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Today, the Securities and Exchange Commission’s (SEC) Division of Enforcement announced significant updates to its Enforcement Manual, the first comprehensive revision since 2017. These changes, which will now be reviewed annually, are designed to promote greater fairness, transparency, and efficiency in SEC investigations and enforcement actions.

The Role of the Enforcement Manual

The Enforcement Manual serves as the division’s internal roadmap, guiding staff in how they initiate, investigate, and recommend enforcement actions. While it is not a formal rule and does not create enforceable rights, it provides valuable visibility into the processes the SEC staff are expected to follow.

Key Points From the Updated Enforcement Manual

One of the most consequential updates involves the Wells process, the stage at which potential respondents and defendants are given an opportunity to respond to the staff’s anticipated enforcement recommendations. The revised manual emphasizes open and substantive dialogue between SEC staff and Wells recipients, with the aim of improving the quality of decision-making and the fairness of outcomes. As part of this, Wells recipients will ordinarily have four weeks to make their submissions, and the manual now provides guidance on what makes a Wells submission most useful to staff and the commission. The manual also clarifies that Wells meetings will generally be scheduled within four weeks of the staff’s receipt of a submission and will include participation by a member of senior leadership within the division. These timeframes are intended both to promote timely resolution of investigations and to allow parties to learn more quickly whether the staff will recommend closure or an enforcement action.

Another key development is the formal restoration and clarification of the commission’s practice of simultaneously considering settlement recommendations and related waiver requests. When settling an SEC enforcement action, parties may face automatic disqualifications and other collateral regulatory consequences, which can significantly affect their businesses beyond the immediate settlement terms. The updated manual confirms that settling parties may request that the commission evaluate an offer of settlement and any associated waiver request at the same time.

The Enforcement Manual also includes a more detailed framework for how the division evaluates cooperation by individuals and entities, including how cooperation may affect charging decisions and civil penalties. By articulating the factors and general approach to cooperation credit in one place, the SEC aims to encourage earlier, more meaningful engagement with the staff. In addition, the updates address several internal process improvements: measures to support more consistent collaboration across SEC offices and specialty units; refinements to the formal order process that authorizes staff to issue subpoenas; an updated framework for referrals to criminal authorities; and other changes designed to better align written procedures with the division’s current best practices.

On February 24, the New Jersey State Senate unanimously confirmed the appointment of Jennifer Davenport to serve as New Jersey’s attorney general (AG). Davenport (whose nomination we covered here) has been serving in an acting capacity since Governor Mikie Sherrill took office in January.

Meanwhile, the regulatory and enforcement agenda that will guide the work of the AG’s office continues to take shape. On February 18, Sherrill’s office released 10 reports from the “Action Teams” established during the transition between administrations to recommend actions that would advance the governor’s priorities.

The Action Teams’ recommendations are not binding on the governor or the AG, and the administration may or may not agree with all of them. (A press release says the administration is “actively reviewing” the recommendations.) Nonetheless, the reports offer the most detailed articulation to date of how the administration might deliver both on the “affordability” agenda that was the focus of the governor’s campaign and on her commitments to protecting kids online.

Several Action Team reports include recommendations for the AG to pursue specific regulatory and/or enforcement actions, alone or in coordination with agencies represented by the AG’s office. Many of these recommendations reflect priorities identified by Sherrill and Davenport when Davenport’s nomination was announced.

Across a wide variety of topics — from social media and other online services to housing and financial services to health care and labor law — the reports call for more robust enforcement by the AG and other regulators in service of the governor’s agenda. And while some of these recommendations would require new legislative authority, many could be implemented through strategic enforcement of existing antitrust, consumer protection, civil rights, and labor laws.

Social Media and Online Safety

The report from the Kids’ Mental Health and Online Safety Action Team includes a long list of proposed legislative reforms as well as some actions that the AG could take without new statutory authority.

Notably, New Jersey is already engaged in litigation against several major social media platforms after co-leading multistate consumer protection investigations focused on potential harms to children who use social media.

While that litigation unfolds, one recommendation in the report suggests that the AG open a new line of inquiry into social media platforms by studying how they and other online platforms may facilitate scams. The recommended study could result in recommendations for statutory or regulatory changes or in enforcement actions against platforms that do not adequately address use of their services to scam users. This recommendation is reminiscent of pending federal legislation called the Safeguarding Consumers from Advertising Misconduct (SCAM) Act and an inquiry initiated by the Federal Trade Commission (FTC) in 2023.

The recommended study would map how scams originate and spread across platforms (including by examining targeted advertising, direct messaging, and algorithmic amplification); evaluate platforms’ profits from scam-related content and advertising; evaluate reporting, detection, and takedown procedures as well as cooperation with law enforcement and consumer protection agencies; and analyze demographic and loss data to identify the most affected populations.

Of the report’s recommendations that call for legislation, several would enhance the AG’s authority to regulate and investigate social media platforms and other online service providers:

Age-Appropriate Design Code. The report recommends legislation that would require online service providers to incorporate certain privacy and safety features for users who are minors, citing laws from Maryland, Nebraska, and Vermont as models. An already-pending bill would treat violations of these requirements as unlawful practices under the New Jersey Consumer Fraud Act, which the AG may enforce by seeking civil penalties. The report recommends amending that legislation so that it also provides a private right of action for victims of serious online harms.
Age Restrictions for Social Media. The report recommends legislation prohibiting social media companies whose services include certain “addictive features” from establishing accounts for users under the age of 16 and that the AG be given authority to implement the legislation through rulemaking.
Warning Labels for Social Media. Citing a recent New York law as a model, the report recommends legislation requiring social media platforms to display mental health warning labels consistent with regulations to be adopted by the AG.
Strict Liability for Harms From AI Chatbots. The report recommends legislation imposing strict liability on “AI chatbot providers that promote damaging content to young people,” citing “content promoting suicide, eating disorders, and substance use, and other potential categories.” The recommended legislation would both empower the AG to pursue enforcement actions and confer a private right of action for damages and injunctive relief.
Data Broker Registration and Deletion Requirements. The report recommends legislation — along the lines of California’s Delete Act — that would allow New Jersey residents to access a centralized website to request “deletion of all the data collected about them” or to prohibit its sale. The report does not reference the AG in connection with this recommendation, but it is likely that the AG would be given authority to enforce the law.

Housing and Lending-Related Investigations

Citing reduced federal enforcement, the report of the Lowering Housing Costs and Expanding Homeownership Action Team includes recommendations that the AG prioritize investigations of “housing discrimination, lending discrimination, and predatory lending.” The AG’s office also pursued significant enforcement actions in these areas in the last administration. While this recommendation therefore reflects continuity — or perhaps a renewed emphasis — one change is that future enforcement actions involving housing and lending discrimination may invoke the disparate impact regulations that were finalized in December 2025.

The report also calls on the administration to support efforts by the AG to “investigate, and when appropriate, prosecute, collusion to raise rents.” This recommendation also reflects continuity: the state filed an antitrust and consumer protection lawsuit last year against several large landlords and a software company for allegedly colluding to raise rents through algorithmic pricing software. The AG’s office also created a new antitrust litigation and competition enforcement section in 2024, increasing the state’s capacity to pursue complex antitrust cases.

A final recommendation breaks some new ground. The report calls on the AG to prioritize complaints about “landlords who fail to maintain safe, livable conditions or do not comply with state and/or local renters’ rights laws.” While other AGs have used their state consumer protection laws to address living conditions in multifamily housing complexes, New Jersey has not announced any similar actions.

Health Care Competition and Transparency

The report of the Affordable Healthcare Action Team includes recommendations for enhanced enforcement activity focused on various parts of the health care industry.

The report recommends that the administration consider addressing health care costs in part through more robust enforcement by the AG of antitrust laws. Citing experts who “believe that consolidation in the healthcare markets lead[s] to increased healthcare costs and may result in compromised healthcare,” the report notes that the FTC and U.S. Department of Justice “review these issues at the national level” and that “New Jersey may wish to explore bolstering state authority and not rely entirely on federal efforts.” Notably, the FTC effectively blocked two major hospital mergers in New Jersey during the Biden administration while New Jersey’s AG stood on the sidelines.

The report also points to competition law as a potential tool for addressing prescription drug costs, recommending that the administration consider “bolster[ing]” the AG’s “antitrust enforcement authority to investigate anticompetitive activity with PBMs, insurers and pharmacies that lead to higher prices.”

Beyond antitrust enforcement, the report proposes increased enforcement of various laws administered by the state’s health care regulatory agencies, “including staffing requirements, quality standards, and inspection of healthcare facilities.” The report specifically calls for more robust enforcement by the Department of Banking and Insurance, including by “reviewing insurance companies’ practices (market behavior) and payment for those who sell insurance (broker behavior and commissions).”

Finally, the report also notes, in its discussion of increased transparency around health care costs, that New Jersey may consider legislation along the lines of a Massachusetts law that requires health care providers to disclose information about their participation in a patient’s health plan and about the potential costs of services. If New Jersey were to adopt such a law, the AG may play a role in enforcing its requirements.

Wage and Hour Enforcement

The report of the Jobs, Opportunity, and Prosperity for All Action Team includes a recommendation that “the Governor’s Office staff work with the Department of Labor and Workforce Development to assess employer compliance with workforce, labor, and wage and hour protections and determine where enforcement should be enhanced to protect the rights and safety of employees.” The AG’s office represents the Department of Labor in enforcement actions, including wage and hour matters, and also has sought penalties under the New Jersey False Claims Act for prevailing wage violations by government contractors. The recommendation reflects an interest in more strategically allocating regulatory and enforcement resources within the Department of Labor.

The Affordable Healthcare Action Team report echoes this call for stepped up enforcement of worker protection laws with a particular focus on the health care sector. According to this report, the Department of Labor “should ensure enforcement of labor protections for healthcare workers, particularly wage and hour enforcement for in-home and community-based workers,” as a means of promoting better health outcomes at lower costs.

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Whether New Jersey’s new AG takes up any of the Action Teams’ recommendations remains to be seen. Meanwhile, companies operating in industries that have been identified as warranting increased enforcement should consider strategies for reinforcing their compliance programs and for proactively shaping the new administration’s regulatory and enforcement plans from the outset of the new governor’s term.

Mortgage fraud is evolving in scale and sophistication, driven by digitized mortgage processes and the proliferation of AI-enabled document manipulation and deepfakes. Financial institutions are especially at risk. The authors of this article propose a practical, cross-institutional response: tighten internal controls; invest in advanced analytics and real-time monitoring; strengthen frontline training; and collaborate with law enforcement and other industry players. This integrated approach, they conclude, better positions financial institutions to outpace emerging risks.

Click here to read the full article in The Review of Banking & Financial Services.

On February 20, the Supreme Court of the United States held that the president lacks authority under the International Emergency Economic Powers Act (IEEPA) to impose tariffs. The decision invalidates duties imposed pursuant to the IEEPA-based executive orders issued in 2025, including tariffs imposed on Mexico, Canada, and China designed to combat fentanyl trafficking and immigration concerns, the reciprocal tariffs regime, and related country-specific actions (e.g., Brazil and India). That same day, President Donald Trump issued an executive order titled “Ending Certain Tariff Actions” (the IEEPA Terminating Order), formally terminating those IEEPA-based tariffs. U.S. Customs and Border Protection (CBP) subsequently issued guidance confirming that IEEPA-based tariffs will no longer be collected on imported goods starting February 24, 2026, and that it is updating the Automated Commercial Environment (ACE) portal to deactivate the relevant Chapter 99 Harmonized Tariff Schedule of the United States (HTSUS) provisions.

The ruling does not affect tariffs imposed under other statutory authorities, including Section 232 of the Trade Expansion Act of 1962 (Section 232), Section 301 of the Trade Act of 1974 (Section 301), and Section 201 of the Trade Act of 1974 (Section 201), as well as antidumping and countervailing duty (AD/CVD) orders, which remain in full force and effect (collectively, Sectoral Tariffs). This development does not signal a broader rollback of U.S. tariff policy. Within hours of the Court’s decision, President Trump, through the issuance of a proclamation titled “Imposing a Temporary Import Surcharge to Address Fundamental International Payments Problems” (the Section 122 Proclamation), invoked Section 122 of the Trade Act of 1974 (Section 122), imposing a temporary 10% global import surcharge starting February 24, 2026.

For importers, the landscape now presents two parallel considerations: (1) potential refund strategies for the IEEPA-based tariffs previously paid; and (2) forward-looking exposure modeling under Section 122 and Sectoral Tariffs.

The Court’s Holding

In Learning Resources, Inc. et al. v. Trump^{^[1]}and V.O.S. Selections v. Trump,[2] the Court concluded that IEEPA’s authorization to “regulate … importation” does not include the power to impose tariffs. The Court emphasized that: (1) the Constitution vests taxing and tariff authority in Congress; (2) IEEPA does not expressly authorize duties; and (3) when Congress intends to delegate tariff authority as part of its core taxing and foreign commerce powers, it does so explicitly (e.g., Section 122, Section 201, Section 301, and Section 232).

Accordingly, the decision invalidates tariffs imposed under the following executive orders, including amendments (collectively, the IEEPA Tariffs):

Executive Order 14193 (Northern Border/Fentanyl)
Executive Order 14194 (Southern Border/Migration)
Executive Order 14195 (China Synthetic Opioid Supply Chain)
Executive Order 14245 (Countries Importing Venezuelan Oil)
Executive Order 14257 (Reciprocal Tariffs)
Executive Order 14323 (Brazil)
Executive Order 14329 (India/Russia)

The Court did not expressly address refunds for duties already paid. However, the dissent recognizes that the ruling is likely to trigger significant refund claims (potentially billions of dollars) to be administered through the existing customs and Court of International Trade (CIT) framework, indicating that importers may have recourse, for example, through the protest mechanism with CBP.

IEEPA allows the president to regulate international commerce after declaring a national emergency in response to an “unusual and extraordinary threat.” The government argued that the statute’s reference to “regulate … importation” implicitly authorized tariffs at any rate and duration once an emergency is declared. The Court disagreed, stressing that IEEPA lists specific powers but does not mention “tariffs” or “duties” and that Congress has granted tariff authority expressly in other trade statutes. The majority also highlighted the magnitude of the power the government claimed — open‑ended, emergency-triggered tariff authority — as a reason to read the statute narrowly.

By confirming the limits of IEEPA, the decision delineates the procedural boundaries within which the U.S. may impose tariffs and provides greater statutory clarity regarding the legal basis for future trade measures. In doing so, the ruling re-anchors U.S. trade policy within established statutory frameworks.

Practical Impact on Duty Liability

The Court’s invalidation of the IEEPA Tariffs removes only the IEEPA component of the duty “stack” on affected imports; it does not alter any other tariff authorities. In the immediate aftermath of the decision, CBP began updating its systems for processing imports. On Sunday evening, CBP issued CSMS #67834313, titled “Ending IEEPA Tariff Collection.” That notice explains that IEEPA Tariffs will no longer be assessed or collected on goods entered for consumption, or withdrawn from warehouse for consumption, on or after 12 a.m. ET on February 24, 2026. Correspondingly, importers will no longer be required to input IEEPA-related Chapter 99 HTSUS codes to secure release of their cargo. All other applicable duties, including most-favored nation (MFN) general duty rates, Sectoral Tariffs, deminimis restrictions (CSMS #67845486), and, where applicable, the new Section 122 global surcharge, remain fully in effect.

At present, there is no sign that CBP will automatically reliquidate all affected entries. Importers will therefore need to use existing customs procedures to pursue refunds and to distinguish between: (i) entries where IEEPA duties were layered on top of other trade remedies, and (ii) entries where IEEPA was the only source of additional duties. For products — particularly non‑steel, non‑aluminum, and non‑copper components — that were not subject to Section 232 or other trade measures and became dutiable only because of the IEEPA Tariffs, the Court’s decision removes the sole extra duty layer. Going forward, those products revert to their normal MFN or other applicable rates, and the IEEPA Tariffs previously paid on such entries are likely to be the most straightforward candidates for potential refunds.

Relief and Refunds

Under the U.S. customs framework (discussed in detail here): (i) before liquidation, importers may file post‑summary corrections (PSCs) to amend duty, value, classification, and other declaratory elements, and CBP may extend or suspend the liquidation period, although entries are generally liquidated within 314 days of entry; (ii) after liquidation, duty determinations are final unless the importer files a protest within 180 days of the liquidation date; and (iii) if CBP denies the protest (or does not act within the statutory period), the importer may file suit in the CIT within 180 days of the mailing date of CBP’s notice of denial. These tools provide possible avenues to seek relief but do not create an automatic refund program for IEEPA‑related duties. It remains uncertain whether CBP will adapt these existing processes or whether specific administrative guidance or new legislation will be required to implement any comprehensive refund regime.

Because the first IEEPA Tariffs were implemented in 2025, the first wave of entries subject to those tariffs began liquidating around December 16, 2025. For those initially liquidated entries, importers would need to file a protest on or about June 13, 2026 (i.e., within 180 days of liquidation) to preserve their administrative refund rights and the ability to pursue judicial review. If the protest period expires without a timely protest, the liquidation becomes final and conclusive under 19 U.S.C. § 1514, and the importer generally does not have the right to file suit in the U.S. Court of International Trade to challenge those duties. Absent an atypical basis for residual jurisdiction under 28 U.S.C. § 1581(i), the loss of protest rights typically means the loss of judicial recourse for those entries.

The Court clarified that challenges to the legality or application of tariffs “arising out of” federal trade and customs laws fall within the exclusive jurisdiction of the CIT. The Court did not, however, directly prescribe the specific remedies available to the many importers that have already paid IEEPA Tariffs, and the administration has indicated that it is awaiting further guidance from the lower courts.

Although the majority opinion does not explicitly discuss remedies, the dissent acknowledged that the government may ultimately be required to refund tens of billions of dollars in unlawfully collected duties and characterized the likely refund process as a “mess.” The mechanics and temporal scope of any refunds remain unresolved. The majority opinion does not dispute the dissent’s characterization of potential refund exposure, nor does it purport to limit the availability of refunds. Instead, the Court effectively leaves the implementation of refunds to existing customs procedures and the CIT framework.

Senate Democrats have introduced a bill titled “Tariff Refund Act of 2026,” which would require the administration to refund, with interest and within 180 days, all revenue collected under the invalidated IEEPA tariffs, with a priority placed on small businesses and smaller importers in the refund process. It remains uncertain whether the bill will garner sufficient bipartisan support to clear both chambers of Congress or if it will overcome a potential veto from President Trump.

Recent decisions from the CIT confirm that the court can order reliquidation and refunds where duties were unlawfully collected, suggesting that early, “protective” lawsuits are not always required to preserve refund rights if a tariff regime is later invalidated. At the same time, the government has indicated that it views refunds as generally available only to importers that affirmatively pursue relief — through protests, litigation, or both — creating uncertainty over how courts will apply exhaustion requirements and whether CBP will adopt any broader administrative refund program.

Against this backdrop, importers that paid IEEPA duties should assess their current posture, including liquidation status, protest deadlines, and any existing challenges, to protect potential refund rights. By way of example, an international shipping and logistics company has filed suit in the CIT to contest the now‑invalidated duties and seek refunds, arguing that IEEPA never authorized the president to impose tariffs and that CBP’s role was purely ministerial. For other importers, similar litigation may be a viable path to recovery, but whether to pursue that approach will depend on each company’s specific duty exposure, entry profile, and timing, and should be evaluated on a case‑by‑case basis.

Uncertainties Going Forward

Even with these procedures in place, significant questions remain on both the remedial and constitutional fronts.

It remains unclear whether potential refunds will be limited to importers that previously “preserved their rights” through CBP processes or litigation. In December 2025, multiple importers, including several large national retailers, filed suit in the CIT to preserve their refund rights under the current customs protest and litigation process in the event that the Court ultimately invalidated the IEEPA Tariffs. The CIT held that importers who had already filed timely challenges to the IEEPA Tariffs would not forfeit potential refunds merely because their entries liquidated while the Court was considering the legality of IEEPA Tariffs. How any eventual refund process will treat importers that did not take similar steps is unresolved. Notably, the IEEPA Tariffs were held to be invalid on the merits, rather than merely procedurally defective, which reinforces the argument that some form of relief should be available, even though the scope, mechanics, and eligibility criteria have not yet been defined.

Relatedly, the CIT will be the central forum for addressing IEEPA Tariff refunds, with appeals going to the U.S. Court of Appeals for the Federal Circuit. It remains unclear how the court will structure any relief: whether it will apply plaintiff‑specific standards or instead articulate broader principles that CBP must implement, potentially through additional guidance. What is clear is that companies will need to monitor developments closely and be prepared to affirmatively seek relief.

Beyond refunds, the decision leaves unresolved several constitutional and policy issues that may shape future tariff practice. The Court did not address whether the national emergencies invoked — for example, drug trafficking issues at the northern and southern borders and fentanyl smuggling facilitated by China — to justify tariffs on products from Canada, Mexico, and China satisfied IEEPA’s “unusual and extraordinary threat” threshold. And although the Court held that IEEPA cannot be used to levy peacetime tariffs, it remains unclear whether the same stated emergency concerns the government relied upon for IEEPA Tariffs could instead be advanced under other statutory frameworks, such as the Sectoral Tariffs, subject to their own procedural and substantive constraints.

Future Tariff Power

From a business planning perspective, the decision is less a “tariff rollback” and more a rebalancing of tools, and it should be considered together with potential Section 122, Section 232, and Section 301 developments. The Court’s decision also has immediate implications for existing trade agreements and ongoing or future trade negotiations. Businesses must consider how the Court’s ruling affects broader trade developments internationally. With the IEEPA Tariffs now invalidated, trading partners have sought assurances that future tariff measures will be grounded in durable statutory authority and consistent with the trade agreement they have struck with this administration. For example, the EU, which was set to vote on approval of a trade agreement reached with the administration last year, agreed to further delay any such vote in light of the Court’s ruling. Thus, the risk profile of business deals negotiated based on expected international agreements may be left in flux.

Uncertainty persists across multiple industries. Other tariff tools remain available, including Sectoral Tariffs and Section 122 global surcharges. Businesses involved in steel, aluminum, lumber, automobile and automotive parts, medium and heavy-duty trucks and truck parts, copper, and semiconductors may continue to operate with rising or unpredictable input costs, new and shifting compliance obligations, and supply chain adjustments driven by shifting trade patterns. As a result, importers may still experience a disconnect between the Court’s ruling on the IEEPA Tariffs and the practical realities of a continued tariff regime that may still impact their businesses. However, tariffs affect more than just duty rates. They directly impact cargo values, supply chains, pricing, and trade flows, which in turn shape risk exposure across marine, cargo, trade credit, surety, political risk, and other specialty insurance lines. The Court’s decision does, however, provide meaningful clarity with respect to the IEEPA Tariffs. By removing much of the legal volatility and “wait-and-see” uncertainty surrounding that specific authority, it gives market participants a more stable baseline. That said, the broader tariff landscape remains fluid. Sectoral measures and new global surcharges could still introduce volatility. While reduced legal uncertainty around IEEPA Tariffs should allow insurers and reinsurers to price risk and assess exposure with greater confidence, business risk tied to new or evolving trade measures remains.

President Trump’s Response to the Court’s Holding

In response to the Court’s decision, President Trump issued: (i) the IEEPA Terminating Order, which terminated all IEEPA Tariffs; (ii) an executive order continuing the suspension of duty-free deminimis treatment (i.e., low-value shipments (generally valued at $800 or less) remain ineligible for duty-free entry and must be formally entered, declared, and assessed all applicable duties, taxes, and fees); and (iii) the Section 122 Proclamation, which imposed a 10% global surcharge (the Section 122 Tariff), effective at 12:01 a.m. ET on February 24, 2026, and, absent an extension by Congress, remaining in effect through July 23, 2026. The administration has announced its intention to increase Section 122 Tariffs to 15%, but no implementing proclamation or other formal directive has yet been issued.

Unlike the national emergencies that were declared under the IEEPA Tariffs, Section 122 Tariffs are framed as a temporary import duty expressly limited to addressing “large and serious” balance-of-payments deficits or preventing significant deterioration in the U.S. balance-of-payments position. Its justification is macroeconomic stabilization. Section 122 allows the president to impose up to a 15% ad valorem surcharge on most imports for a period of up to 150 days (unless extended by Congress), and it does not require the type of formal investigation that Sections 201, 232, or 301 mandate.

The Section 122 Tariff does not apply to goods that: (i) were loaded onto a vessel at the port of loading and were in transit on the final mode of transit prior to entry into the U.S. before 12:01 a.m. ET on February 24, 2026, and (ii) are entered for consumption, or withdrawn from warehouse for consumption, before 12:01 a.m. ET on February 28, 2026.

The Section 122 Tariffs apply broadly to articles imported into the U.S., with exceptions for the following categories of products:

Certain critical minerals, metals used in currency and bullion, energy, and energy products;
Natural resources and fertilizers that cannot be grown, mined, or otherwise produced in the U.S. (or in sufficient quantities to meet domestic demand);
Certain agricultural products, including beef, tomatoes, and oranges;
Pharmaceuticals and pharmaceutical ingredients;
Certain electronics;
Passenger vehicles, certain light trucks, certain medium and heavy-duty vehicles, buses, and certain parts of passenger vehicles, light trucks, heavy-duty vehicles, and buses;
Certain aerospace products; and
Informational materials (e.g., books), donations, and accompanied baggage.

Goods that qualify for duty-free treatment under the United States-Mexico-Canada Agreement, as well as textiles and apparel articles that enter duty-free under the Dominican Republic–Central America Free Trade Agreement are also exempt from the Section 122 Tariff.

The Section 122 Tariff applies in addition to other duties (including MFN duties and Section 301 tariffs), but it does not apply to goods already subject to Section 232 tariffs, which include: (i) aluminum articles and their derivatives; (ii) steel articles and their derivatives; (iii) copper and its derivatives; (iv) passenger automobiles and parts; (v) lumber, timber, and their derivative products; (vi) medium and heavy-duty vehicles and parts; and (vii) semiconductors and critical minerals. For steel, aluminum, and copper (including derivative items that contain these metals), Section 122 Tariffs apply to the non-metal components in a manner similar to the IEEPA Tariff framework; however, unlike IEEPA Tariffs, there is no exemption for U.S. content under Section 122 Tariffs.

CBP issued guidance via CSMS #67844987 on February 23 titled, “Imposing Temporary Section 122 Duties,” to guide importers on how to navigate these Section 122 Tariffs. It advises that importers utilize certain HTSUS code sequences based on applicability and potential exemptions of the underlying goods and expressly provides drawback availability.

President Trump has signaled that the Section 122 Tariff is only a first step and that his administration will pursue additional tariff measures under other statutory authorities to recoup revenue and maintain pressure on trading partners. Ambassador Greer, the U.S. Trade Representative (USTR), has indicated that new Section 301 investigations will be initiated that encompass most major trading partners and target areas of concern such as industrial excess capacity, forced labor, pharmaceutical pricing practices, discrimination against U.S. technology companies and digital goods and services, digital services taxes, ocean pollution, and practices related to the trade in seafood, rice, and other products. Businesses should therefore expect continued volatility in U.S. tariff policy over the coming months.

Section 122 as a Transitional Tariff Bridge

Section 122 does not require product-level (or necessarily even country-level) findings. By contrast, Section 232 and Section 301 require more detailed determinations supported by administrative records. During the 150-day window provided by Section 122, the U.S. Department of Commerce and USTR could develop evidentiary records sufficient to support more durable Section 232 and/or Section 301 measures to replace the broader Section 122 Tariff before expiration. As a result, Section 122 functions less as a permanent solution and more as a temporary staging tool for more durable, record-based actions under Section 232 and/or Section 301.

Moving Forward

In light of the Court’s holding and the administration’s swift imposition of Section 122 Tariffs, importers that have paid IEEPA Tariffs may wish to evaluate both (i) their potential refund avenues, and (ii) their exposure under the emerging tariff framework. In particular, companies could:

Identify all imports subject to IEEPA Tariffs, by time period, HTSUS classification, and country of origin, and quantify duties paid under those measures to assess potential refund magnitude.
Review the liquidation status of affected entries and determine where PSCs can still be filed and where protest periods remain open.
Confirm which protests have already been filed and assess whether additional procedural avenues (including new protests or litigation) may be available.
Collect entry documentation, duty payment records, and internal analyses of the tariffs.
Review contracts (supply, sales, and logistics) to ensure tariff-related cost allocations are clear and flexible.
Pursue actions to seek refunds. These could include a number of parallel avenues for relief:
- Legal action before the CIT.
- Legal action against companies to which tariff-related charges were paid.
- Negotiations with contractors, suppliers, and other partners to recover tariff-related charges.

We do not anticipate that the Court’s decision will affect CBP’s enforcement activities. CBP is expected to continue actively enforcing existing tariffs to ensure full collection and compliance, with ongoing coordination alongside the U.S. Department of Justice’s cross-agency Trade Fraud Task Force. This means importers should continue to take reasonable steps to help ensure compliance with all applicable U.S. customs laws and regulations and maintain proper documentation to mitigate enforcement risk.

[1] This decision stemmed from a District Court of the District of Columbia judgment that was vacated and remanded by the Court with instructions to dismiss for lack of jurisdiction because these challenges belong in CIT.

[2] This Court holding affirmed the U.S. Court of Appeals for the Federal Circuit decision.

Reprinted with permission from the February 24, 2026, edition of The Legal Intelligencer© 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

The standard for proving that damages can be calculated on a classwide basis in securities actions continues to evolve. In recent years, courts have increasingly required plaintiffs to do more than simply defer damages issues to later stages of the case. Instead, at class certification, plaintiffs must show that damages are capable of measurement on a class-wide basis using a common methodology that is consistent with their theory of liability.

Comcast and the Common Damages Model

The U.S. Supreme Court’s 2013 decision in Comcast v. Behrend is the touchstone for how courts must evaluate classwide damages under Rule 23(b)(3), including in federal securities class action cases. In Comcast, the plaintiffs alleged that Comcast implemented a “clustering” strategy by concentrating its cable operations in particular geographic regions and swapping systems outside those regions with competitors in order to enhance market power and charge supra-competitive prices in violation of antitrust laws. The district court certified the class, and the U.S. Court of Appeals for the Third Circuit affirmed. On appeal, Comcast argued that the plaintiffs’ damages model was flawed because it failed to isolate the impact of the single theory of antitrust injury that remained in the case from the impacts of other alleged anticompetitive conduct. The Third Circuit treated this challenge as going to the merits and therefore outside the scope of the class certification inquiry.

The Supreme Court reversed. It held that the class was improperly certified because the plaintiffs’ damages model did not establish that damages were capable of class-wide measurement in a way that aligned with the surviving theory of liability. Plaintiffs constructed a “but-for” baseline for damages—a hypothetical benchmark reflecting what competitive prices would have been absent any antitrust violation—and then calculated damages by comparing that baseline to the actual prices Comcast charged. On its face, this appeared to be a standard, classwide methodology. But the model did not isolate the price effects attributable to other alleged conduct.

Thus, the Supreme Court concluded that individualized questions about why any given subscriber allegedly overpaid would predominate over the common ones and that the plaintiffs therefore failed to satisfy Rule 23(b)(3)’s predominance requirement. Comcast made clear that courts should apply a “rigorous analysis” when determining whether plaintiffs have satisfied Rule 23(b)(3)’s predominance requirement. That analysis, the court explained, extends beyond whether questions of liability can be resolved with common proof. It also requires examining whether damages are measurable on a class-wide basis using a methodology that aligns with the plaintiffs’ theory of liability.

Comcast’s Implications for Securities Class Actions

Although Comcast arose in the antitrust context, its holding has important implications for securities class actions. To bring a claim under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, a plaintiff ordinarily must prove individualized reliance on the alleged misrepresentation. In the class action context, that individual reliance requirement would typically defeat predominance. The Supreme Court in Basic v. Levinson, however, created a rebuttable fraud-on-the-market presumption of reliance. Under Basic, if a security trades in an efficient market, courts presume that the market price reflects all publicly available information, including any misrepresentations. Investors are presumed to rely on the integrity of the market price when they buy or sell securities, and thus are presumed to have relied on any misrepresentation that affected that price.

This presumption allows reliance to be established on a classwide basis. However, the defendants may rebut it and defeat class certification by demonstrating that the alleged misrepresentation had no impact on the security’s price through a preponderance of the evidence. While Basic supplies a common mechanism for proving reliance, Comcast polices the fit between the theory of liability and the damages methodology. In securities class actions, these concepts typically intersect through questions of price impact.

The Supreme Court’s decision in Goldman Sachs Group v. Arkansas Teacher Retirement System illustrates how price impact and the Basic presumption interact with class certification and classwide damages. There, the plaintiffs alleged that Goldman maintained an artificially inflated stock price by falsely touting its ability to manage conflicts. At class certification, the plaintiffs invoked the Basic presumption. Goldman sought to rebut that presumption by offering evidence that the alleged statements had no impact on its stock price.

The district court held that Goldman had not shown a lack of price impact and certified the class. The Second Circuit affirmed, holding that the defendant bears the burden of persuasion to show that the alleged misrepresentations had no price impact. The Supreme Court held that when a defendant seeks to “sever the link” between an alleged misrepresentation and the stock price by demonstrating a lack of price impact, the defendant bears the burden of persuasion on that issue. At the same time, the court emphasized that the allocation of the burden is unlikely to make much of a difference. The defendant’s burden of persuasion “bites” only in narrow circumstances, such as when the evidence is “in equipoise.”

‘In re FirstEnergy’ and the Need for a Claim-Specific Damages Model

Other circuits have embraced Comcast in the context of a securities class action. An emphasis on Comcast’s rigorous analysis requirement appears in In re FirstEnergy Corporation Securities Litigation. There, the plaintiffs alleged that FirstEnergy failed to disclose a fraudulent scheme and that this nondisclosure artificially inflated the company’s stock price. The plaintiffs asserted claims under both the Securities Act of 1933 and the Securities Exchange Act of 1934. The district court certified the class and, in addressing predominance, discussed plaintiffs’ damages model for their Securities Act claims, which benefit from statutory damages formulas. The court then assumed that the same reasoning applied to the plaintiffs’ Exchange Act claims.

On appeal, the Sixth Circuit held that the district court failed to conduct the rigorous Comcast analysis required for the Exchange Act claims. The court emphasized that the Securities Act and the Exchange Act are distinct statutes with different damages frameworks. The Securities Act provides statutory formulas, while the Exchange Act requires proof of loss causation and does not specify a damages formula. As a result, a damages model adequate for Securities Act claims does not necessarily satisfy Comcast for Exchange Act claims. Because the district court did not analyze whether plaintiffs’ proposed damages methodology could measure class-wide damages for their Exchange Act claim, the Sixth Circuit remanded for a proper Comcast analysis.

‘Boeing’: The Fourth Circuit Is Poised to Weigh In

The ongoing litigation in In re The Boeing Company Securities Litigation also illustrates how these issues are playing out in other circuits. Following two deadly plane crashes, Boeing’s stock price declined, and plaintiffs filed a putative class action alleging that Boeing made false and misleading statements about safety, thereby artificially inflating its stock price.

The district court held that plaintiffs satisfied Comcast by proposing an “out-of-pocket” measure of damages—i.e., the difference between the price investors actually paid and the price they would have paid absent the alleged fraud. The court further held that the plaintiffs were not required to present a detailed damages model at the class certification stage.

Boeing appealed, arguing that Comcast requires more: plaintiffs must present a concrete, classwide methodology for calculating damages that is consistent with their theory of liability. The Fourth Circuit granted interlocutory review and has not yet issued a decision. Its ruling will be an important data point on how far Comcast’s “rigorous analysis” requirement extends in securities cases. If the Fourth Circuit adopts Boeing’s position and demands detailed damages modeling at the class certification stage, class certification in securities cases could become more challenging, at least in the Fourth Circuit. If, instead, the Fourth Circuit upholds the district court’s more flexible approach, plaintiffs will have greater leeway to satisfy Comcast without fully developed damages models early in the litigation.

Takeaways

The Third Circuit decided this issue differently in San Diego County Employees Retirement Association v. Johnson & Johnson. In our view, the Sixth Circuit’s approach adheres more closely to Comcast’s requirements. The Supreme Court is likely to resolve this emerging circuit split in due course. With key appellate decisions still forthcoming, litigants should closely monitor how courts continue to refine and apply Comcast in the securities class action context.

Comcast and the Common Damages Model

Comcast’s Implications for Securities Class Actions

‘In re FirstEnergy’ and the Need for a Claim-Specific Damages Model

‘Boeing’: The Fourth Circuit Is Poised to Weigh In

Takeaways

Reprinted with permission from the February 23, 2026, edition of the New York Law Journal© 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

The U.S. Department of Labor has drafted a regulation governing the status of workers as independent contractors (ICs) or employees under the Fair Labor Standards Act (FLSA), and the new rule is reportedly undergoing White House review. A notice of proposed rulemaking is expected to be issued soon. Will the proposed regulation have any legal significance, or can you disregard it? Businesses, worker organizations, and commentators have gotten dizzy over the past ten years by the back-and-forth changes to federal regulations regarding the FLSA’s test for IC status. The Obama administration’s guidelines were overwritten by the first Trump administration’s regulations, which were then overwritten by the Biden administration’s regulations, which are likely to be overridden soon by the upcoming proposed regulations by the second Trump administration.

Why should businesses that use ICs disregard the legal significance of upcoming regulations? And why should worker organizations take comfort that the anticipated regulations will not alter the legal landscape for IC compliance and misclassification? First, the Labor Department does not decide IC status under federal law; the federal courts do. Each of the federal appellate circuits has, for decades, articulated its own tests for IC status, and each of those tests is roughly similar to each other. Second, the past regulations by both the first Trump administration and the Biden administration were little more than an interpretation of selected federal appellate court decisions, yet the courts routinely apply their own judicial precedent and do not need an agency to interpret their opinions.

If, as expected, the new regulation again is simply an interpretation of court decisions by the current administration, it too will likely be disregarded by the federal courts. Indeed, no court has yet relied upon any of the prior Labor Department regulations in deciding the merits of an IC misclassification case. Third, most litigation in the U.S. alleging IC misclassification is based at least in part on state laws, and federal regulations have no impact on the various state law tests for IC status. Nonetheless, the upcoming regulation should prompt prudent businesses to enhance their IC compliance in the manner discussed in the “takeaway” at the end of this article.

The Prior Interpretations and Regulations

Few legal issues have been so blatantly subjected to political ping pong at the federal level over the past 10 years than the status of workers as ICs or employees.

The Obama Administration Interpretation

On July 15, 2015, during the tail end of the Obama administration, the Wage and Hour Administrator of the U.S. Department of Labor issued an “Administrator’s Interpretation” on IC status providing comprehensive guidelines on IC status under the FLSA. As we noted in a blog post that day, the new Interpretation “contains nothing new, different, or dramatic.” We added: “In fact, the new Interpretation does little more than restate the same… factors that have historically been applied by the Labor Department and that can still be found on its website.” We commented that the new Interpretation, however, placed far greater emphasis than do the courts on “a worker’s ‘economic dependence’ on the business that has engaged his or her services,” a factor that favors employee status. We observed that, by doing so, the Interpretation overlooked governing judicial precedent.

The First Trump Administration’s Regulation

In early June 2017, less than five months after the start of the Trump administration, the Labor Department withdrew that Administrator’s Interpretation and thereafter began working on the issuance of a formal rule on IC status. On Jan. 6, 2021, only two weeks before the conclusion of the first Trump administration, the Labor Department issued a final rule governing IC status under the FLSA. The 2021 rule noted that the courts typically examine five factors to determine IC status, but expressly stated that two factors should be given greater weight: (1) the nature and degree of the individual’s control over their work; and (2) the individual’s opportunity for profit or loss.

The regulation referred to those as “core factors” and pronounced that the remaining three factors, referred to as “non-core” factors, should be given less importance: the amount of skill required for the work; the degree of permanence of the working relationship; and whether the work is part of an integrated unit of production.

Notably, the illustrations in the final 2021 rule issued by the first Trump administration focused on factual scenarios and court decisions that favored IC status. As we observed in a blog post on the day the final regulations were issued, “unlike most regulations with hard and fast rules, th[is] proposed regulation was in the nature of an administrative interpretation comprising the Labor Department’s review of existing court decisions and its articulation of a preferred legal analysis.” We predicted that, as a result, “courts would give little if any deference to it.”

The Biden Administration’s Regulation

In May 2021, only four months after the start of the Biden administration, the U.S. Department of Labor issued a rule that withdrew the Trump administration’s regulation on IC status. That rule was immediately challenged in court. Meanwhile, the Biden Labor began its own version of a regulation governing IC status. On Jan. 9, 2024, the Labor Department issued a new final rule on IC status under the FLSA. It rejected the Trump administration regulation that gave greater weight to two factors and instead focused on a “totality-of-the-circumstances” approach in which none of the factors have a predetermined weight.

The most meaningful impact of this approach was the Biden administration’s effort to place more weight on one of the three “non-core” factors: whether the work is integral to the employer’s business. This factor almost universally favors employee status, thereby causing many courts to give it less weight than the other factors used to determine IC status. As we noted in our blog post on the day the Biden regulation was issued, “it is unlikely the courts will change their precedent and give more weight to that factor.” No courts have relied on that 2024 rule in deciding if a worker is an IC or employee.

There have been as many as five lawsuits seeking to enjoin the Biden 2024 rule, but all have been paused after the second Trump administration filed court papers in those cases advising the courts that it was seeking to rescind the 2024 rule issued by the Biden administration.

The Upcoming Second Trump Administration Regulation

It is anticipated that the current Trump administration’s rule on IC status under the FLSA will mirror to a large extent the approach taken five years ago in the regulation issued by the Labor Department in the first Trump administration—a rule that was essentially the Trump administration’s interpretation of court decisions, with emphasis on the two “core” factors identified in the 2021 rule. If so, one should expect that the courts will continue to ignore Labor Department regulations on IC status and instead follow their own well-established precedents.

Another reason why the anticipated IC regulations will have an insignificant impact legally is that the position of the U.S. Department of Labor on the issue has virtually no influence on state laws, which vary considerably on the test for IC status. The overwhelming number of state laws permit the legitimate IC arrangements, although a few state laws strictly curtail all types of IC relationships. Thus, the upcoming federal regulation will not likely impact the legal status of the nearly 12 million U.S. workers who identified themselves as engaged in an IC relationship, according to a November 2024 study by the U.S. Department of Labor.

Conclusions and Takeaways

Many commentators will likely report that this upcoming regulation on IC status under federal law will increase the use of ICs by many businesses, including the gig economy, which is one industry sector that makes great use of workers that companies classify as ICs. Another industry that will likely welcome the new regulation is transportation, which relies heavily on owner-operators, who transport companies classify as ICs.

That industry has been the subject of countless IC misclassification lawsuits by certain state agencies and plaintiffs’ class action lawyers in courts around the country. It is anticipated, however, that the issuance of the new regulation on IC status will have no meaningful impact on the end-result of IC misclassification lawsuits, the bulk of which are brought under state law in whole or in part.

For companies that rely on the use of ICs, prudence suggests that the issuance of the new regulation governing IC status of workers should not be treated as some type of assurance that their IC relationships will more likely withstand scrutiny under federal and state laws governing IC status. Plaintiffs’ class action lawyers and state government agencies will hardly be deterred by a new federal IC rule that will have little to no impact on IC misclassification cases.

Rather, the renewed focus on IC status should serve as an impetus for companies using ICs to enhance their compliance with IC laws, particularly state laws governing IC status. Companies seeking to do so may wish to use a process that structures, documents, and implements IC relationships to maximize IC compliance in a customized and sustained manner.

Over the past year, federal and state courts across the U.S. have continued to reshape the landscape of professional liability insurance. From high-stakes coverage battles to nuanced interpretations of policy language, 2025 delivered a breadth of notable decisions addressing a wide variety of coverage issues that every insurer, broker, risk manager, and coverage practitioner needs to understand. In this report, we focus on topics we believe will remain important in the professional liability insurance field and hope you find the following selection of cases both informative and helpful.

Topics covered in this report include:

Notice
Related Claims
Prior Knowledge, Known Loss, and Rescission
Prior Acts, Prior Notice, and Pending and Prior Litigation
Dishonesty and Personal Profit Exclusions
Restitution, Disgorgement, and Damages
Insured Capacity
Insured v. Insured Exclusion
Coverage for Contractual Liability
Professional Services
Independent Counsel
Advancement of Defense Costs
Allocation
Recoupment of Defense Costs and Settlement Payments
Consent

Access the full report here, and feel free to share it with your contacts who may have an interest in its content.

Please join us Wednesday, February 25, 2026, as we discuss some of these notable decisions during our webinar, “Notable Professional Liability Insurance Decisions of 2025.” We hope you can participate. To register, please click here.

On February 6, the U.S. Department of the Treasury (Treasury) issued a request for information (RFI) seeking public comment on a proposed Known Investor Program and how it could streamline the Committee on Foreign Investment in the United States (CFIUS) review process.

The RFI does not itself change the current legal, regulatory, or policy landscape. Instead, Treasury is soliciting input from investors, U.S. businesses, and other stakeholders to inform potential reforms, while preserving CFIUS’s rigorous national security review. This RFI creates a unique opportunity for parties that routinely interact or anticipate interacting with CFIUS to highlight pain points and propose practical recommendations. Comments are due March 18.

CFIUS Open to Suggestions

The RFI centers on the concept of the Known Investor Program previewed under President Trump’s America First Investment Policy (discussed here) and later announced as the Known Investor Portal by Treasury in May 2025 (discussed here too). Under the program, foreign investors could be “pre‑profiled” or pre‑vetted by CFIUS outside the context of a specific transaction.

According to the RFI, CFIUS launched the Known Investor Pilot Program that “engaged with a representative sample of foreign investors who are among the most frequent repeat filers with CFIUS and are from different countries of origin.” On a voluntary and confidential basis, these participants were asked to submit a questionnaire with information that “builds upon and is more extensive than” what is currently requested by CFIUS and to provide feedback on the efficiency of the CFIUS process.

As proposed, CFIUS envisions collecting detailed information, in a questionnaire format, that includes:

Complete legal and economic ownership information, including its governance structure;
Information about the potential foreign investor’s personnel and operations of its business, including information on key personnel;
Financial operation information, including revenue and governance decisions;
Detailed information on any engagement with U.S. government work, including compliance information; and
Information on investment partners, financial funds, or any other relationships that are needed to assess verifiable distance from Adversary Countries listed as the People’s Republic of China, including the Hong Kong Special Administrative Region and the Macau Special Administrative Region; Cuba; Iran; North Korea; Russia; and the regime of Venezuelan politician Nicolás Maduro.

This information would be used to assess whether an investor is an appropriate candidate for a “known” status. Treasury also anticipates introducing a baseline requirement for eligibility: foreign investors that have submitted at least three distinct transaction filings within the past three years and received a “concluded all action” or “not able to conclude action.”

There are also proposed disqualifiers, including whether a filer:

Has violated a material provision of a CFIUS mitigation agreement;
Appears on a U.S. government entity list (e.g., Military End User List for Department of Commerce’s Bureau of Industry and Security or Treasury’s Office of Foreign Assets Control’s Specially Designated Nationals List), or
Has certain business relationships tied to Adversary Countries (China, Cuba, Iran, North Korea, and Russia), such as:
- Members of board of directors from Adversary Countries.
- Equity interests of 25% or more held by individuals or entities from Adversary Countries.
- Manufacturing facilities located in one or more Adversary Countries, defined as the People’s Republic of China, including the Hong Kong Special Administrative Region and the Macau Special Administrative Region; Cuba; Iran; North Korea; Russia; and the regime of Venezuelan politician Nicolás Maduro.

In return, Treasury expects that the Known Investor Program will introduce potential benefits to the CFIUS process, such as more efficient case handling and reduced repetitive information requirements for transactions involving Known Investors. At the same time Treasury emphasizes that each transaction would continue to be reviewed on its own facts and national security risks.

Beyond the Known Investor concept, Treasury is asking for concrete suggestions on streamlining CFIUS practice more broadly. The RFI invites input on:

Improving timelines and transparency in case reviews.
Handling of non‑notified transactions.
Design and administration of mitigation agreements.
Use of technology and standardized forms to reduce burden and uncertainty for transaction parties.

Why the RFI Matters

CFIUS has jurisdiction over a broad range of transactions involving foreign investors — including not only traditional M&A in sensitive sectors, but also minority investments, joint ventures, and certain real estate transactions. Changes that emerge from this RFI could affect deal timing and predictability of CFIUS clearance, the scope and depth of information that counterparties must be prepared to share, and how mitigation obligations are structured, implemented, and monitored. Each CFIUS matter, however, must still be evaluated on its individual merits, and a detailed national security risk assessment is required. Therefore, it is unlikely that the Known Investor Program will result in broad CFIUS preclearance.

For foreign investors and fund sponsors that consistently engage with CFIUS, participating in the Known Investor Program could become a competitive differentiator, potentially easing CFIUS concerns for portfolio company acquisitions or divestitures. For U.S. sellers of businesses, assets, or real property, the status and risk profile of the foreign buyer — and whether that buyer is “known” to CFIUS — may increasingly influence deal timing, conditionality, and even purchase price.

In the near term, the RFI presents an opportunity to help shape the rules of the road for the next phase of CFIUS practice. Foreign investors that are frequent CFIUS filers should consider whether the contemplated program would be attractive in light of the significant upfront disclosure it envisions and may wish to comment on eligibility criteria, confidentiality and information protections, and the scope and reliability of benefits associated with Known Investor status. U.S. businesses that regularly engage with foreign buyers or investors may also want to comment on ways CFIUS can improve communication, predictability, and mitigation design in ways that preserve national security, while supporting legitimate capital flows.

Troutman Pepper Locke can assist clients in evaluating whether and how to respond to the RFI, including tailoring comment letters to specific industries, investor profiles, and transaction types. We can help assess the potential impact of the Known Investor Program and related process changes on your deal planning, diligence, and risk allocation, develop strategies for positioning investors and U.S. businesses favorably in light of potential CFIUS reforms, and prepare and submit comments that reflect your commercial objectives while addressing CFIUS’s national security concerns.

This article was originally published on The Legal Intelligencer and is republished here with permission as it originally appeared on February 20, 2026.

Introduction: From Legal Framework to Practical IR Teams

This is the second article in a three-part series on FirstEnergy and incident response (IR). In the first article, “FirstEnergy and Incident Response: Preserving Privilege in Cyber Investigations,” we walked through four key legal lessons from the U.S. Court of Appeals for the Sixth Circuit’s decision in In re FirstEnergy and how they apply to cyber investigations, including:

Engaging counsel at the outset of the investigation;
Ensuring counsel meaningfully directs the investigation;
Recognizing that dual legal and business purposes do not automatically defeat privilege or work product protection; and
Understanding that sharing information with “friendly” third parties does not automatically waive the attorney-client privilege and work product protections.

This article takes the next step and focuses on what businesses can do before an incident to structure their vendor relationships and IR plans in alignment with these key legal lessons. We focus on four core IR vendor types: digital forensics vendors, restoration vendors, public relations (PR)/communications firms, and data mining/data review vendors.

Digital Forensics Vendor

Digital forensics (DFR) vendors are often one of the first external experts engaged in a cyber investigation. Their objectives typically include ensuring the incident has been contained and the bad actor is no longer in the system; identifying the root cause of the incident; and determining what the threat actor may have done or taken while in the environment.

Viewed through the lens of FirstEnergy, a carefully structured DFR engagement can strengthen the argument that investigation qualifies for attorney–client privilege and work product protection. The engagement should be designed to promote open and candid dialogue among the DFR vendor, the business, and counsel, so that underlying nonprivileged facts helpful to the investigation can be fully surfaced. At the same time, those discussions may touch on potentially damaging context—such as the rationale for not implementing a particular security control, beyond the simple fact that it was not in place.

Although the underlying facts (e.g., indicators of compromise or the presence of malware) themselves may not be protected, there can still be sensitive communications about those facts that businesses will want to keep privileged. To best preserve these protections, it may be advisable to handle such discussions verbally and in consultation with counsel, so they directly inform the provision of legal advice.

FirstEnergy highlighted that privilege and work-product protection turn not just on using a vendor, but how that vendor is engaged and used in the investigation. To apply these lessons before an incident occurs, businesses should consider:

How are DFR vendors currently engaged by the business—through the security team (for example, via a retainer) or at the direction of legal—and has the organization considered whether that approach supports counsel’s role in directing and relying on the investigation?
Is the security team aware of legal’s role in engaging and directing DFR vendors, and do they know who to contact and when if an incident arises?
What is the process for requesting, drafting, reviewing, and distributing forensic reports (including who receives them and in what form), and is that process designed to support applicable privilege and work-product protections?

The initial stages of an incident move quickly—often within hours of discovery. Having clear answers to these questions in advance will help to reduce the risk that businesses will be trying to figure out “who do we use and how do we engage them” in the middle of a crisis.

Restoration Vendor

Restoration vendors’ are typically tasked with rebuilding and hardening affected systems, restoring backups, and helping resume business operations safely. They may be engaged directly by IT or operations, operate as a separate workstream alongside the forensic vendor, or serve as a subcontractor dedicated solely to restoration. Under FirstEnergy’s framework, however, even activities such as these that may appear purely operational can carry significant legal implications. Restoration-related decisions, such as what to restore, in what order, on which systems, and using which methods, can directly affect the preservation of evidence and logs, the integrity and completeness of the forensic record, and the organization’s ability to satisfy regulatory or contractual obligations (including notice, reporting, downtime, data retention, and mitigation requirements). As a result, restoration planning and execution should be coordinated with legal and forensic teams to help ensure that business recovery efforts do not inadvertently compromise evidence or undermine the company’s position in anticipated litigation, regulatory inquiries, or contractual disputes.

Against that backdrop, similar considerations arise for how organizations structure and document their communications with restoration vendors.

As with DFR vendors, open and candid communications are important to accurately understanding the underlying facts and technical decisions, but businesses may not want those strategic discussions to be discoverable. To best protect the legal posture around a vendor’s restoration work, businesses should consider:

Does the business currently have a restoration vendor on retainer, and if so, how might that arrangement affect the argument that the vendor’s work is part of a counsel-directed legal investigation? Having a vendor on retainer is not inherently problematic, but when legal is the driving force behind the engagement, additional steps, such as clearly documenting counsel’s direction, scoping the work in legal terms, and channeling communications through or at the direction of counsel, may be advisable to support privilege and work-product arguments.
How will the organization ensure that forensic findings are shared with the restoration vendor in a manner that is deliberate, limited to what is necessary, and consistent with maintaining applicable legal privileges and protections?
Is there a clear process requiring the restoration vendor to consult with counsel or the forensic team before taking steps, such as wiping, reimaging, or rebuilding systems, that could affect the preservation of evidence or logs, and are those decisions appropriately documented?

Public Relations

Incidents often result in media attention and how you manage communications directly affects potential legal exposure and regulatory scrutiny. Additionally, what you say, who you say it to, and when, will also affect potential legal exposure, and those statements will often be carefully scrutinized later in litigation for any purported misrepresentations. Accordingly, businesses often engage public relations (PR) firms to help craft strategies with the legal issues in mind. They often assist with drafting public statements, FAQs, website content, and media responses, and advise on messaging to customers, investors, employees, and other stakeholders.

FirstEnergy supports a structure in which counsel may share factual information with aligned third parties, such as PR firms, without automatically waiving privilege or work product protection over legal analysis and strategy. Even if privileged information is shared, the FirstEnergy Court emphasized that work product protection is more likely preserved where the recipient is not an adversary, is contractually bound to maintain confidentiality, and is aligned with the company’s interests—circumstances that typically describe a third-party PR or communications vendor.

Although publicly shared communications that a PR firm helps develop may not be privileged, businesses still have key considerations in protecting the underlying strategy and planning that go into crafting those statements.

Has the organization considered structuring the PR firm’s engagement in a way that helps clarify the PR firm’s role in supporting legally informed communications?
Are there clear confidentiality obligations and communication protocols in place (e.g., NDAs, limited distribution lists) to ensure that sensitive factual information, legal strategy, and draft messaging shared with the PR firm are protected and not disseminated more broadly than necessary?
Is there a defined process for drafting, revising, and approving public statements, FAQs, website content, and press releases that ensure legal review at appropriate stages and creates a defensible record of how key messaging decisions were made?
Is the organization maintaining a clear separation between internal legal/strategic discussions and the final public statements, so that privileged analysis and risk assessments are not embedded in materials that are intended to be shared externally?

When structured properly, a PR engagement allows the company to weave legal strategy into its incident-related communications so that they do more than address PR and reputational concerns – they also thoughtfully manage legal risk. Done right, this approach helps ensure that the underlying legal analysis and strategy discussions remain protected, even as the organization communicates effectively with external audiences.

Data Mining Vendor

Data mining vendors play a specialized role in incident response. Their core task is to analyze the data potentially implicated in an incident to determine whose information may be involved and to what extent (for example, name, date of birth, or other identifiers). Counsel then relies on these findings to determine which breach notification laws are triggered, who must be notified, and by what deadlines. The same analysis also informs counsel’s assessment of the incident’s potential litigation and enforcement risk.

Whether particular data elements constitute protected health information (PHI) or personally identifiable information (PII) under specific laws is ultimately a legal question, but one that depends heavily on the vendor’s technical analysis. As with the law firm’s work in FirstEnergy, a data mining vendor is doing more than simply collecting or transmitting raw facts; it is assembling and structuring those facts so that counsel can answer legal questions about notification requirements and potential liability. In practice, the data mining workstream often combines the organization’s institutional knowledge of its data environment, the forensic team’s findings, and counsel’s legal analysis into a single, integrated effort.

To better position this work for privilege and work-product protection, businesses should consider:

How are data mining deliverables that may reveal legal strategy—such as search term protocols, data dictionaries, and lists of identified or potentially affected individuals—being drafted and shared?
Is counsel taking the lead in translating the data mining vendor’s technical outputs into legal conclusions about the scope of notification, as well as broader strategy and risk assessments for potential litigation and regulatory inquiries?
What is the organization’s process for sharing—and limiting the sharing—of data mining outputs so that counsel’s legal analysis remains protected, while necessary factual information can still be provided to vendors, internal teams, and other external parties to support the response?

Managing the Whole IR Expert Ecosystem Under ‘FirstEnergy’

A core element of incident response is not just engaging the right experts, but coordinating their work in a way that consistently applies legal principles like those articulated in FirstEnergy. That coordination cannot be improvised in the middle of a crisis. Training and tabletop exercises are practical tools for testing how, in real time, the organization escalates issues to counsel, routes requests for forensic, restoration, and PR support, and documents the legal purpose of those engagements. Well-designed exercises also help teams spot where privilege might inadvertently be put at risk—for example, through informal email threads, broad distribution of forensic findings, or unclear roles for outside vendors—and allow the organization to refine playbooks, engagement letters, and communication protocols before those weaknesses are exposed during an actual incident. By building these practices into routine preparedness activities, businesses can strengthen both their operational response and their ability.

Sadia Mirza, a partner with the Troutman Pepper Locke, leads the firm’s incidents + investigations team, advising clients on all aspects of data security and privacy issues. She is the first point of contact when a security incident or data breach is suspected, and plays a central role in her clients’ cybersecurity strategies.

Tim St. George,a partner with the firm, defends institutions nationwide facing class actions and individual lawsuits. He has particular experience litigating consumer class actions, including industry-leading expertise in cases arising under the Fair Credit Reporting Act and its state law counterparts, as well as litigation arising from data breaches.

Kaitlin Clemens, an associate based in the firm’s Philadelphia office, handles ransomware and data extortion cases, and advises on compliance with state and federal laws, including HIPAA, FERPA, and GLBA, as well as development of privacy programs and pre-incident response strategies, as well as creating and delivering comprehensive training for attorneys who are new to cybersecurity.

Reprinted with permission from the February 20, 2026 edition of The Legal Intelligencer. © 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For permission to reprint or license this article, please contact 877-256-2472 or asset-and-logo-licensing@alm.com.

This article was originally published on Law360 and is republished here with permission as it originally appeared on February 20, 2026.

When a client receives a civil investigative demand, or CID, or equivalent subpoena from a state attorney general, the first question is always some version of “how can we move to quash this subpoena?”

Our team’s reaction has historically been that federal law affords affirmative defenses grounded in the First Amendment or preemption that, while strong theoretically, are not likely to be effective for a number of reasons. In particular, such affirmative defenses are not ripe for review in a federal trial court until a state judge first considers them.

If that state judge issues an adverse ruling, however, any subsequent federal lawsuit seeking to raise the issue is likely subject to dismissal under the Anti-Injunction Act or on so-called abstention grounds. In other words, the client faces a classic dilemma that will not be ripe for consideration by a federal trial judge until it is moot.

That apocryphal adage holds considerable truth for businesses presented with a CID from a state attorney general that implicates First Amendment protections or otherwise inquires into matters that are beyond a state’s authority to investigate due to preemption by federal law.

State attorney general CIDs and investigative subpoenas are almost invariably subject to challenge only in the courts of the issuing attorney general’s home jurisdiction, even where there is a strong argument that a burdensome state investigation is barred by federal law.

The choice is either to prioritize negotiated narrowing and protective conditions over wholesale resistance — often the most effective strategy — or to raise federal constitutional and preemption arguments in a challenge to the state’s investigation in the trial and appellate courts of the attorney general’s home state. Usually, such a challenge is a losing proposition, with the unlikely possibility of an appeal to the U.S. Supreme Court from a final state court decision as the only potential avenue for a federal forum.

The Supreme Court’s forthcoming opinion in First Choice Women’s Resource Center v. Platkin could be a harbinger of significant change, but even if the petitioner is successful in First Choice, recent decisions and filings in ongoing challenges to enforcement actions by the Virginia and Massachusetts attorneys general underscore the uphill battle businesses still will face in getting a federal judge to hear their argument that a state investigation is prohibited by federal law.

Procedural Posture Matters: Where and How You Litigate CID Challenges

In our experience, federal courts are reflexively reluctant to block or limit investigations by a state attorney general acting in its parens patriae capacity in furtherance of well-established state public health and welfare prerogatives like the enforcement of their state’s consumer protection laws.

Accordingly, federal judges generally actively search for ways to avoid reaching the merits of arguments that a state attorney general investigation should be enjoined or blocked, dismissing such claims on grounds of ripeness (i.e., the state court has not yet acted to enforce the CID); the Anti-Injunction Act, which generally forbids federal courts from enjoining proceedings in a state court, subject to narrow exceptions; or the various abstention doctrines, rooted in principles of federal-state comity, which preclude attempts to obtain federal judicial review of ongoing state administrative or judicial proceedings.

The First Choice matter’s path to the Supreme Court is illustrative. The dispute arises out of a November 2023 investigative subpoena by New Jersey Attorney General Matthew Platkin to First Choice Women’s Resource Centers, a collection of faith-based pregnancy centers, seeking broad categories of documents related to the solicitation of donations, including donor names and contact information.

According to New Jersey’s Supreme Court brief, the state investigation seeks information regarding whether First Choice violated state laws concerning consumer fraud, solicitation requirements for charitable organizations, and the unlicensed practice of medicine “by misleading donors and potential clients into believing that it was providing certain reproductive health care services.” First Choice denies any violation.

In December 2023, First Choice filed a lawsuit against Platkin in the U.S. District Court for the District of New Jersey under Title 42 of the U.S. Code, Section 1983, the primary federal right of action for private persons and businesses claiming violations by state or local officials of civil rights guaranteed under the U.S. constitution, and a notable exception to the Anti-Injunction Act.

The organization’s suit alleges that Platkin’s subpoena violated its First Amendment rights and seeks declaratory and injunctive relief.[1] However, the District Court of New Jersey dismissed the complaint as unripe because a state court had not yet issued an order enforcing the subpoena.[2]

First Choice appealed to the U.S. Court of Appeals for the Third Circuit. While that appeal was pending, however, Platkin brought an enforcement action against the organization in New Jersey Superior Court, which ordered First Choice to “respond fully to the Subpoena.” The organization has produced some documents but objected to other demands, and state proceedings are ongoing.

The Third Circuit dismissed the appeal as moot due to the state-court order and remanded. On remand, First Choice argued that the attorney general’s state-court enforcement suit and the state-court order requiring it to respond to the subpoena meant that its claims were ripe for review, but the district court rejected the argument and dismissed the matter again, finding that the subpoena had not yet been enforced.[3]

The Third Circuit affirmed in a December 2024 opinion.[4] It concluded that the suit is not ripe because First Choice:

can continue to assert its constitutional claims in state court as that litigation unfolds; the parties have been ordered by the state court to negotiate to narrow the subpoena’s scope; they have agreed to so negotiate; the Attorney General has conceded that he seeks donor information from only two websites; and First Choice’s current affidavits do not yet show enough of an injury.

The Third Circuit also expressed a belief that “the state court will adequately adjudicate First Choice’s constitutional claims.” The Supreme Court heard the case in early December 2025. A decision is expected in June 2026.

Notably, the U.S. solicitor general submitted an amicus brief in support of First Choice, arguing that “[a] party has standing to challenge a subpoena, and such a challenge is ripe, if the party faces a credible threat that the government will bring proceedings to enforce the subpoena.”

The solicitor general contends that the Third Circuit’s decision “puts petitioner in a Catch-22: If petitioner sues in federal court before litigating the state case, its claim will be unripe, but if it sues in federal court after litigating the state case, its claim could be precluded.”

Meanwhile, a coalition of state attorneys general led by Massachusetts characterizes First Choice’s argument as seeking “early access to federal court upon receipt of a state attorney general pre-litigation subpoena or CID,” which the attorneys general argue would subvert their confidential investigative processes and “subject state attorneys general to unnecessary and expensive federal litigation, even where the subpoena has yet to be negotiated, narrowed, or enforced.”

A finding for New Jersey could, for all practical purposes, require claims that a state attorney general CID intrudes upon interests protected by the First Amendment to be litigated in state trial and appellate courts in virtually all instances, with a petition for certiorari to the Supreme Court from the conclusion of those proceedings the only potential avenue for obtaining federal court review.

A ruling for First Choice could be a seminal event for the small group of state attorney general practices, but the potential effect of the decision is nonetheless unclear.

To the extent the Supreme Court rules for First Choice, will the court focus narrowly on so-called first-filed actions under Title 42 of the U.S. Code, Section 1983, by nonprofit organizations, trade groups or industry associations seeking to prevent alleged First Amendment violations involving donor list demands, or will the opinion have broader application?

Preemption is not in issue in First Choice. Consequently, the Supreme Court’s decision in that matter is unlikely to have any effect on preemption cases.[5]

Doctrine Comparison: First Amendment Versus Federal Preemption

The light at the end of the tunnel: Where the First Amendment is reasonably asserted by a targeted entity, the First Amendment provides substantial protection.

For instance, notwithstanding the existence of parallel state court proceedings, the U.S. District Court for the Eastern District of Virginia preliminarily enjoined the Virgina attorney general’s investigation into possible violations of the Virginia Solicitation of Contributions law by AJP Educational Foundation Inc., dba American Muslims for Palestine, a nonprofit organization that describes its mission as educating the American public about the cultural, historical and religious heritage of Palestine. The CID seeks information about American Muslims for Palestine’s activities, finances and donors.

American Muslims for Palestine partially complied with the CID but brought a petition to modify or set aside the demand in the Richmond City Circuit Court, challenging the constitutionality of the CID’s scope, particularly the demand for donor information. The state court denied American Muslims for Palestine’s petition and ultimately issued a contempt order against the nonprofit for noncompliance.

American Muslims for Palestine appealed the contempt order to the Court of Appeals of Virginia, which on Dec. 9, 2025, denied them relief.[6]

While its state appeal from the Richmond City Circuit Court’s contempt order was pending, American Muslims for Palestine filed suit on Oct. 17, 2025 — in AJP Education Foundation Inc. dba American Muslims for Palestine v. Miyares — against Virginia Attorney General Jason Miyares in federal court under Title 42 of the U.S. Code, Section 1983.

Notably, Miyares contended in the Eastern District of Virginia that First Choice has “no bearing on this matter because it will merely decide when a subpoena recipient’s claims are ripe for adjudication in a first-filed action in federal court, and not the propriety of the subpoena requests themselves.”[7]

The federal court stayed enforcement of the Richmond City Circuit Court’s contempt order and enjoined enforcement of the CID “to the extent that it would require the disclosure of information protected by the First Amendment to the U.S. Constitution” until the conclusion of state proceedings.[8]

Miyares sought reconsideration and moved to dismiss on abstention and preclusion grounds. Argued Dec. 5, 2025, the attorney general’s motion to dismiss remains under advisement, although the parties have since reported that they are in discussions regarding narrowing the CID requests. On Jan. 30, the court indicated that “no further action will be taken on the pending motions at this time,” and ordered the parties provide a status report as to the outstanding CID requests by March 30.

American Muslims for Palestine’s success to date in Virginia federal court is notable for that court’s willingness to entertain the merits of the organization’s claims notwithstanding the existence of parallel state judicial proceedings and speaks to the advantages that reasonably couching a CID challenge in First Amendment terms can bring for a targeted entity. The Supreme Court’s pending decision in First Choice could pave the way for more such challenges.

However, the organization’s success also stands in stark contrast to the treatment of the federal preemption arguments made by Kalshi and Robinhood in federal court in Massachusetts, underscoring how challenges to attorney general actions — including investigatory demands — often stall on ripeness before the merits are reached.

On Sept. 12, 2025, in Commonwealth of Massachusetts v. KalshiEX LLC, the Massachusetts attorney general filed a lawsuit in the Suffolk County Superior Court of Massachusetts against Kalshi, an online prediction market platform regulated by the U.S. Commodity Futures Trading Commission under the federal Commodity Exchange Act.[9]

Massachusetts argues that Kalshi’s sale of sports-related event contracts to Massachusetts consumers amounts to a sports wagering operation that is impermissible absent licensing by the state Gaming Commission and compliance with state gaming laws. It sought a court order blocking Kalshi’s business activity in Massachusetts in the interim, which the state court formally entered on Feb. 6.

Kalshi initially removed the case to federal court based on its defense that the Commodity Exchange Act preempts Massachusetts’ gaming laws and that the CFTC has exclusive regulatory authority over the business, but the Massachusetts federal district court remanded.[10]

On Sept. 15, 2025, in Robinhood Derivatives LLC v. Campbell, Robinhood, which lists sports-related event contracts on the Kalshi platform, then filed its own federal suit in the U.S. District Court for the District of Massachusetts against the Massachusetts attorney general and the state Gaming Commission. Robinhood sought an injunction that would bar the attorney general from enforcing state gaming laws against it because of preemption by the Commodity Exchange Act, asserting that Massachusetts’ investigation and the Kalshi enforcement action created an imminent threat to Robinhood’s products offered on Kalshi’s platform.

In November, the Massachusetts federal district court dismissed Robinhood’s case as unripe, relying in part on the attorney general’s stipulation that it would not pursue enforcement against Robinhood until the Kalshi litigation is adjudicated.[11] The business has since successfully moved for reconsideration, with the Massachusetts federal court allowing Robinhood to file an amended complaint.

The company’s renewed motion for preliminary injunction, which Massachusetts opposes, is pending. And Polymarket US, Kalshi’s competitor, filed its own federal lawsuit against Massachusetts on Feb. 9 — QCX LLC dba Polymarket US v. Campbell — also seeking to enjoin the attorney general’s enforcement of state gambling laws against federally regulated derivatives exchanges.[12]

Meanwhile, in the Kalshi state-court litigation, the Massachusetts Superior Court has denied Kalshi’s motion to dismiss the state’s complaint on preemption grounds and entered a preliminary injunction requiring Kalshi to cease offering sports contracts to anyone located in Massachusetts by no later than March 8. Kalshi’s appeal from the order is pending.[13]

The Supreme Court’s decision in First Choice is unlikely to help Kalshi, Robinhood or Polymarket in their Massachusetts litigations because none raises a First Amendment claim. Although a First Choice decision conceivably could support Robinhood’s ripeness arguments, most likely the old adage will apply: Robinhood’s arguments will not be ripe for review by a federal trial judge until they are moot.

Industry Application: Tech, Health and Finance Under the State Attorney General CID Lens

It is also important to note that individual, for-profit businesses are unlikely to have a viable associational-privacy defense to a state attorney general CID or investigative subpoena.

Nor do state investigations typically trigger other First Amendment protections in the absence of a demand that clearly targets expressive choices or involves compelled narratives.

Rather, a federal preemption claim generally is the only feasible basis for a court-ordered halt to a state attorney general investigation that is available to businesses in the most frequently targeted industry sectors — healthcare/pharma and finance/tech. Such arguments require concrete enforcement immediacy and a credible articulation of undue burden to have any chance of prevailing. They are seldom successful regardless.

The, to date unsuccessful, preemption challenges by Kalshi and Robinhood to the Massachusetts attorney general’s pending enforcement action against Kalshi in Massachusetts Superior Court are a case-in-point.

These subtle concepts are only observable by those practitioners who focus on state attorneys general litigation, as most litigators are not monitoring these developments in the law. But, if properly deployed, these arguments present a viable strategy upon which a corporation can resist CIDs issued by state attorneys general.

[1] Under the AIA, a federal court may enjoin a state court proceeding if a federal statute explicitly allows for such an injunction. Examples of such laws include 42 U.S.C. § 1983 and certain bankruptcy provisions.

[2] First Choice Women’s Res. Ctrs. v. Platkin, No. 3:23-cv-23076 (D.N.J.) (ECF 28) (Jan. 12, 2024).

[3] Id. (ECF 66) (Nov. 12, 2024).

[4] First Choice Women’s Res. Ctrs. v. Platkin, No. 24-3124 (3rd Cir.) (Dec. 12, 2024).

[5] Nonetheless, First Amendment issues can be intertwined with preemption claims. In WinRed, Inc. v. Ellison, 59 F.4th 934 (8th Cir. 2023), for example, the Republican-affiliated political action committee WinRed unsuccessfully argued that because it is a federally registered PAC, the Federal Election Campaign Act preempted an investigation into its online fundraising practices by the Minnesota AG. Although he concurred that “the AG’s investigation must be allowed to move forward,” Eighth Circuit Justice Bobby E. Shepherd wrote separately to note his concern with the breadth of the CID, which he wrote “requests an extraordinary amount of sensitive information from a political organization, some of which has a tenuous relationship, at best, with the AG’s investigation.”

[6] AJP Educational Foundation, d/b/a American Muslims for Palestine v. Miyares, No. 1420-24-2 (Ct. App. Va. Dec. 9, 2025) (unpublished).

[7] AJP Education Foundation, Inc. v. Att’y Gen., No. 1:25-cv-1617 (E.D. Va.) (ECF 25, at 11) (Oct. 17, 2025).

[8] Id. (ECF 19) (Oct. 3, 2025).

[9] Commonwealth of Mass. v. KalshiEX LLC, No. 2584CV02525 (Mass. Super. Ct.) (filed Sept. 12, 2025).

[10] Commonwealth of Mass. v. KalshiEX LLC, No. 1:25-cv-12595 (ECF 35) (D. Mass.) (Oct. 28, 2025).

[11] Robinhood Derivatives, LLC v. Att’y Gen., et al., No. 1:25-cv-12578 (ECF 69) (Nov. 13, 2025).

[12] QCX LLC, d/b/a Polymarket US v. Att’y Gen., et al., No. 1:26-cv-10651 (ECF 1) (Feb. 9, 2026).

[13] Commonwealth of Mass. v. KalshiEX LLC, No. 2026-J-0143 (Mass. App. Ct.) (filed Feb. 9, 2026).

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