be excluded from self-employment tax. As reported in a McGuireWoods alert, the rulings represent a meaningful shift for fund sponsors, management companies and independent sponsors that have relied on, or considered relying on, the exception.

Why sophisticated counsel should care: self-employment tax exposure arises at the individual sponsor or GP/manager level, so a narrowing of the exception can change the after-tax economics of a sponsor's own vehicle even where fund-level terms, management fees and carried interest are untouched. Independent sponsors and management-company structures built on the exception are the most exposed.

…

Read the full dispatch →
Dorsey & WhitneyEnvironment / ESG / Climate+ Expand
EPA Proposes Overhaul of Federal Methane Standards for Oil and Gas

EPA's proposed sweeping revisions to federal methane standards for the oil and natural gas sector would again reset compliance planning for producers, underscoring how quickly the rules have swung with successive administrations.

EPA has proposed sweeping revisions to federal methane standards governing the oil and natural gas sector, according to a Dorsey & Whitney client alert published in November 2026. The firm's analysis frames the action as the latest swing in a decade of regulatory "ping-pong," with successive administrations alternately expanding, narrowing, and rescinded methane rules — a pattern that gives clients and counsel limited assurance that any single compliance baseline will endure.

Why sophisticated clients care: methane requirements reach drilling and production operations, and the final design of the proposal could drive equipment, monitoring, verification, and operating-cost decisions across multiple basins rather than a single asset. Because the available report characterizes the action only as a proposal, its specific operative requirements, timelines, and cost impacts are not established on this evidence, and the rulemaking remains subject to comment, revision, and possible reversal under a later administration.

…

Read the full dispatch →
Foley & LardnerCorporate / M&A+ Expand
Delaware Chancery Enjoins Cloudflare Founder-Control Recapitalization

Delaware Chancery enjoined Cloudflare's founder-control recapitalization, finding the special committee likely failed Section 144's good-faith test and narrowing the statute's injunction exclusion.

Per a Foley & Lardner alert, the Delaware Court of Chancery preliminarily enjoined Cloudflare's multi-step recapitalization, which would have let co-founders Matthew Prince and Michelle Zatlyn sell economic interests without losing voting control, holding that plaintiffs showed a reasonable probability that the special committee did not satisfy Section 144's "in good faith and without gross negligence" condition. Vice Chancellor Laster rejected the other statutory arguments: the Section 144(d)(6) injunction exclusion does not reach conflicted controller transactions, board determinations of a committee member's disinterest are measured by gross negligence rather than entire fairness, and the heightened presumption of disinterest for listed-company directors meeting stock-exchange independence rules applies beyond the pleadings stage, requiring clear and convincing evidence to rebut. Because the recapitalization contained no price term and only roughly 15.6% to 17.7% of unaffiliated voting power supported the voted components (with Glass Lewis and ISS opposing), the court also found a

…

Read the full dispatch →
Foley & LardnerTax+ Expand
Circuit Courts Split on Limited Partner Self-Employment Tax Test

The Fifth and Second Circuits both held that state-law limited partner status alone does not qualify for the Section 1402(a)(13) self-employment tax exception, but they adopted different tests for when management activity defeats it.

In August 2026 the Fifth Circuit withdrew its original Sirius Solutions opinion and substituted K Alain, L.L.P. v. Commissioner, 184 F.4th 766, holding that a "limited partner" for Section 1402(a)(13) purposes is one who "plays no significant role in managing or running a business," rejecting the Tax Court's detailed functional analysis in favor of a broader no-significant-management-control test that tolerates some participation short of control. In September the Second Circuit affirmed the Tax Court in Soroban Capital Partners LP v. Commissioner, holding that state-law limited partner designation is not sufficient and that fund principals who worked full time, managed portfolio investments, sat on governing committees and participated in hiring were not "passive investors," so their distributive shares were subject to self-employment tax. The Second Circuit said there was "little daylight" between the two definitions, but the Fifth Circuit expressly rejected the Tax Court's approach, leaving the operative threshold unsettled. Fund partners, family offices and individual investors s

…

Read the full dispatch →
K&L GatesSanctions / Export Controls+ Expand
Treasury Proposes Sweeping Expansion of Outbound Investment Bans

Treasury's October 2026 NPRM would bar most US investments in Chinese AI, biotech, hypersonic and quantum developers, drop notification tiers and tighten fund/LP diligence, with comments due 7 December 2026.

Treasury's 22 October 2026 NPRM (91 Fed. Reg. 67396) would implement the COINS Act, replacing 31 C.F.R. Part 850 with a new Part 851 and extending the outbound investment program to Cuba, Iran, North Korea and Russia. Most consequentially, it would drop the notification-only tier for AI, relabelled "super intelligence" under Executive Order 14434, so covered transactions in any SI developer would be prohibited regardless of computing thresholds — a choice Treasury made although the statute left the parameters open, and one likely to draw heavy comment. Biotechnology, including small molecules, vaccines, cell and gene therapies and monoclonal antibodies, would also become prohibited technology with no notification tier, potentially reaching much of China's pharma and life-sciences tools sector; licensing and procurement contracts generally stay outside, while co-development and joint ventures need structure-specific analysis. For asset managers, public securities exceptions survive, the BDC exception is dropped, LP commitments above $2 million need binding assurances covering both not

…

Read the full dispatch →
LittlerEmployment / Labor+ Expand
Ninth Circuit Blocks California's Captive Audience Ban

The Ninth Circuit affirmed a preliminary injunction against California SB 399, holding the captive-audience statute content- and speaker-based and presumptively unconstitutional, in a roundup also covering COVID and Title VII rulings.

The October appellate roundup from Littler reports four federal circuit decisions. Most consequential is California Chamber of Commerce v. Bonta (9th Cir. Oct. 29, 2026), in which the Ninth Circuit affirmed a preliminary injunction blocking enforcement of California SB 399, the law penalizing employers for adverse action against employees who decline employer-sponsored meetings on religious or political topics, a category that includes labor organizations. The panel read the statute as reaching speech rather than mere attendance, treated it as content-based and speaker-based and presumptively unconstitutional, and held the state had not shown it narrowly tailored to serve a compelling interest. Counsel advising California employers on mandatory captive-audience meetings should reassess meeting scripts, notice-and-consent language and attendance policies while certification is pending. The roundup also covers MacDonald v. Oregon Health & Science University (9th Cir. Oct. 2, 2026), affirming dismissal of free-exercise and Title VII failure-to-accommodate claims brought by a healthcare

…

Read the full dispatch →
Husch BlackwellPharma / Biotech+ Expand
California Supreme Court rejects duty to innovate in Gilead Tenofovir cases

In Gilead Tenofovir Cases, 20 Cal. 5th 390 (2026), the California Supreme Court reportedly held a manufacturer cannot be liable for not developing a safer alternative sooner when the product sold is not defective.

The California Supreme Court, in Gilead Tenofovir Cases, 20 Cal. 5th 390 (2026), rejected the proposition that a pharmaceutical manufacturer may be liable for failing to bring an allegedly safer drug to market sooner when the product it already sells is not defective. Per a Husch Blackwell client alert published on JD Supra on 2 November 2026, the court declined to impose either a duty to innovate or an obligation to accelerate development of alternatives to non-defective products.

…

Read the full dispatch →
McDermott Will & EmeryHealthcare+ Expand
ONC's HTI-5 Final Rule Cuts Health IT Certification Criteria

HHS's health IT certification final rule, published October 28, 2026, trims certification requirements and steers interoperability toward FHIR, affecting EHR vendors, health systems and providers' attestations.

On October 28, 2026, HHS's Office of the National Coordinator for Health Information Technology published the Health Data, Technology, and Interoperability: ONC Certification Criteria Updates (HTI-5) final rule in the Federal Register. Per a McDermott Will & Emery summary, the rule trims health IT certification requirements and sets a FHIR-forward course for interoperability.

Why it matters: certification criteria decide which EHRs and health IT modules are federally certified, driving vendor roadmaps, health system procurement specifications, and federal programs and attestations tied to certified software. Narrower criteria should reduce compliance cost and speed product releases, while the interoperability direction raises expectations for vendors slow to adopt FHIR-based APIs. Providers need to know whether narrower criteria affect their certified deployments, attestations, and vendor contracts.

…

Read the full dispatch →
BakerHostetlerConsumer Protection+ Expand
FTC 6(b) Orders Demand Personalized Pricing Data from Nine Firms

The FTC's October 28 Section 6(b) orders compel nine airline, ride-sharing, delivery and retail companies to show how personal data drives prices and worker pay, with responses due in 45 days.

On October 28, 2026, the FTC issued Section 6(b) orders to nine companies across the airline, ride-sharing, delivery and retail industries, directing each to document how personal data feeds pricing, job-assignment and worker-compensation decisions, with 45 days from receipt to respond. The Special Order seeks pricing methodologies, the personal-information inputs used, the tools and software involved, how outputs affect outcomes, circumstances of human override, A/B testing, and disclosures to consumers and workers. The FTC has not explained why these companies were selected, and inclusion in the study is not an allegation of wrongdoing. The orders follow the agency's August proposed policy statement warning that undisclosed use of personal data to set prices may be unfair or deceptive, and arrive alongside new state restrictions in New Jersey, Connecticut and Maryland and New York's algorithmic-pricing disclosure mandate. Target, Instacart and JetBlue, said to be among the recipients, already face scrutiny, including a putative JetBlue class action alleging willingness-to-pay prici

…

Read the full dispatch →
Morrison & FoersterWhite Collar / Investigations+ Expand
DOJ NSD Announces First 'Near-Miss' Non-Prosecution Agreement

The National Security Division and EDNC announced the first 'near-miss' non-prosecution agreement under DOJ's revised corporate enforcement policy, turning that new policy language into an operative precedent.

On October 27, 2026, DOJ's National Security Division and the U.S. Attorney's Office for the Eastern District of North Carolina announced a non-prosecution agreement (NPA) with a corporate entity, described as the first "near-miss" NPA under DOJ's revised corporate enforcement policy. The available report excerpt does not identify the counterparty, the underlying conduct, or the NPA's terms, so the specific factual predicates and any export-control or sanctions nexus remain unconfirmed here.

…

Read the full dispatch →
Husch BlackwellHealthcare+ Expand
DOJ, HHS Launch Six-Month Healthcare FCA Self-Disclosure Pilot

The Civil Division and HHS opened a six-month False Claims Act self-disclosure pilot for healthcare providers, creating a new channel to report suspected overpayments — with terms and open questions still to resolve.

On October 22, 2026, the Department of Justice Civil Division and the Department of Health and Human Services announced a six-month Healthcare False Claims Act Self-Disclosure Pilot Program. The pilot opens a channel for eligible healthcare providers to self-report suspected False Claims Act violations to both agencies, and the source reporting walks through the program's terms and limits alongside questions it leaves unresolved.

Why sophisticated counsel should care: the FCA carries per-claim civil penalties, so provider clients — health systems, hospitals, physicians, and contractors billing government programs — face a recurring sequencing decision between investigating quietly and disclosing early. A dedicated DOJ-HHS channel could shift that calculus, and any resulting enforcement posture will be shaped by how the agencies treat disclosures made under it.

…

Read the full dispatch →
Holland & KnightIP / Patent+ Expand
Delaware court splits patent-eligibility ruling in TQ Delta v. DISH

Judge Gregory Williams of the District of Delaware granted in part and denied in part DISH Network's Section 101 summary judgment motion in TQ Delta, LLC v. DISH Network Corp. (No. 15-614-GBW), opinion issued October 19, 2026.

On October 19, 2026, Judge Gregory Williams of the U.S. District Court for the District of Delaware granted in part and denied in part a motion for summary judgment under 35 U.S.C. § 101 in TQ Delta, LLC v. DISH Network Corp., No. 15-614-GBW. The material reviewed here is a single law-firm alert; it does not identify which claims or claim limitations were held eligible or ineligible, and the slip opinion itself is not in evidence, so the precise scope of the ruling should be confirmed against the opinion before it is relied on. At that level of generality, the development still matters to sophisticated patent counsel. Eligibility screening under § 101 is one of the most consequential early-stage levers in multiparty patent disputes, and a mixed ruling ordinarily keeps the case alive and pushes it toward claim construction, validity, and infringement rather than ending it on eligibility grounds alone. Clients on both sides of § 101 motions should track the resulting case-management schedule, the start of any claim-construction phase, and any notice of appeal, and should compare the co

…

Read the full dispatch →
McDermott Will & EmeryFDA / Life Sciences Regulatory+ Expand
HHS grants enforcement discretion on six compounded peptides pending Bulks List

HHS said on October 28, 2026 it will not enforce against pharmacies, federal facilities and physicians compounding six peptides while FDA works on its Bulks List rulemaking.

On October 28, 2026, the U.S. Department of Health and Human Services issued an interim policy stating it does not intend to take enforcement action against state-licensed pharmacies, federal facilities, or licensed physicians that compound a specified set of six peptides, while FDA proceeds with rulemaking on the compounding "Bulks List" under the federal drug compounding framework. The excerpt does not identify the six peptides or the precise conditions attached to the non-enforcement stance, so the scope of the safe harbor should be confirmed against the full policy text and any accompanying guidance.

Why sophisticated counsel should care: compounding enforcement posture is a recurring source of risk for telehealth and anti-aging peptide providers, 503A and 503B outsourcing facilities, and hospitals or clinics that prepare sterile and nonsterile preparations. An interim enforcement carve-out can effectively legitimize product lines that remain legally unsettled, while also creating compliance and truthful-marketing exposure where a given product falls outside the carve-out.

…

Read the full dispatch →
Goodwin ProcterFinancial Regulation+ Expand
OCC Report Targets Large-Bank "Debanking" Practices

The OCC's October 2026 report on large-bank "debanking" raises fresh regulatory and client-relationship questions for banks, fintechs and corporates that depend on bank relationships.

The Office of the Comptroller of the Currency released a report titled "Guaranteeing Fair Banking for All Americans" on October 14, 2026, drawing on a supervisory review the agency began in September 2025 of the activities of the then nine largest U.S. banks. The subject is the phenomenon firms have labelled "debanking" — the withdrawal of banking relationships or services from businesses and consumers — and the report's framing connects that conduct to questions of fair access to banking services. Only the existence, title, date and review scope are confirmed here; specific findings, data and any supervisory recommendations are not described in the available material and should be verified against the OCC text before citation.

…

Read the full dispatch →
Sheppard MullinSanctions / Export Controls+ Expand
Treasury Proposes Expanding Outbound Investment Security Program

A Treasury NPRM issued October 22, 2026 would implement Subtitle C of the COINS Act, extending the outbound investment national security program that constrains covered U.S. investors' dealings with foreign persons.

Treasury issued a Notice of Proposed Rulemaking on October 22, 2026 that would implement Subtitle C of the Comprehensive Outbound Investment National Security (COINS) Act, according to a Sheppard Mullin client alert published November 3. The proposal would extend the existing outbound investment security program, under which covered U.S. persons must notify or prohibit certain securities and investment transactions with foreign persons engaged in covered activities linked to national security concerns. The alert does not identify the specific covered technologies, activity definitions, transaction types, or compliance mechanics Treasury proposes to add, so the operative scope should be treated as unconfirmed until the Federal Register text is reviewed.

…

Read the full dispatch →
Foley & LardnerFintech / Crypto+ Expand
CFTC Rules and Kalshi Circuit Split Put Prediction Markets Before Supreme Court

Federal appeals courts now split on whether sports event contracts are CFTC-regulated swaps or state gambling, and the CFTC's October 2026 rules propose expressly redefining "swap" as courts and cert petitions collide.

Per Foley's November 2026 overview (the firm's own analysis, not independent reporting of the holdings), federal appellate courts are divided on whether sports-linked event contracts traded on CFTC-designated contract markets qualify as "swaps" under the Commodity Exchange Act and whether CFTC jurisdiction preempts state gambling law. The Third Circuit (KalshiEX v. Flaherty) held the contracts likely are swaps and that field and conflict preemption barred New Jersey from enforcing its gambling laws. The Ninth Circuit (KalshiEX v. Assad) reached the opposite conclusion, characterizing team-winner contracts as sports bets and pointing to geofencing as a workable compliance measure. On September 25, 2026, the Sixth Circuit joined the Ninth Circuit in the consolidated Ohio and Tennessee appeals (KalshiEX v. Schuler and Orgel), and Kalshi filed an en banc rehearing petition on October 9; a Fourth Circuit decision is expected. Meanwhile, on October 9 the CFTC released a proposed rule amending the "swap" definition to include event contracts and a companion interim final rule excluding casi

…

Read the full dispatch →
Jackson LewisEmployment / Labor+ Expand
EEOC Rescinds 2012 Guidance on Arrest and Conviction Records

The EEOC's Oct. 28, 2026 vote withdraws its 2012 guidance on criminal-history screening, signaling no race or national-origin disparate-impact enforcement — while Title VII, FCRA and stricter state fair-chance laws remain in force.

Per Jackson Lewis, the EEOC voted on Oct. 28, 2026 to withdraw its 2012 "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII," effective immediately. The withdrawn guidance had recommended that employers not ask about convictions on applications, limit inquiries to job-related convictions, and use targeted screens plus individualized assessment (the Green factors) before excluding candidates. Chair Andrea Lucas said the agency will not pursue Title VII disparate-impact claims based on race or national origin arising from criminal-history inquiries, framing the vote as enforcing Title VII within the limits of Congress's authority.

…

Read the full dispatch →
Latham & WatkinsFinancial Regulation+ Expand
Eighth Circuit Affirms Vacatur of Fed Debit Interchange Fee Cap

The Eighth Circuit affirmed vacatur of the Federal Reserve's Regulation II debit interchange fee cap and remanded for a different cost methodology, leaving the Reserve discretion to write a workable replacement.

The Eighth Circuit affirmed the vacatur of the Federal Reserve's Regulation II debit interchange fee cap, holding that the Board's cost-based methodology for setting regulated debit transaction fees was defective, and remanded for the agency to adopt a workable replacement standard. The court left the Reserve meaningful discretion to frame that standard within the boundaries of the authorizing statute, so the ruling is a framework setback rather than an operative substitute cap or fee schedule. For banks, payment networks, and large merchants, the open questions are how much pricing latitude returns, what cost methodology commenters will urge on remand, and how issuers and processors re-price debit portfolios in the interim. Sophisticated counsel should track the remanded docket, where the new methodology and the compliance timeline will be litigated and negotiated, and monitor whether the prevailing parties seek further appellate review, including a possible certiorari petition, which would affect when any final rule arrives. Uncertainty remains concentrated in the breadth of agency

…

Read the full dispatch →
Goodwin ProcterFinancial Regulation+ Expand
CFPB Opens Initiative Probing Debanking at Large Financial Institutions

The CFPB announced on October 14, 2026 a new initiative to investigate potentially unlawful debanking by large financial institutions, putting account-closure practices under fresh federal scrutiny.

What happened: On October 14, 2026, the Consumer Financial Protection Bureau announced a new initiative aimed at investigating potentially unlawful debanking practices by large financial institutions. The alert (republished via JD Supra by Goodwin Procter) describes the move as signaling heightened regulatory scrutiny of account terminations, but the available source does not identify which institutions are in scope, the specific conduct elements under review, the investigative tools deployed, or any timeline for findings.

Why sophisticated counsel should care: Debanking — the termination or refusal of retail or small-business deposit relationships — has drawn repeated CFPB attention, and several state regulators have pursued parallel theories. A federal initiative directed at large institutions raises the prospect of coordinated supervisory inquiries, requests for information, or enforcement actions that reach well beyond one-off settlements, landing on banks already managing overlapping expectations across federal and state supervisors.

…

Read the full dispatch →
McDermott Will & EmeryHealthcare+ Expand
California OHCA finalizes rules expanding PE and MSO oversight

OHCA emergency regulations implementing AB 1415 add state-level scrutiny to private equity and MSO transactions in California health care, creating a new approval gate for a deal class already under regulatory attention.

On October 2, 2026, the California Office of Administrative Law approved emergency regulations issued by the Office of Health Care Affordability (OHCA) implementing Assembly Bill 1415 and expanding state oversight of private equity and management services organization transactions in California health care. The available source is a single law-firm alert whose description is truncated, so specific mechanics — covered transaction thresholds, notice or approval triggers, timelines, and exemptions for existing portfolio companies — are not confirmed here and should be checked against the approved regulation text and any OHCA guidance.

Why sophisticated counsel should care: California has become a gating jurisdiction for health care private equity. A transaction that clears review in other states may now require state-level notice or approval, which can move deal timelines, diligence sequencing, and risk allocation, since a regulator's sign-off is not a price item a buyer can simply waive away.

…

Read the full dispatch →
Skadden, Arps, Slate, Meagher & FlomFinancial Regulation+ Expand
CFTC Proposes Swap Definition to Separate Event Contracts from Gambling

The Commission's October 9, 2026 NPRM would amend the CEA "swap" definition to distinguish event contracts from casino-style wagers, putting prediction-market and brokerage product classification back in play.

The Commodity Futures Trading Commission published a Notice of Proposed Rulemaking on October 9, 2026 that would amend the definition of "swap" under Section 1(a) of the Commodity Exchange Act to expressly draw a line between event contracts and casino-style gambling, according to a Skadden alert. The stated premise is that certain event contracts treated as swaps raise questions when the instrument functions as a wager on the occurrence of an event rather than a conventional derivative exposure.

…

Read the full dispatch →
Vinson & ElkinsSanctions / Export Controls+ Expand
Fifth Circuit: CFIUS Does Not Preempt Texas Grid-Access Ban on China Firms

The Fifth Circuit ruled October 16, 2026, that CFIUS neither conflicts with nor occupies the field of Texas's Lone Star Infrastructure Protection Act, leaving state restrictions on foreign access to critical infrastructure standing.

On October 16, 2026, the Fifth Circuit affirmed dismissal in GH America Energy, L.L.C. v. Fohn, holding that the federal CFIUS regime neither conflict-preempts nor field-preempts Texas's Lone Star Infrastructure Protection Act, which bars agreements giving companies headquartered in, owned or controlled by, or majority-owned by persons of China, Iran, North Korea, Russia or other designated states direct or remote access to Texas critical infrastructure. The court treated LSIPA as regulating intrastate grid-access agreements rather than corporate control transactions, found the two regimes complementary, applied the heightened presumption against preemption in utility regulation, and declined policy balancing. The ruling does not necessarily reach state land-ownership restrictions, since CFIUS regulates real estate under Part 802; the Eighth Circuit heard argument in Arkansas Cryptomining Ass'n v. York on October 20, 2026, on CFIUS preemption of Arkansas Act 174. Sophisticated clients should screen ownership and control through the chain against LSIPA's ERCOT 20% affiliate threshold,

…

Read the full dispatch →
McGuireWoodsHealthcare+ Expand
California OHCA Finalizes CMIR Notice Rules for PE, Hedge Funds, MSOs

Amended cost and market impact review regulations effective Nov. 2, 2026 replace interim guidance on which private equity, hedge fund and MSO transactions must file notice with OHCA, and when.

California's Office of Health Care Affordability (OHCA) issued amended cost and market impact review (CMIR) regulations that take effect Nov. 2, 2026, according to a McGuireWoods client alert. The rules replace OHCA's interim guidance on who must file notice, when notice must be filed, and what must be submitted, with the alert noting particular attention to private equity funds, hedge funds and management services organizations (MSOs).

Why sophisticated counsel and clients care: for sponsors, health systems and their advisers, the filing trigger and timing under the prior interim guidance fed directly into deal structuring — whether an acquisition required notice, how long pre-signing preparation of notice content took, and how the review obligation was allocated among parties. These amendments are now operative regulation rather than non-binding guidance, and they affect conditionality, timetable and sequencing for healthcare transactions in the state's largest healthcare market.

…

Read the full dispatch →
DIG DEEPER
MOST CONSEQUENTIALTwo Circuits Narrow LP Exception to Self-Employment Tax for Fund Sponsors

Recent rulings in two federal courts of appeals narrow the limited partner exception to self-employment tax for fund sponsors, management companies and independent sponsors, pushing private fund counsel to re-test existing structures.

Two federal courts of appeals have issued recent decisions that narrow the availability of the limited partner exception to the self-employment tax, a federal tax doctrine that permits partners who are not materially participating in the trade or business to be excluded from self-employment tax. As reported in a McGuireWoods alert, the rulings represent a meaningful shift for fund sponsors, management companies and independent sponsors that have relied on, or considered relying on, the exception.

Why sophisticated counsel should care: self-employment tax exposure arises at the individual sponsor or GP/manager level, so a narrowing of the exception can change the after-tax economics of a sponsor's own vehicle even where fund-level terms, management fees and carried interest are untouched. Independent sponsors and management-company structures built on the exception are the most exposed.

…

McGuireWoodsTax
self-employment-taxlimited-partner-exceptionfund-sponsorsindependent-sponsorsprivate-fundscircuit-rulings
AR
Today's Curator
Arthur Rodrigues. Corporate Counsel & Corporate Secretary at Teachable, Inc. Founder of Cicero Intelligent Minds. Former BigLaw (O'Melveny, Weil, Hughes Hubbard). JD/LLM Michigan Law. Droplets is a personal project; the views are his own, not Teachable's.
Full Analysis — The Details
01 — CONSUMER PROTECTION1
BakerHostetler+ Expand
FTC 6(b) Orders Demand Personalized Pricing Data from Nine Firms

The FTC's October 28 Section 6(b) orders compel nine airline, ride-sharing, delivery and retail companies to show how personal data drives prices and worker pay, with responses due in 45 days.

On October 28, 2026, the FTC issued Section 6(b) orders to nine companies across the airline, ride-sharing, delivery and retail industries, directing each to document how personal data feeds pricing, job-assignment and worker-compensation decisions, with 45 days from receipt to respond. The Special Order seeks pricing methodologies, the personal-information inputs used, the tools and software involved, how outputs affect outcomes, circumstances of human override, A/B testing, and disclosures to consumers and workers. The FTC has not explained why these companies were selected, and inclusion in the study is not an allegation of wrongdoing. The orders follow the agency's August proposed policy statement warning that undisclosed use of personal data to set prices may be unfair or deceptive, and arrive alongside new state restrictions in New Jersey, Connecticut and Maryland and New York's algorithmic-pricing disclosure mandate. Target, Instacart and JetBlue, said to be among the recipients, already face scrutiny, including a putative JetBlue class action alleging willingness-to-pay prici

…

ftc-6b-orderspersonalized-pricingalgorithmic-pricingsurveillance-pricingconsumer-protectionpricing-algorithmsprivacy-data-use
Read the full dispatch →
02 — CORPORATE / M&A1
Foley & Lardner+ Expand
Delaware Chancery Enjoins Cloudflare Founder-Control Recapitalization

Delaware Chancery enjoined Cloudflare's founder-control recapitalization, finding the special committee likely failed Section 144's good-faith test and narrowing the statute's injunction exclusion.

Per a Foley & Lardner alert, the Delaware Court of Chancery preliminarily enjoined Cloudflare's multi-step recapitalization, which would have let co-founders Matthew Prince and Michelle Zatlyn sell economic interests without losing voting control, holding that plaintiffs showed a reasonable probability that the special committee did not satisfy Section 144's "in good faith and without gross negligence" condition. Vice Chancellor Laster rejected the other statutory arguments: the Section 144(d)(6) injunction exclusion does not reach conflicted controller transactions, board determinations of a committee member's disinterest are measured by gross negligence rather than entire fairness, and the heightened presumption of disinterest for listed-company directors meeting stock-exchange independence rules applies beyond the pleadings stage, requiring clear and convincing evidence to rebut. Because the recapitalization contained no price term and only roughly 15.6% to 17.7% of unaffiliated voting power supported the voted components (with Glass Lewis and ISS opposing), the court also found a

…

delaware-chancerydgcl-section-144safe-harborcontroller-transactionsdual-class-stockfiduciary-dutyfounder-controlpreliminary-injunction
Read the full dispatch →
03 — EMPLOYMENT / LABOR2
Littler+ Expand
Ninth Circuit Blocks California's Captive Audience Ban

The Ninth Circuit affirmed a preliminary injunction against California SB 399, holding the captive-audience statute content- and speaker-based and presumptively unconstitutional, in a roundup also covering COVID and Title VII rulings.

The October appellate roundup from Littler reports four federal circuit decisions. Most consequential is California Chamber of Commerce v. Bonta (9th Cir. Oct. 29, 2026), in which the Ninth Circuit affirmed a preliminary injunction blocking enforcement of California SB 399, the law penalizing employers for adverse action against employees who decline employer-sponsored meetings on religious or political topics, a category that includes labor organizations. The panel read the statute as reaching speech rather than mere attendance, treated it as content-based and speaker-based and presumptively unconstitutional, and held the state had not shown it narrowly tailored to serve a compelling interest. Counsel advising California employers on mandatory captive-audience meetings should reassess meeting scripts, notice-and-consent language and attendance policies while certification is pending. The roundup also covers MacDonald v. Oregon Health & Science University (9th Cir. Oct. 2, 2026), affirming dismissal of free-exercise and Title VII failure-to-accommodate claims brought by a healthcare

…

captive-audience-bansb-399ninth-circuitfirst-amendmentreligious-accommodationprep-act-immunityemployment-appellate
Read the full dispatch →
Jackson Lewis+ Expand
EEOC Rescinds 2012 Guidance on Arrest and Conviction Records

The EEOC's Oct. 28, 2026 vote withdraws its 2012 guidance on criminal-history screening, signaling no race or national-origin disparate-impact enforcement — while Title VII, FCRA and stricter state fair-chance laws remain in force.

Per Jackson Lewis, the EEOC voted on Oct. 28, 2026 to withdraw its 2012 "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII," effective immediately. The withdrawn guidance had recommended that employers not ask about convictions on applications, limit inquiries to job-related convictions, and use targeted screens plus individualized assessment (the Green factors) before excluding candidates. Chair Andrea Lucas said the agency will not pursue Title VII disparate-impact claims based on race or national origin arising from criminal-history inquiries, framing the vote as enforcing Title VII within the limits of Congress's authority.

…

eeoctitle-viibackground-checksarrest-conviction-recordsdisparate-impactfair-chance-lawsfcrahiring
Read the full dispatch →
04 — ENVIRONMENT / ESG / CLIMATE1
Dorsey & Whitney+ Expand
EPA Proposes Overhaul of Federal Methane Standards for Oil and Gas

EPA's proposed sweeping revisions to federal methane standards for the oil and natural gas sector would again reset compliance planning for producers, underscoring how quickly the rules have swung with successive administrations.

EPA has proposed sweeping revisions to federal methane standards governing the oil and natural gas sector, according to a Dorsey & Whitney client alert published in November 2026. The firm's analysis frames the action as the latest swing in a decade of regulatory "ping-pong," with successive administrations alternately expanding, narrowing, and rescinded methane rules — a pattern that gives clients and counsel limited assurance that any single compliance baseline will endure.

Why sophisticated clients care: methane requirements reach drilling and production operations, and the final design of the proposal could drive equipment, monitoring, verification, and operating-cost decisions across multiple basins rather than a single asset. Because the available report characterizes the action only as a proposal, its specific operative requirements, timelines, and cost impacts are not established on this evidence, and the rulemaking remains subject to comment, revision, and possible reversal under a later administration.

…

methane-rulesepa-regulationoil-and-gasenvironmental-regulationemissions-compliance
Read the full dispatch →
05 — FDA / LIFE SCIENCES REGULATORY1
McDermott Will & Emery+ Expand
HHS grants enforcement discretion on six compounded peptides pending Bulks List

HHS said on October 28, 2026 it will not enforce against pharmacies, federal facilities and physicians compounding six peptides while FDA works on its Bulks List rulemaking.

On October 28, 2026, the U.S. Department of Health and Human Services issued an interim policy stating it does not intend to take enforcement action against state-licensed pharmacies, federal facilities, or licensed physicians that compound a specified set of six peptides, while FDA proceeds with rulemaking on the compounding "Bulks List" under the federal drug compounding framework. The excerpt does not identify the six peptides or the precise conditions attached to the non-enforcement stance, so the scope of the safe harbor should be confirmed against the full policy text and any accompanying guidance.

Why sophisticated counsel should care: compounding enforcement posture is a recurring source of risk for telehealth and anti-aging peptide providers, 503A and 503B outsourcing facilities, and hospitals or clinics that prepare sterile and nonsterile preparations. An interim enforcement carve-out can effectively legitimize product lines that remain legally unsettled, while also creating compliance and truthful-marketing exposure where a given product falls outside the carve-out.

…

hhs-compoundingpeptidesbulks-listfda-enforcement-discretioncompounding-pharmaciestelehealth-peptides
Read the full dispatch →
06 — FINANCIAL REGULATION4
Goodwin Procter+ Expand
OCC Report Targets Large-Bank "Debanking" Practices

The OCC's October 2026 report on large-bank "debanking" raises fresh regulatory and client-relationship questions for banks, fintechs and corporates that depend on bank relationships.

The Office of the Comptroller of the Currency released a report titled "Guaranteeing Fair Banking for All Americans" on October 14, 2026, drawing on a supervisory review the agency began in September 2025 of the activities of the then nine largest U.S. banks. The subject is the phenomenon firms have labelled "debanking" — the withdrawal of banking relationships or services from businesses and consumers — and the report's framing connects that conduct to questions of fair access to banking services. Only the existence, title, date and review scope are confirmed here; specific findings, data and any supervisory recommendations are not described in the available material and should be verified against the OCC text before citation.

…

occ-reportdebankingfair-bankinglarge-banksbank-relationshipsfinancial-regulation
Read the full dispatch →
Latham & Watkins+ Expand
Eighth Circuit Affirms Vacatur of Fed Debit Interchange Fee Cap

The Eighth Circuit affirmed vacatur of the Federal Reserve's Regulation II debit interchange fee cap and remanded for a different cost methodology, leaving the Reserve discretion to write a workable replacement.

The Eighth Circuit affirmed the vacatur of the Federal Reserve's Regulation II debit interchange fee cap, holding that the Board's cost-based methodology for setting regulated debit transaction fees was defective, and remanded for the agency to adopt a workable replacement standard. The court left the Reserve meaningful discretion to frame that standard within the boundaries of the authorizing statute, so the ruling is a framework setback rather than an operative substitute cap or fee schedule. For banks, payment networks, and large merchants, the open questions are how much pricing latitude returns, what cost methodology commenters will urge on remand, and how issuers and processors re-price debit portfolios in the interim. Sophisticated counsel should track the remanded docket, where the new methodology and the compliance timeline will be litigated and negotiated, and monitor whether the prevailing parties seek further appellate review, including a possible certiorari petition, which would affect when any final rule arrives. Uncertainty remains concentrated in the breadth of agency

…

debit-interchangeregulation-iieighth-circuitfederal-reservepayment-networksfee-capvacatur
Read the full dispatch →
Goodwin Procter+ Expand
CFPB Opens Initiative Probing Debanking at Large Financial Institutions

The CFPB announced on October 14, 2026 a new initiative to investigate potentially unlawful debanking by large financial institutions, putting account-closure practices under fresh federal scrutiny.

What happened: On October 14, 2026, the Consumer Financial Protection Bureau announced a new initiative aimed at investigating potentially unlawful debanking practices by large financial institutions. The alert (republished via JD Supra by Goodwin Procter) describes the move as signaling heightened regulatory scrutiny of account terminations, but the available source does not identify which institutions are in scope, the specific conduct elements under review, the investigative tools deployed, or any timeline for findings.

Why sophisticated counsel should care: Debanking — the termination or refusal of retail or small-business deposit relationships — has drawn repeated CFPB attention, and several state regulators have pursued parallel theories. A federal initiative directed at large institutions raises the prospect of coordinated supervisory inquiries, requests for information, or enforcement actions that reach well beyond one-off settlements, landing on banks already managing overlapping expectations across federal and state supervisors.

…

cfpbdebankingbanking-supervisionaccount-closuresfinancial-institutionsconsumer-financial-regulation
Read the full dispatch →
Skadden, Arps, Slate, Meagher & Flom+ Expand
CFTC Proposes Swap Definition to Separate Event Contracts from Gambling

The Commission's October 9, 2026 NPRM would amend the CEA "swap" definition to distinguish event contracts from casino-style wagers, putting prediction-market and brokerage product classification back in play.

The Commodity Futures Trading Commission published a Notice of Proposed Rulemaking on October 9, 2026 that would amend the definition of "swap" under Section 1(a) of the Commodity Exchange Act to expressly draw a line between event contracts and casino-style gambling, according to a Skadden alert. The stated premise is that certain event contracts treated as swaps raise questions when the instrument functions as a wager on the occurrence of an event rather than a conventional derivative exposure.

…

cftcevent-contractsprediction-marketscommodity-exchange-actswap-definitionproposed-rule
Read the full dispatch →
07 — FINTECH / CRYPTO1
Foley & Lardner+ Expand
CFTC Rules and Kalshi Circuit Split Put Prediction Markets Before Supreme Court

Federal appeals courts now split on whether sports event contracts are CFTC-regulated swaps or state gambling, and the CFTC's October 2026 rules propose expressly redefining "swap" as courts and cert petitions collide.

Per Foley's November 2026 overview (the firm's own analysis, not independent reporting of the holdings), federal appellate courts are divided on whether sports-linked event contracts traded on CFTC-designated contract markets qualify as "swaps" under the Commodity Exchange Act and whether CFTC jurisdiction preempts state gambling law. The Third Circuit (KalshiEX v. Flaherty) held the contracts likely are swaps and that field and conflict preemption barred New Jersey from enforcing its gambling laws. The Ninth Circuit (KalshiEX v. Assad) reached the opposite conclusion, characterizing team-winner contracts as sports bets and pointing to geofencing as a workable compliance measure. On September 25, 2026, the Sixth Circuit joined the Ninth Circuit in the consolidated Ohio and Tennessee appeals (KalshiEX v. Schuler and Orgel), and Kalshi filed an en banc rehearing petition on October 9; a Fourth Circuit decision is expected. Meanwhile, on October 9 the CFTC released a proposed rule amending the "swap" definition to include event contracts and a companion interim final rule excluding casi

…

prediction-marketskalshicftcevent-contractssports-bettingcircuit-splitsupreme-court-certiorari
Read the full dispatch →
08 — HEALTHCARE4
McDermott Will & Emery+ Expand
ONC's HTI-5 Final Rule Cuts Health IT Certification Criteria

HHS's health IT certification final rule, published October 28, 2026, trims certification requirements and steers interoperability toward FHIR, affecting EHR vendors, health systems and providers' attestations.

On October 28, 2026, HHS's Office of the National Coordinator for Health Information Technology published the Health Data, Technology, and Interoperability: ONC Certification Criteria Updates (HTI-5) final rule in the Federal Register. Per a McDermott Will & Emery summary, the rule trims health IT certification requirements and sets a FHIR-forward course for interoperability.

Why it matters: certification criteria decide which EHRs and health IT modules are federally certified, driving vendor roadmaps, health system procurement specifications, and federal programs and attestations tied to certified software. Narrower criteria should reduce compliance cost and speed product releases, while the interoperability direction raises expectations for vendors slow to adopt FHIR-based APIs. Providers need to know whether narrower criteria affect their certified deployments, attestations, and vendor contracts.

…

onc-hti-5health-it-certificationfhirehrdigital-healthhhs-regulation
Read the full dispatch →
Husch Blackwell+ Expand
DOJ, HHS Launch Six-Month Healthcare FCA Self-Disclosure Pilot

The Civil Division and HHS opened a six-month False Claims Act self-disclosure pilot for healthcare providers, creating a new channel to report suspected overpayments — with terms and open questions still to resolve.

On October 22, 2026, the Department of Justice Civil Division and the Department of Health and Human Services announced a six-month Healthcare False Claims Act Self-Disclosure Pilot Program. The pilot opens a channel for eligible healthcare providers to self-report suspected False Claims Act violations to both agencies, and the source reporting walks through the program's terms and limits alongside questions it leaves unresolved.

Why sophisticated counsel should care: the FCA carries per-claim civil penalties, so provider clients — health systems, hospitals, physicians, and contractors billing government programs — face a recurring sequencing decision between investigating quietly and disclosing early. A dedicated DOJ-HHS channel could shift that calculus, and any resulting enforcement posture will be shaped by how the agencies treat disclosures made under it.

…

false-claims-actfca-self-disclosurehealthcare-fraud-and-abusedoj-civil-divisionhhsoverpayment-reportingpilot-program
Read the full dispatch →
McDermott Will & Emery+ Expand
California OHCA finalizes rules expanding PE and MSO oversight

OHCA emergency regulations implementing AB 1415 add state-level scrutiny to private equity and MSO transactions in California health care, creating a new approval gate for a deal class already under regulatory attention.

On October 2, 2026, the California Office of Administrative Law approved emergency regulations issued by the Office of Health Care Affordability (OHCA) implementing Assembly Bill 1415 and expanding state oversight of private equity and management services organization transactions in California health care. The available source is a single law-firm alert whose description is truncated, so specific mechanics — covered transaction thresholds, notice or approval triggers, timelines, and exemptions for existing portfolio companies — are not confirmed here and should be checked against the approved regulation text and any OHCA guidance.

Why sophisticated counsel should care: California has become a gating jurisdiction for health care private equity. A transaction that clears review in other states may now require state-level notice or approval, which can move deal timelines, diligence sequencing, and risk allocation, since a regulator's sign-off is not a price item a buyer can simply waive away.

…

healthcare-private-equitycalifornia-ohcaab-1415transaction-oversighthealthcare-regulationmanagement-services-organizations
Read the full dispatch →
McGuireWoods+ Expand
California OHCA Finalizes CMIR Notice Rules for PE, Hedge Funds, MSOs

Amended cost and market impact review regulations effective Nov. 2, 2026 replace interim guidance on which private equity, hedge fund and MSO transactions must file notice with OHCA, and when.

California's Office of Health Care Affordability (OHCA) issued amended cost and market impact review (CMIR) regulations that take effect Nov. 2, 2026, according to a McGuireWoods client alert. The rules replace OHCA's interim guidance on who must file notice, when notice must be filed, and what must be submitted, with the alert noting particular attention to private equity funds, hedge funds and management services organizations (MSOs).

Why sophisticated counsel and clients care: for sponsors, health systems and their advisers, the filing trigger and timing under the prior interim guidance fed directly into deal structuring — whether an acquisition required notice, how long pre-signing preparation of notice content took, and how the review obligation was allocated among parties. These amendments are now operative regulation rather than non-binding guidance, and they affect conditionality, timetable and sequencing for healthcare transactions in the state's largest healthcare market.

…

healthcarecalifornia-ohcacmir-reviewprivate-equityhedge-fundstransaction-reviewfiling-requirements
Read the full dispatch →
09 — IP / PATENT1
Holland & Knight+ Expand
Delaware court splits patent-eligibility ruling in TQ Delta v. DISH

Judge Gregory Williams of the District of Delaware granted in part and denied in part DISH Network's Section 101 summary judgment motion in TQ Delta, LLC v. DISH Network Corp. (No. 15-614-GBW), opinion issued October 19, 2026.

On October 19, 2026, Judge Gregory Williams of the U.S. District Court for the District of Delaware granted in part and denied in part a motion for summary judgment under 35 U.S.C. § 101 in TQ Delta, LLC v. DISH Network Corp., No. 15-614-GBW. The material reviewed here is a single law-firm alert; it does not identify which claims or claim limitations were held eligible or ineligible, and the slip opinion itself is not in evidence, so the precise scope of the ruling should be confirmed against the opinion before it is relied on. At that level of generality, the development still matters to sophisticated patent counsel. Eligibility screening under § 101 is one of the most consequential early-stage levers in multiparty patent disputes, and a mixed ruling ordinarily keeps the case alive and pushes it toward claim construction, validity, and infringement rather than ending it on eligibility grounds alone. Clients on both sides of § 101 motions should track the resulting case-management schedule, the start of any claim-construction phase, and any notice of appeal, and should compare the co

…

patent-eligibilitysection-101summary-judgmenttq-deltadish-networkdelaware-district-court
Read the full dispatch →
10 — PHARMA / BIOTECH1
Husch Blackwell+ Expand
California Supreme Court rejects duty to innovate in Gilead Tenofovir cases

In Gilead Tenofovir Cases, 20 Cal. 5th 390 (2026), the California Supreme Court reportedly held a manufacturer cannot be liable for not developing a safer alternative sooner when the product sold is not defective.

The California Supreme Court, in Gilead Tenofovir Cases, 20 Cal. 5th 390 (2026), rejected the proposition that a pharmaceutical manufacturer may be liable for failing to bring an allegedly safer drug to market sooner when the product it already sells is not defective. Per a Husch Blackwell client alert published on JD Supra on 2 November 2026, the court declined to impose either a duty to innovate or an obligation to accelerate development of alternatives to non-defective products.

…

gileadtenofovirduty-to-innovateproduct-liabilitycalifornia-supreme-courtmass-tort
Read the full dispatch →
11 — SANCTIONS / EXPORT CONTROLS3
K&L Gates+ Expand
Treasury Proposes Sweeping Expansion of Outbound Investment Bans

Treasury's October 2026 NPRM would bar most US investments in Chinese AI, biotech, hypersonic and quantum developers, drop notification tiers and tighten fund/LP diligence, with comments due 7 December 2026.

Treasury's 22 October 2026 NPRM (91 Fed. Reg. 67396) would implement the COINS Act, replacing 31 C.F.R. Part 850 with a new Part 851 and extending the outbound investment program to Cuba, Iran, North Korea and Russia. Most consequentially, it would drop the notification-only tier for AI, relabelled "super intelligence" under Executive Order 14434, so covered transactions in any SI developer would be prohibited regardless of computing thresholds — a choice Treasury made although the statute left the parameters open, and one likely to draw heavy comment. Biotechnology, including small molecules, vaccines, cell and gene therapies and monoclonal antibodies, would also become prohibited technology with no notification tier, potentially reaching much of China's pharma and life-sciences tools sector; licensing and procurement contracts generally stay outside, while co-development and joint ventures need structure-specific analysis. For asset managers, public securities exceptions survive, the BDC exception is dropped, LP commitments above $2 million need binding assurances covering both not

…

outbound-investmentcoins-acttreasury-nprmsuper-intelligencebiotechnologyprivate-equityinvestment-screening
Read the full dispatch →
Sheppard Mullin+ Expand
Treasury Proposes Expanding Outbound Investment Security Program

A Treasury NPRM issued October 22, 2026 would implement Subtitle C of the COINS Act, extending the outbound investment national security program that constrains covered U.S. investors' dealings with foreign persons.

Treasury issued a Notice of Proposed Rulemaking on October 22, 2026 that would implement Subtitle C of the Comprehensive Outbound Investment National Security (COINS) Act, according to a Sheppard Mullin client alert published November 3. The proposal would extend the existing outbound investment security program, under which covered U.S. persons must notify or prohibit certain securities and investment transactions with foreign persons engaged in covered activities linked to national security concerns. The alert does not identify the specific covered technologies, activity definitions, transaction types, or compliance mechanics Treasury proposes to add, so the operative scope should be treated as unconfirmed until the Federal Register text is reviewed.

…

outbound-investmenttreasury-nprmcoins-actnational-securitycross-border-dealsdeal-diligence
Read the full dispatch →
Vinson & Elkins+ Expand
Fifth Circuit: CFIUS Does Not Preempt Texas Grid-Access Ban on China Firms

The Fifth Circuit ruled October 16, 2026, that CFIUS neither conflicts with nor occupies the field of Texas's Lone Star Infrastructure Protection Act, leaving state restrictions on foreign access to critical infrastructure standing.

On October 16, 2026, the Fifth Circuit affirmed dismissal in GH America Energy, L.L.C. v. Fohn, holding that the federal CFIUS regime neither conflict-preempts nor field-preempts Texas's Lone Star Infrastructure Protection Act, which bars agreements giving companies headquartered in, owned or controlled by, or majority-owned by persons of China, Iran, North Korea, Russia or other designated states direct or remote access to Texas critical infrastructure. The court treated LSIPA as regulating intrastate grid-access agreements rather than corporate control transactions, found the two regimes complementary, applied the heightened presumption against preemption in utility regulation, and declined policy balancing. The ruling does not necessarily reach state land-ownership restrictions, since CFIUS regulates real estate under Part 802; the Eighth Circuit heard argument in Arkansas Cryptomining Ass'n v. York on October 20, 2026, on CFIUS preemption of Arkansas Act 174. Sophisticated clients should screen ownership and control through the chain against LSIPA's ERCOT 20% affiliate threshold,

…

cfiusstate-preemptionlone-star-infrastructure-protection-actercotforeign-investmentfifth-circuitcritical-infrastructure
Read the full dispatch →
12 — TAX2
McGuireWoods+ Expand
Two Circuits Narrow LP Exception to Self-Employment Tax for Fund Sponsors

Recent rulings in two federal courts of appeals narrow the limited partner exception to self-employment tax for fund sponsors, management companies and independent sponsors, pushing private fund counsel to re-test existing structures.

Two federal courts of appeals have issued recent decisions that narrow the availability of the limited partner exception to the self-employment tax, a federal tax doctrine that permits partners who are not materially participating in the trade or business to be excluded from self-employment tax. As reported in a McGuireWoods alert, the rulings represent a meaningful shift for fund sponsors, management companies and independent sponsors that have relied on, or considered relying on, the exception.

Why sophisticated counsel should care: self-employment tax exposure arises at the individual sponsor or GP/manager level, so a narrowing of the exception can change the after-tax economics of a sponsor's own vehicle even where fund-level terms, management fees and carried interest are untouched. Independent sponsors and management-company structures built on the exception are the most exposed.

…

self-employment-taxlimited-partner-exceptionfund-sponsorsindependent-sponsorsprivate-fundscircuit-rulings
Read the full dispatch →
Foley & Lardner+ Expand
Circuit Courts Split on Limited Partner Self-Employment Tax Test

The Fifth and Second Circuits both held that state-law limited partner status alone does not qualify for the Section 1402(a)(13) self-employment tax exception, but they adopted different tests for when management activity defeats it.

In August 2026 the Fifth Circuit withdrew its original Sirius Solutions opinion and substituted K Alain, L.L.P. v. Commissioner, 184 F.4th 766, holding that a "limited partner" for Section 1402(a)(13) purposes is one who "plays no significant role in managing or running a business," rejecting the Tax Court's detailed functional analysis in favor of a broader no-significant-management-control test that tolerates some participation short of control. In September the Second Circuit affirmed the Tax Court in Soroban Capital Partners LP v. Commissioner, holding that state-law limited partner designation is not sufficient and that fund principals who worked full time, managed portfolio investments, sat on governing committees and participated in hiring were not "passive investors," so their distributive shares were subject to self-employment tax. The Second Circuit said there was "little daylight" between the two definitions, but the Fifth Circuit expressly rejected the Tax Court's approach, leaving the operative threshold unsettled. Fund partners, family offices and individual investors s

…

self-employment-taxlimited-partner-exceptionsection-1402private-equitytax-courtcircuit-split
Read the full dispatch →
13 — WHITE COLLAR / INVESTIGATIONS1
Morrison & Foerster+ Expand
DOJ NSD Announces First 'Near-Miss' Non-Prosecution Agreement

The National Security Division and EDNC announced the first 'near-miss' non-prosecution agreement under DOJ's revised corporate enforcement policy, turning that new policy language into an operative precedent.

On October 27, 2026, DOJ's National Security Division and the U.S. Attorney's Office for the Eastern District of North Carolina announced a non-prosecution agreement (NPA) with a corporate entity, described as the first "near-miss" NPA under DOJ's revised corporate enforcement policy. The available report excerpt does not identify the counterparty, the underlying conduct, or the NPA's terms, so the specific factual predicates and any export-control or sanctions nexus remain unconfirmed here.

…

non-prosecution-agreementnear-missdoj-corporate-enforcement-policynational-security-divisionexport-controlswhite-collar-compliance
Read the full dispatch →
Also noted

Grade 3 — worth a glance, not the full analysis.

Stay ahead

Join the digest.

Each weekday's issue by email, through Substack. Or follow the RSS feed.