Commercial Litigation Update

With the 2026 midterm elections behind us and Democrats having taken control of the House of Representatives and Senate, congressional Democrats have made clear in recent months that increased oversight of key topics and sectors will be a priority.

Ohio federal judges have published standing orders restricting the use of AI in preparing court filings. For litigators, these orders raise two practical questions: what work does each restriction order cover, and how can a violation be established? The first question matters early, because compliance may begin before a brief is drafted: a restriction on preparing filings may reach not only the final text but also the research and record summaries used to develop the brief.

Starting July 20, 2026, anyone walking into a New York State courthouse with smart glasses on (Meta’s Ray-Ban line or any similar device carrying a camera, microphone, or onboard processor) will need to hand them over to a court officer at the door before going any further. The directive comes from a July 1, 2026, Memorandum issued by the New York State Office of Court Administration, making New York the first state in the country to impose this kind of sweeping, systemwide restriction, reaching every level of the state’s court system.

The scope is intentionally wide. It reaches lawyers, parties to a case, witnesses, relatives sitting in the gallery, court staff, and ordinary visitors alike. Even smart glasses fitted with prescription lenses are banned. Anyone with prescription smart glasses should plan to carry a spare set of ordinary prescription glasses for the day.

            With summer behind us and fall underway, the Supreme Court’s 2026–2027 term is here. Twenty-five cases spanning civil, criminal, and administrative topics will occupy the Justices’ docket; several may capture the nation’s attention. Among the cases to watch are Anderson v. Intel Corporation Investment Policy Committee, No. 25-498 (Jan. 16, 2026); Younge v. Fulton Judicial Circuit District Attorney’s Office, Georgia, No. 25-352 (Mar. 30, 2026); and Crowther v. Board of Regents of the University System of Georgia, No. 25-183 (Dec. 8, 2025).

Trade secret and restrictive covenant disputes often turn on what happens at the outset of the case. Once confidential information is disclosed, customers are solicited, or competitive activity begins, a later damages award may not fully repair the harm. For businesses seeking or opposing emergency relief in Ohio, the choice between state and federal court can therefore carry practical consequences.

With DOJ and state Medicaid Fraud Control Unit (“MFCU”) enforcement increasing in the ABA space, proactive compliance programs are more important than ever. State Medicaid billing rules, scope-of-practice requirements, the CMS Toolkit, and recent OIG audit findings provide an important framework for identifying and monitoring compliance risk.

Recent enforcement actions involving a small number of ABA providers have brought increased regulatory attention to the industry. The most prominent example is the recent Minnesota prosecution involving allegations of billing for services that never occurred, falsified documentation, kickbacks, and concealed ownership interests. While the allegations are extreme and not representative of most ABA providers, cases like these have raised alarm among federal and state regulators.

Parties use arbitration provisions for a variety of reasons, including enhanced efficiency and advantages of resolving disputes in private and outside of court. In crafting arbitration clauses, businesses often retain some asymmetry, giving one party rights the other party does not enjoy. Courts generally permit this, even in adhesion contracts, as long as the provision is clearly disclosed and presented fairly. But a recent Fifth Circuit decision illustrates that clear presentation is not enough: a provision can be legible, labeled, and free of fine print, and still fail.

Applied behavior analysis (ABA) therapy for autism has become one of the fastest-growing service categories in Medicaid. Rapid growth, significant workforce demands, extensive use of paraprofessional staff, and complex documentation and supervision requirements have also created heightened compliance and payment-integrity risks. In response to increasing expenditures, varying clinical practices, and reported fraud schemes, the Centers for Medicare & Medicaid Services (CMS) recently released its Applied Behavior Analysis Toolkit (linked here) to support state Medicaid and Children’s Health Insurance Program (CHIP) oversight. Providers and investors should understand both the legitimate forces driving demand for ABA and the compliance issues receiving increased regulatory attention.

In this three-part series, we examine the factors driving increased regulatory attention to ABA, how routine compliance concerns can escalate into enforcement matters, and the steps providers and investors can take to reduce risk and strengthen compliance.

In a decision of first impression in Massachusetts, a judge in the Business Litigation Session of the Superior Court ruled that material generated by an artificial intelligence tool, or “AI output,” is not protected under the work product doctrine unless performed for or at the direction of counsel.

Shealy v. Seaside Investments, LLC, serves as a cautionary example of courts analyzing AI-generated materials through the lens of established attorney-client privilege and work product frameworks and deciding that information disclosed to a non-attorney, including an AI-powered tool, potentially exposes those materials to discovery.