Kathleen D. Wilkinson

I have been writing about the insurance risks of intoxicating hemp products since 2021, when delta-8 THC gummies first started showing up in convenience stores and gas stations across the country. Back then, our message to the cannabis, hemp, and insurance industries was simple. These products violate the spirit, if not the actual letter, of the 2018 Farm Bill, and the cannabis and hemp industries and their insurers should be wary of a government response. Well, a response from Congress took more than five years, but the response has teeth. The Federal Ban Congress rewrote the federal definition of hemp in legislation passed in late 2025. The changes were originally set to take effect on November 12, 2026, and they are sweeping. Congress has since approved a delay of most provisions to December 11, 2026, but synthetic and lab-converted cannabinoids like delta-8 and HHC remain excluded regardless of dose and subject to the November 12 ban as scheduled. The new law imposes a “total THC” standard that counts all forms of THC, not just delta-9, and caps finished hemp products at just 0.4 milligrams of total THC per container. Industry estimates suggest roughly 95 percent of hemp-derived cannabinoid products currently sold will become federally unlawful under the new definition. Products that exceed these limits will be classified as marijuana under the Controlled Substances Act. The Hemp Industry Fights Back The hemp industry is not going quietly. Both litigation and legislative efforts are underway to prevent the ban from taking effect, and Texas has become ground zero for the courtroom fight. In early August 2026, hemp industry groups sued the Texas Department of State Health Services in federal court after the agency reclassified delta-8 and other hemp-derived THC compounds as Schedule I controlled substances. The plaintiffs argue that the state's ban is preempted by the 2018 Farm Bill, violates due process, and imposes an unconstitutional burden on interstate commerce. They sought a temporary restraining order to halt enforcement. A federal judge, however, declined to block the ban, finding the industry challengers unlikely to prevail on their constitutional claims. A separate state-court challenge is pending before a Travis County judge over related smokable hemp rules, and additional lawsuits have been filed alleging the ban has created a monopoly for the state's medical marijuana program. Similar battles are playing out in Missouri, where the hemp industry is challenging that state's intoxicating hemp ban as unconstitutional. On the legislative front, several bills are moving through Congress aimed at softening or delaying the ban. The most notable is the Hemp Planting Predictability Act, a bipartisan effort to push the effective date back by two years to November 2028, giving the industry and regulators time to develop a workable framework. Other proposals seek to carve out non-intoxicating CBD products or raise the 0.4 mg cap to a more commercially viable threshold. There is real momentum behind some of these efforts, and even the White House has signaled support for protecting non-intoxicating hemp products from the ban’s overreach. The most concrete development happened on August 8, 2026, when the U.S. Senate passed H.R. 6500 by a 90-6 vote, with a provision that would delay the ban on naturally derived hemp THC products from November 12 to December 11, 2026. On September 1, 2026, the U.S. House of Representatives gave the bill final congressional approval by a bipartisan 370-48 vote, sending it to President Trump’s desk. The delay provision was based on the bipartisan Hemp Planting Predictability Act, introduced by Senators Amy Klobuchar (D-MN), Rand Paul (R-KY), and Jeff Merkley (D-OR). Synthetic cannabinoids continue to face an immediate November 12 ban, while naturally derived hemp THC products get a one-month reprieve to December 11. That delay is modest and does not change the underlying law. The President’s signature is expected but remains pending. We expect more lawsuits and more bills. We also expect most of the litigation to fail. The constitutional arguments are creative, but Congress has broad authority under the Commerce Clause to define what qualifies as a controlled substance, and the new definition is clear about its intent. The 2018 Farm Bill’s derivatives loophole, which facilitates products containing delta-8, delta-10, THC-O, THCA flower, and even delta-9 THC extracted from hemp, was never intended by Congress. It took Congress more than five years to close the loophole, but it has now acted. Courts are generally reluctant to second-guess that kind of legislative correction.  The industry’s longer-term legislative goals remain uncertain, including the standalone Hemp Planting Predictability Act (H.R. 7024), which would push the date back by three years. Whether Congress can enact a more comprehensive regulatory framework before December 11 is far from assured.  Companies and Insurers Must Act Now Our advice is don’t wait. Congress has provided a brief reprieve, but hemp companies and the insurers that cover them should be preparing now for December 11, not hoping that a federal judge or another last-minute act of Congress will ride to the rescue. A one-month delay is not a solution. Waiting is the worst possible risk management strategy. The practical fallout from this ban will be felt across nearly every coverage line. Start with product liability and property. When the ban takes effect, inventory that was perfectly legal yesterday becomes a controlled substance today. Product liability policies that were written to cover hemp-derived products may suddenly be covering the sale or distribution of federally illegal marijuana. That raises immediate coverage questions. Does the policy contain an illegal acts exclusion? Is there a controlled substance exclusion? If the insured continues to sell these products after December 11, what happens to the coverage? Underwriters need to be reviewing policy language now and deciding how to address this. Cargo and stock-throughput programs are directly implicated as well. Wholesalers, distributors, and brands that straddle the marijuana and hemp product categories should expect complications in coverage terms, exclusions, and transit insurance for inventory that may be reclassified mid-shipment. If a product leaves a warehouse as legal hemp and arrives at its destination as federally illegal marijuana, who bears the risk? These are not hypothetical questions. They must be answered by December 11. Beyond the insurance policy itself, the collateral risks are diverse. Companies with existing leases may face landlord disputes if the premises are being used to store or sell newly illegal products. Contracts with suppliers and customers must be revisited to understand how risk and loss are apportioned. E-commerce platforms may delist products, cutting off revenue streams overnight. Existing product liability claims related to hemp products may take on a different complexion when the underlying product becomes illegal. Loans secured by hemp inventory could go into default. Investors who backed hemp companies expecting continued legality may pursue claims against management. All this increased uncertainty will likely result in more claims and litigation, which may trigger a policy response. One important nuance to understand is that some states have laws that expressly permit the sale of hemp-derived THC products, and those laws don't automatically disappear because the federal definition has changed. Where a state continues to allow legal hemp product sales, we recommend that insurers and operators treat those situations similarly to the regulated intrastate marijuana model that has been operating successfully for years. The risk management playbook is similar—know your customer, know your state’s regulations, and maintain compliance. There is also a tax dimension that companies cannot afford to ignore. If a hemp company continues selling products that are now federally classified as marijuana, it should expect Section 280E of the Internal Revenue Code to apply. That means most ordinary business deductions vanish, effective tax rates skyrocket, and the economics of the business fundamentally change. The regulated cannabis industry has been living with 280E for years, and it is brutal. Hemp companies that are new to this reality should get tax counsel involved immediately. The intoxicating hemp market was always on borrowed time. We said as much when delta-9 THC gummies started being sold as “legal hemp” out of convenience stores while regulated cannabis operators next door were paying through the nose for compliance. That imbalance was unsustainable. Now the correction is here. The smart move for hemp operators is to diversify, pivot to compliant products or, where state law permits, participate in the regulated cannabis market. For insurers, it’s time to audit your book, update your forms, and make sure you know exactly what you’re covering when December 11 arrives. This article was published in the September 7, 2026, posting of Insurance Journal.

Kimberly E. Blair (Partner-Chicago) and Maxwell L. Billek (Partner-Madison, NJ) will present the Wilson Elser Forum webinar “Emerging Trends and Landmark Decisions in Lawyer’s Liability” on September 14, 2026. This program provides claims professionals, underwriters, and attorneys with updates on emerging trends, risk factors, and recent landmark decisions affecting lawyers’ liability and legal malpractice exposure. Kim and Max examine developing malpractice risks associated with generative AI, the growth of transactional malpractice claims, the impact of third-party litigation funding on claim resolution, and the continuing significance of conflicts of interest as a leading source of professional liability. Recent case law on vicarious liability, fee-sharing and ethics obligations, proximate causation standards, fiduciary duties in settlement communications, and litigation privilege are also addressed. By the end of the presentation, participants will be better equipped to identify evolving malpractice risks, understand current legal standards governing professional liability, and implement practical risk-management strategies in their practices.

Only the top 5.3 percent of all practicing lawyers in the nation are selected by their peers for inclusion on The Best Lawyers in America® list. This year, 123 Wilson Elser attorneys were so honored: Birmingham, AL David Hall – Partner David A. Lee ‒ Of Counsel William L. Waudby – Partner Phoenix, AZ Brian Cieniawski – Of Counsel  Los Angeles, CA E. Paul Dougherty Jr. – Partner David S. Eisen – Senior Counsel Diana M. Estrada – Partner William Tolin Gay – Of Counsel Linda Tai Hoshide – Partner Gregory K. Lee – Partner David M. Morrow – Partner Michelle R. Press – Partner David Simantob – Partner Tae S. Um – Partner San Diego, CA Carole J. Buckner – Partner Bruno W. Katz – Partner Patrick J. Kearns – Partner Michael P. McCloskey – Senior Counsel San Francisco, CA William M. Hake – Senior Counsel John H. Podesta – Partner Julie A. Torres – Partner Yakov P. Wiegmann – Partner Denver, CO Emily L. P. Aguero – Partner Jason D. Melichar – Partner Ryan A. Williams – Partner Jane E. Young – Partner  Christopher D. Yvars – Partner Stamford, CT Stephen P. Brown ‒ Partner Douglas M. Connors ‒ Partner Eric W.F. Niederer ‒ Partner Washington, D.C. Robert W. Goodson – Senior Counsel Catherine A. Hanrahan – Partner  Miami, FL  Alan Fiedel – Partner Tanya I. Suarez – Partner Gustavo A. Martinez Tristani – Partner Orlando, FL John Y. Benford – Partner Alicia M. Caridi – Of Counsel Jaime B. Eagan – Of Counsel Nicholas D. Freeman – Partner James M. Kloss – Partner  Leia Leitner – Of Counsel Sean M. McDonough – Partner  Noelle K. Sheehan – Partner  Tampa, FL Michelle Sabin – Of Counsel  Atlanta, GA Vonnetta L. Benjamin – Of Counsel  Allison M. Escott ‒ Of Counsel Matthew Foree – Of Counsel  Parks K. Stone – Partner Chicago, IL  Andrew J. Albright – Partner Michael J. Duffy – Partner Melissa A. Murphy-Petros – Of Counsel Indianapolis, IN Jarrod A. Malone – Partner Louisville, KY James M. Burd – Partner Scott A. Davidson – Of Counsel  Marcia L. Pearson – Partner  Christopher M. Piekarski – Of Counsel  Lynsie Gaddis Rust – Partner  New Orleans, LA Michael Harowski – Partner  H. Jake Rodriguez – Partner Boston, MA  Christopher P. Flanagan – Partner Christine A. Knipper – Partner George C. Rockas – Partner Baltimore, MD Angela W. Russell – Partner  Detroit, MI William S. Cook – Partner Kevin M. Mulvaney – Partner  St. Louis, MO Carolyn M. Husmann – Of Counsel  Daniel E. Tranen – Partner  Jackson, MS John S. Graham – Of Counsel William M. Vines – Of Counsel Charlotte, NC Gerald A. Stein II – Of Counsel  Madison, NJ Maxwell L. Billek – Partner Anne M. Dalena – Of Counsel  Andrew M. Epstein – Partner Peter Espey ‒ Of Counsel Roger R. Gottilla – Senior Counsel  Joseph T. Hanlon – Partner Barbara Hopkinson Kelly – Partner Kurt W. Krauss – Partner William D. Lipkind – Partner  Carolyn F. O’Conner – Partner Joanna Piorek – Partner Thomas F. Quinn – Senior Counsel  James B. Sharp – Of Counsel Katherine E. Tammaro – Partner Sheila Tarabour – Partner Michael P. Turner – Senior Counsel  Mark P. Vespole – Partner  Las Vegas, NV Karen L. Bashor – Partner Michael Lowry – Partner  Sheri Thome – Partner Albany, NY Peter A. Lauricella – Partner Christopher Martin – Partner  New York, NY Jeffrey B. Araten – Partner Eugene T. Boulé – Partner Joseph L. Francoeur – Partner Allison R. Graffeo – Partner Robin N. Gregory – Senior Counsel  Ellen Greiper – Partner  Ashley V. Humphries – Partner  Paul Karp – Partner  Guy J. Levasseur – Partner Frances Malfa – Partner  Stuart A. Miller – Partner  Richard Ng – Partner Lois K. Ottombrino – Senior Counsel Jay A. Potter – Partner  Ricki E. Roer – Senior Counsel  Dov G. Sternberg – Partner Scott H. Stopnik – Partner White Plains, NY  Alan B. Friedberg – Senior Counsel  Michael F. Grady – Partner Jacqueline Hattar – Partner Patricia Lacy – Partner Philip Quaranta – Partner Thomas W. Tobin – Senior Counsel  Portland, OR Michael T. Belisle – Partner  Lloyd Bernstein – Partner  Matthew C. Casey – Of Counsel George S. Pitcher – Partner  Peder A. Rigsby – Partner  Philadelphia, PA  Brian F. Breen – Partner  John T. Donovan – Partner  William F. McDevitt – Partner  Kathleen D. Wilkinson – Senior Counsel  Dallas, TX Craig Brinker – Of Counsel  J. Price Collins – Partner  Ashley F. Gilmore ‒ Partner Jennafer G. Groswith ‒ Partner Stephani R. Johnson – Partner Jarad L. Kent – Partner  James S. Kiser – Of Counsel Jennifer Martin – Partner R. Douglas Noah, Jr. – Partner  Kimberly A. Wilson – Partner  Houston, TX  Kent M. Adams – Senior Counsel Christina C. Huston – Of Counsel Lori D. Proctor – Partner  John R. Sheppard – Partner  Colin S. Sherrod – Of Counsel  Ronald L. White – Of Counsel  McLean, VA Kathryn Anne Grace – Partner  Matthew W. Lee – Partner Peter M. Moore – Partner Jason R. Waters – Partner  Seattle, WA Nicole Brodie Jackson – Partner Erin P. Fraser – Partner E. Penn Gheen – Of Counsel Lorianne Conklin Hanson – Partner Rachel Tallon Reynolds – Partner Evelyn E. Winters – Partner Milwaukee, WI Sarah Fry Bruch – Of Counsel William J. Katt – Senior Counsel  John P. Loringer – Partner 

Ian Stewart (Partner-Los Angeles, CA) will present the webinar “Cannabis Move to Schedule III” for the Chartered Property Casualty Underwriters (CPCU) Houston chapter at its September 15, 2026, meeting. Considering the DOJ's April 2026 order rescheduling state-licensed medical cannabis to Schedule III and a DEA hearing on broader rescheduling wrapping up this summer, the cannabis insurance landscape is shifting fast. Ian will discuss how moving cannabis to Schedule III may impact cannabis insurance, breaking down what rescheduling means for underwriting and new capacity, as well as emerging complexities insurers, brokers, and risk managers must navigate. This timely presentation is essential for anyone writing – or considering – cannabis risks.

A defendant’s ability to obtain a psychological examination of a personal injury plaintiff alleging a psychological injury has been under attack in Nevada since 2018. Nevada’s Supreme Court has now decided the latest battle, Davis v. Dist. Ct., 142 Adv. Op. 58 (2026). The plaintiff in Davis alleged physical and psychological injuries. The defendant retained a local neuropsychologist to perform a neuropsychological evaluation. The plaintiff then requested the examiner produce the raw testing data generated during the evaluation, and the court ordered the examiner to produce the data to the plaintiff’s psychological expert and plaintiff’s counsel. The defendant and the examiner produced the data to the psychological expert, but not counsel. They asserted NAC 641.234(3) barred disclosing it to counsel. The Supreme Court disagreed, concluding NAC 641.234(3) “cannot direct the district court’s discovery decisions.” If a court orders the raw testing data produced under a protective order and the psychologist declines to produce it per NAC 641.234(3), then the psychologist risks exclusion from trial. This ruling may significantly complicate psychological examinations in Nevada. Nevada-licensed psychologists are bound by NAC 641.234(3), regardless of their status as a treater or forensic examiner. Davis may place both sides in an impossible conundrum in that defense counsel will want the treater’s raw data just as the plaintiff’s counsel will want the forensic examiner’s raw data. Yet NAC 641.234(3) bars both the treater and the examiner from producing it. Nevada’s psychological community has submitted public comments to the legislature noting the risks from public disclosure of the information. Psychological professional organizations have repeatedly adopted codes concerning testing security. Davis places psychologists with the choice to either comply with a court order and violate their professional obligations or comply with their professional obligations and risk being excluded from trial. The number of psychologists willing to perform forensic examinations, whether for a plaintiff or defendant, seemed to drop after the Powers decision earlier in 2026. That pool may shrink further after Davis. The best hope for a compromise that allows all sides access to the data they need to litigate a case while protecting testing security might be action from the Nevada legislature during the 2027 general session.

Jarad Kent (Partner-Dallas/Tyler, TX) and Jennifer Myers (Associate-Dallas, TX) prevailed on a motion to dismiss in the 439th District Court, Rockwall County, Texas, on behalf of Wilson Elser’s client, a medical consulting company. The case arose from the sale of residential property in Rockwall County. The plaintiff, the property purchaser, brought suit against the sellers, the sellers' real estate agent, and our client, a medical consulting company owned by one of the sellers, alleging fraud based on the alleged failure to disclose a defect in the property. Jarad and Jennifer filed a Texas Rule 91a motion to dismiss, arguing that the plaintiff's claims against the client had no basis in law or fact. Following a hearing on the motion and additional briefing by both parties, the court granted Wilson Elser’s motion and dismissed claims against the firm’s client with prejudice. 

Q: Under federal statutes, can an employer round employees’ time up or down when they clock in?  A: Yes, but not in a manner where the employees are not fully compensated for all the time they work.  Some employers track employee hours in 5-, 10-, or 15-minute increments, and the Fair Labor Standards Act (FLSA) allows an employer to round employee time to the nearest quarter hour. The FLSA recognizes that it can be impractical to count time down to the minute. An employer, however, can violate FLSA if the employee is not fully compensated for the time they work or if the employer always rounds down. Thus, if an employer rounds down, it must also round up. Of course, if there is a situation where it is practical to count time down to the minute, such as with digital time tracking, then counting each minute eliminates risk from a FLSA rounding claim.  In the scenario where an employer must round, there are some safer ways to do it, such as:  Rounding in favor of the employer despite being more expensive for them. This eliminates risk because it will always favor the employee.  Using the start/stop method. The employer can round down when the employee clocks in and round up when the employee clocks out, or vice versa. As an example, an employee who clocks in at 8:56 AM for a 9:00 AM shift would not be paid for those four minutes. Likewise, an employee who clocks out early at 4:56 PM for a shift ending at 5:00 PM would still be paid for those unworked four minutes. Some employers, however, have been found liable for undercompensating employees1 when this facially neutral policy is not applied neutrally. Setting the time clock to pay in 5-, 10-, or 15-minute increments. As an example, if the employer sets the clock to pay in 10-minute intervals and the employee clocks in at 9:05 AM, then the employer would round down to 9:00 AM. If the employee clocks in at 9:06 AM, then the employer would round up to 9:10 AM.  Regardless of the rounding method chosen, the employer has an obligation to audit their payroll practices to make sure the implementation of the rounding procedure is neutral or favors the employee. The employer cannot rely on a facially neutral policy as a defense if employees are routinely undercompensated. Employers should also clearly identify their rounding policy in the handbook so employees are aware of it.   If the employer has knowledge of its employees working, it must pay them accordingly. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employees' fixed or regular working time or practically ascertainable period of time the employee is regularly required to spend on duties assigned to them. Rounding is only permitted when there are uncertain or indefinite periods of time of a few seconds or minutes duration.2 Employers who do not properly round are subject to FLSA claims and state law claims for underpaid wages.  This article only covers federal statutes, and employers should also check state and local legislation as well comply with any differences with federal law. Each employer has different needs. If you are an employer with questions about how to pay employees or applicable state and federal employment laws, please reach out to an experienced Wilson Elser employment attorney. ________________________________________________________________________________________ 1 Houston v. Saint Luke's Health Sys., 76 F.4th 1145, 1151 (8th Cir. 2023). 2 29 CFR 785.47. 

Jonathan Meer (Partner-New York, NY) and Angela Sekerka (Of Counsel-New York, NY) will present the Wilson Elser Forum webinar “The Shifting Landscape of Fair Housing Law” on September 10, 2026. This webinar will provide a comprehensive overview of the ever-changing landscape of fair housing law, beginning with the foundation of the Fair Housing Act and the key issues involving fair housing discrimination nationwide. The Department of Housing and Urban Development (HUD) has been reworking its guidance across a range of fair housing issues, requiring providers to comply with new standards. As the new administration’s priorities continue to drive these changes, this presentation will explore how compliance with fair housing law is a moving target. It will examine challenges to what is considered reasonable accommodation and the use of criminal background checks in housing decisions. Additionally, the presentation will offer insight into emerging legislation on algorithmic rent-setting and source-of-income discrimination. The session will conclude with guidance on how providers should approach their housing policies and navigate the fluctuating laws of fair housing. 

Jesse Endler (Of Counsel-Philadelphia, PA) and Christopher Flanagan (Partner-Boston, MA) prevailed on summary judgment in the New Jersey Superior Court, Atlantic County, on behalf of Wilson Elser’s insurance company client in a first-party coverage action. The insured sought damages estimated at more than $100,000 for alleged breach of contract and bad faith arising from the client’s denial of coverage for the sudden collapse of the rear wall of its residential property. The collapse caused the rear wall to shift downward 12 to 18 inches, requiring the wall and several stories of decks to be removed and rebuilt. An investigation determined that the residence’s sill plate and framing had sustained prolonged, hidden water intrusion and trapped moisture, resulting in extensive rot, decay, disintegration, and deterioration. The insured admitted, as corroborated by experts for both sides, that the water infiltration had been ongoing for several years ‒ predating both the policy’s inception and the insured’s purchase of the property. Our client denied coverage under policy exclusions for collapse caused by decay and rot and for pre-existing damage. Following discovery, Wilson Elser moved for summary judgment, arguing that the policy language was clear and unambiguous and that under the normal usage of its terms, the policy did not provide coverage for the loss. Chris and Jesse further argued that the client could not have acted in bad faith because its denial was based on the policy’s clear language. The insured countered that the policy language was confusing, provided illusory coverage, and required coverage for the loss, and further alleged that the insurer had acted in bad faith. Following oral argument, the court agreed that the policy language was clear and unambiguous and that the loss was not covered. Because there was no coverage, the court concluded that the bad faith claim could not succeed and granted summary judgment in favor of Wilson Elser’s client, dismissing the case.

Thomas Holmgren (Of Counsel-New York, NY) is among five members of the Hartwick College community selected to receive a 2026 Alumni Award. A member of the Hartwick Class of 2013, Thomas has been named the Alumni Association’s Outstanding Recent Alumnus, recognizing graduates who have demonstrated outstanding and sustained volunteer service to the College.   Thomas was recognized for his extraordinary leadership, perhaps best exemplified by the College’s Moot Court Competition, which he created, directed, and funded. He personally developed the constitutional law cases used in the competition, coordinated multiple rounds of oral arguments, recruited and organized dozens of Hartwick alumni attorneys to serve as judges, and traveled to campus to participate in the final rounds. As one nominator aptly observed, Thomas “has remained deeply committed to giving back to Hartwick and creating opportunities for the next generation of students.” Through the competition, Hartwick students gain invaluable experience in legal analysis, persuasive advocacy, critical thinking, and public speaking. As the College proudly noted in its awards press release, Thomas “has created a legacy that continues to enrich both our students and broader community.”

Only the top 5.3 percent of all practicing lawyers in the nation are selected by their peers for inclusion on The Best Lawyers in America® list. This year, 123 Wilson Elser attorneys were so honored: Birmingham, AL David Hall – Partner David A. Lee ‒ Of Counsel William L. Waudby – Partner Phoenix, AZ Brian Cieniawski – Of Counsel  Los Angeles, CA E. Paul Dougherty Jr. – Partner David S. Eisen – Senior Counsel Diana M. Estrada – Partner William Tolin Gay – Of Counsel Linda Tai Hoshide – Partner Gregory K. Lee – Partner David M. Morrow – Partner Michelle R. Press – Partner David Simantob – Partner Tae S. Um – Partner San Diego, CA Carole J. Buckner – Partner Bruno W. Katz – Partner Patrick J. Kearns – Partner Michael P. McCloskey – Senior Counsel San Francisco, CA William M. Hake – Senior Counsel John H. Podesta – Partner Julie A. Torres – Partner Yakov P. Wiegmann – Partner Denver, CO Emily L. P. Aguero – Partner Jason D. Melichar – Partner Ryan A. Williams – Partner Jane E. Young – Partner  Christopher D. Yvars – Partner Stamford, CT Stephen P. Brown ‒ Partner Douglas M. Connors ‒ Partner Eric W.F. Niederer ‒ Partner Washington, D.C. Robert W. Goodson – Senior Counsel Catherine A. Hanrahan – Partner  Miami, FL  Alan Fiedel – Partner Tanya I. Suarez – Partner Gustavo A. Martinez Tristani – Partner Orlando, FL John Y. Benford – Partner Alicia M. Caridi – Of Counsel Jaime B. Eagan – Of Counsel Nicholas D. Freeman – Partner James M. Kloss – Partner  Leia Leitner – Of Counsel Sean M. McDonough – Partner  Noelle K. Sheehan – Partner  Tampa, FL Michelle Sabin – Of Counsel  Atlanta, GA Vonnetta L. Benjamin – Of Counsel  Allison M. Escott ‒ Of Counsel Matthew Foree – Of Counsel  Parks K. Stone – Partner Chicago, IL  Andrew J. Albright – Partner Michael J. Duffy – Partner Melissa A. Murphy-Petros – Of Counsel Indianapolis, IN Jarrod A. Malone – Partner Louisville, KY James M. Burd – Partner Scott A. Davidson – Of Counsel  Marcia L. Pearson – Partner  Christopher M. Piekarski – Of Counsel  Lynsie Gaddis Rust – Partner  New Orleans, LA Michael Harowski – Partner  H. Jake Rodriguez – Partner Boston, MA  Christopher P. Flanagan – Partner Christine A. Knipper – Partner George C. Rockas – Partner Baltimore, MD Angela W. Russell – Partner  Detroit, MI William S. Cook – Partner Kevin M. Mulvaney – Partner  St. Louis, MO Carolyn M. Husmann – Of Counsel  Daniel E. Tranen – Partner  Jackson, MS John S. Graham – Of Counsel William M. Vines – Of Counsel Charlotte, NC Gerald A. Stein II – Of Counsel  Madison, NJ Maxwell L. Billek – Partner Anne M. Dalena – Of Counsel  Andrew M. Epstein – Partner Peter Espey ‒ Of Counsel Roger R. Gottilla – Senior Counsel  Joseph T. Hanlon – Partner Barbara Hopkinson Kelly – Partner Kurt W. Krauss – Partner William D. Lipkind – Partner  Carolyn F. O’Conner – Partner Joanna Piorek – Partner Thomas F. Quinn – Senior Counsel  James B. Sharp – Of Counsel Katherine E. Tammaro – Partner Sheila Tarabour – Partner Michael P. Turner – Senior Counsel  Mark P. Vespole – Partner  Las Vegas, NV Karen L. Bashor – Partner Michael Lowry – Partner  Sheri Thome – Partner Albany, NY Peter A. Lauricella – Partner Christopher Martin – Partner  New York, NY Jeffrey B. Araten – Partner Eugene T. Boulé – Partner Joseph L. Francoeur – Partner Allison R. Graffeo – Partner Robin N. Gregory – Senior Counsel  Ellen Greiper – Partner  Ashley V. Humphries – Partner  Paul Karp – Partner  Guy J. Levasseur – Partner Frances Malfa – Partner  Stuart A. Miller – Partner  Richard Ng – Partner Lois K. Ottombrino – Senior Counsel Jay A. Potter – Partner  Ricki E. Roer – Senior Counsel  Dov G. Sternberg – Partner Scott H. Stopnik – Partner White Plains, NY  Alan B. Friedberg – Senior Counsel  Michael F. Grady – Partner Jacqueline Hattar – Partner Patricia Lacy – Partner Philip Quaranta – Partner Thomas W. Tobin – Senior Counsel  Portland, OR Michael T. Belisle – Partner  Lloyd Bernstein – Partner  Matthew C. Casey – Of Counsel George S. Pitcher – Partner  Peder A. Rigsby – Partner  Philadelphia, PA  Brian F. Breen – Partner  John T. Donovan – Partner  William F. McDevitt – Partner  Kathleen D. Wilkinson – Senior Counsel  Dallas, TX Craig Brinker – Of Counsel  J. Price Collins – Partner  Ashley F. Gilmore ‒ Partner Jennafer G. Groswith ‒ Partner Stephani R. Johnson – Partner Jarad L. Kent – Partner  James S. Kiser – Of Counsel Jennifer Martin – Partner R. Douglas Noah, Jr. – Partner  Kimberly A. Wilson – Partner  Houston, TX  Kent M. Adams – Senior Counsel Christina C. Huston – Of Counsel Lori D. Proctor – Partner  John R. Sheppard – Partner  Colin S. Sherrod – Of Counsel  Ronald L. White – Of Counsel  McLean, VA Kathryn Anne Grace – Partner  Matthew W. Lee – Partner Peter M. Moore – Partner Jason R. Waters – Partner  Seattle, WA Nicole Brodie Jackson – Partner Erin P. Fraser – Partner E. Penn Gheen – Of Counsel Lorianne Conklin Hanson – Partner Rachel Tallon Reynolds – Partner Evelyn E. Winters – Partner Milwaukee, WI Sarah Fry Bruch – Of Counsel William J. Katt – Senior Counsel  John P. Loringer – Partner 

Kimberly E. Blair (Partner-Chicago) and Maxwell L. Billek (Partner-Madison, NJ) will present the Wilson Elser Forum webinar “Emerging Trends and Landmark Decisions in Lawyer’s Liability” on September 14, 2026. This program provides claims professionals, underwriters, and attorneys with updates on emerging trends, risk factors, and recent landmark decisions affecting lawyers’ liability and legal malpractice exposure. Kim and Max examine developing malpractice risks associated with generative AI, the growth of transactional malpractice claims, the impact of third-party litigation funding on claim resolution, and the continuing significance of conflicts of interest as a leading source of professional liability. Recent case law on vicarious liability, fee-sharing and ethics obligations, proximate causation standards, fiduciary duties in settlement communications, and litigation privilege are also addressed. By the end of the presentation, participants will be better equipped to identify evolving malpractice risks, understand current legal standards governing professional liability, and implement practical risk-management strategies in their practices.

I have been writing about the insurance risks of intoxicating hemp products since 2021, when delta-8 THC gummies first started showing up in convenience stores and gas stations across the country. Back then, our message to the cannabis, hemp, and insurance industries was simple. These products violate the spirit, if not the actual letter, of the 2018 Farm Bill, and the cannabis and hemp industries and their insurers should be wary of a government response. Well, a response from Congress took more than five years, but the response has teeth. The Federal Ban Congress rewrote the federal definition of hemp in legislation passed in late 2025. The changes were originally set to take effect on November 12, 2026, and they are sweeping. Congress has since approved a delay of most provisions to December 11, 2026, but synthetic and lab-converted cannabinoids like delta-8 and HHC remain excluded regardless of dose and subject to the November 12 ban as scheduled. The new law imposes a “total THC” standard that counts all forms of THC, not just delta-9, and caps finished hemp products at just 0.4 milligrams of total THC per container. Industry estimates suggest roughly 95 percent of hemp-derived cannabinoid products currently sold will become federally unlawful under the new definition. Products that exceed these limits will be classified as marijuana under the Controlled Substances Act. The Hemp Industry Fights Back The hemp industry is not going quietly. Both litigation and legislative efforts are underway to prevent the ban from taking effect, and Texas has become ground zero for the courtroom fight. In early August 2026, hemp industry groups sued the Texas Department of State Health Services in federal court after the agency reclassified delta-8 and other hemp-derived THC compounds as Schedule I controlled substances. The plaintiffs argue that the state's ban is preempted by the 2018 Farm Bill, violates due process, and imposes an unconstitutional burden on interstate commerce. They sought a temporary restraining order to halt enforcement. A federal judge, however, declined to block the ban, finding the industry challengers unlikely to prevail on their constitutional claims. A separate state-court challenge is pending before a Travis County judge over related smokable hemp rules, and additional lawsuits have been filed alleging the ban has created a monopoly for the state's medical marijuana program. Similar battles are playing out in Missouri, where the hemp industry is challenging that state's intoxicating hemp ban as unconstitutional. On the legislative front, several bills are moving through Congress aimed at softening or delaying the ban. The most notable is the Hemp Planting Predictability Act, a bipartisan effort to push the effective date back by two years to November 2028, giving the industry and regulators time to develop a workable framework. Other proposals seek to carve out non-intoxicating CBD products or raise the 0.4 mg cap to a more commercially viable threshold. There is real momentum behind some of these efforts, and even the White House has signaled support for protecting non-intoxicating hemp products from the ban’s overreach. The most concrete development happened on August 8, 2026, when the U.S. Senate passed H.R. 6500 by a 90-6 vote, with a provision that would delay the ban on naturally derived hemp THC products from November 12 to December 11, 2026. On September 1, 2026, the U.S. House of Representatives gave the bill final congressional approval by a bipartisan 370-48 vote, sending it to President Trump’s desk. The delay provision was based on the bipartisan Hemp Planting Predictability Act, introduced by Senators Amy Klobuchar (D-MN), Rand Paul (R-KY), and Jeff Merkley (D-OR). Synthetic cannabinoids continue to face an immediate November 12 ban, while naturally derived hemp THC products get a one-month reprieve to December 11. That delay is modest and does not change the underlying law. The President’s signature is expected but remains pending. We expect more lawsuits and more bills. We also expect most of the litigation to fail. The constitutional arguments are creative, but Congress has broad authority under the Commerce Clause to define what qualifies as a controlled substance, and the new definition is clear about its intent. The 2018 Farm Bill’s derivatives loophole, which facilitates products containing delta-8, delta-10, THC-O, THCA flower, and even delta-9 THC extracted from hemp, was never intended by Congress. It took Congress more than five years to close the loophole, but it has now acted. Courts are generally reluctant to second-guess that kind of legislative correction.  The industry’s longer-term legislative goals remain uncertain, including the standalone Hemp Planting Predictability Act (H.R. 7024), which would push the date back by three years. Whether Congress can enact a more comprehensive regulatory framework before December 11 is far from assured.  Companies and Insurers Must Act Now Our advice is don’t wait. Congress has provided a brief reprieve, but hemp companies and the insurers that cover them should be preparing now for December 11, not hoping that a federal judge or another last-minute act of Congress will ride to the rescue. A one-month delay is not a solution. Waiting is the worst possible risk management strategy. The practical fallout from this ban will be felt across nearly every coverage line. Start with product liability and property. When the ban takes effect, inventory that was perfectly legal yesterday becomes a controlled substance today. Product liability policies that were written to cover hemp-derived products may suddenly be covering the sale or distribution of federally illegal marijuana. That raises immediate coverage questions. Does the policy contain an illegal acts exclusion? Is there a controlled substance exclusion? If the insured continues to sell these products after December 11, what happens to the coverage? Underwriters need to be reviewing policy language now and deciding how to address this. Cargo and stock-throughput programs are directly implicated as well. Wholesalers, distributors, and brands that straddle the marijuana and hemp product categories should expect complications in coverage terms, exclusions, and transit insurance for inventory that may be reclassified mid-shipment. If a product leaves a warehouse as legal hemp and arrives at its destination as federally illegal marijuana, who bears the risk? These are not hypothetical questions. They must be answered by December 11. Beyond the insurance policy itself, the collateral risks are diverse. Companies with existing leases may face landlord disputes if the premises are being used to store or sell newly illegal products. Contracts with suppliers and customers must be revisited to understand how risk and loss are apportioned. E-commerce platforms may delist products, cutting off revenue streams overnight. Existing product liability claims related to hemp products may take on a different complexion when the underlying product becomes illegal. Loans secured by hemp inventory could go into default. Investors who backed hemp companies expecting continued legality may pursue claims against management. All this increased uncertainty will likely result in more claims and litigation, which may trigger a policy response. One important nuance to understand is that some states have laws that expressly permit the sale of hemp-derived THC products, and those laws don't automatically disappear because the federal definition has changed. Where a state continues to allow legal hemp product sales, we recommend that insurers and operators treat those situations similarly to the regulated intrastate marijuana model that has been operating successfully for years. The risk management playbook is similar—know your customer, know your state’s regulations, and maintain compliance. There is also a tax dimension that companies cannot afford to ignore. If a hemp company continues selling products that are now federally classified as marijuana, it should expect Section 280E of the Internal Revenue Code to apply. That means most ordinary business deductions vanish, effective tax rates skyrocket, and the economics of the business fundamentally change. The regulated cannabis industry has been living with 280E for years, and it is brutal. Hemp companies that are new to this reality should get tax counsel involved immediately. The intoxicating hemp market was always on borrowed time. We said as much when delta-9 THC gummies started being sold as “legal hemp” out of convenience stores while regulated cannabis operators next door were paying through the nose for compliance. That imbalance was unsustainable. Now the correction is here. The smart move for hemp operators is to diversify, pivot to compliant products or, where state law permits, participate in the regulated cannabis market. For insurers, it’s time to audit your book, update your forms, and make sure you know exactly what you’re covering when December 11 arrives. This article was published in the September 7, 2026, posting of Insurance Journal.

Ian Stewart (Partner-Los Angeles, CA) will present the webinar “Cannabis Move to Schedule III” for the Chartered Property Casualty Underwriters (CPCU) Houston chapter at its September 15, 2026, meeting. Considering the DOJ's April 2026 order rescheduling state-licensed medical cannabis to Schedule III and a DEA hearing on broader rescheduling wrapping up this summer, the cannabis insurance landscape is shifting fast. Ian will discuss how moving cannabis to Schedule III may impact cannabis insurance, breaking down what rescheduling means for underwriting and new capacity, as well as emerging complexities insurers, brokers, and risk managers must navigate. This timely presentation is essential for anyone writing – or considering – cannabis risks.

A defendant’s ability to obtain a psychological examination of a personal injury plaintiff alleging a psychological injury has been under attack in Nevada since 2018. Nevada’s Supreme Court has now decided the latest battle, Davis v. Dist. Ct., 142 Adv. Op. 58 (2026). The plaintiff in Davis alleged physical and psychological injuries. The defendant retained a local neuropsychologist to perform a neuropsychological evaluation. The plaintiff then requested the examiner produce the raw testing data generated during the evaluation, and the court ordered the examiner to produce the data to the plaintiff’s psychological expert and plaintiff’s counsel. The defendant and the examiner produced the data to the psychological expert, but not counsel. They asserted NAC 641.234(3) barred disclosing it to counsel. The Supreme Court disagreed, concluding NAC 641.234(3) “cannot direct the district court’s discovery decisions.” If a court orders the raw testing data produced under a protective order and the psychologist declines to produce it per NAC 641.234(3), then the psychologist risks exclusion from trial. This ruling may significantly complicate psychological examinations in Nevada. Nevada-licensed psychologists are bound by NAC 641.234(3), regardless of their status as a treater or forensic examiner. Davis may place both sides in an impossible conundrum in that defense counsel will want the treater’s raw data just as the plaintiff’s counsel will want the forensic examiner’s raw data. Yet NAC 641.234(3) bars both the treater and the examiner from producing it. Nevada’s psychological community has submitted public comments to the legislature noting the risks from public disclosure of the information. Psychological professional organizations have repeatedly adopted codes concerning testing security. Davis places psychologists with the choice to either comply with a court order and violate their professional obligations or comply with their professional obligations and risk being excluded from trial. The number of psychologists willing to perform forensic examinations, whether for a plaintiff or defendant, seemed to drop after the Powers decision earlier in 2026. That pool may shrink further after Davis. The best hope for a compromise that allows all sides access to the data they need to litigate a case while protecting testing security might be action from the Nevada legislature during the 2027 general session.

Jarad Kent (Partner-Dallas/Tyler, TX) and Jennifer Myers (Associate-Dallas, TX) prevailed on a motion to dismiss in the 439th District Court, Rockwall County, Texas, on behalf of Wilson Elser’s client, a medical consulting company. The case arose from the sale of residential property in Rockwall County. The plaintiff, the property purchaser, brought suit against the sellers, the sellers' real estate agent, and our client, a medical consulting company owned by one of the sellers, alleging fraud based on the alleged failure to disclose a defect in the property. Jarad and Jennifer filed a Texas Rule 91a motion to dismiss, arguing that the plaintiff's claims against the client had no basis in law or fact. Following a hearing on the motion and additional briefing by both parties, the court granted Wilson Elser’s motion and dismissed claims against the firm’s client with prejudice. 

Q: Under federal statutes, can an employer round employees’ time up or down when they clock in?  A: Yes, but not in a manner where the employees are not fully compensated for all the time they work.  Some employers track employee hours in 5-, 10-, or 15-minute increments, and the Fair Labor Standards Act (FLSA) allows an employer to round employee time to the nearest quarter hour. The FLSA recognizes that it can be impractical to count time down to the minute. An employer, however, can violate FLSA if the employee is not fully compensated for the time they work or if the employer always rounds down. Thus, if an employer rounds down, it must also round up. Of course, if there is a situation where it is practical to count time down to the minute, such as with digital time tracking, then counting each minute eliminates risk from a FLSA rounding claim.  In the scenario where an employer must round, there are some safer ways to do it, such as:  Rounding in favor of the employer despite being more expensive for them. This eliminates risk because it will always favor the employee.  Using the start/stop method. The employer can round down when the employee clocks in and round up when the employee clocks out, or vice versa. As an example, an employee who clocks in at 8:56 AM for a 9:00 AM shift would not be paid for those four minutes. Likewise, an employee who clocks out early at 4:56 PM for a shift ending at 5:00 PM would still be paid for those unworked four minutes. Some employers, however, have been found liable for undercompensating employees1 when this facially neutral policy is not applied neutrally. Setting the time clock to pay in 5-, 10-, or 15-minute increments. As an example, if the employer sets the clock to pay in 10-minute intervals and the employee clocks in at 9:05 AM, then the employer would round down to 9:00 AM. If the employee clocks in at 9:06 AM, then the employer would round up to 9:10 AM.  Regardless of the rounding method chosen, the employer has an obligation to audit their payroll practices to make sure the implementation of the rounding procedure is neutral or favors the employee. The employer cannot rely on a facially neutral policy as a defense if employees are routinely undercompensated. Employers should also clearly identify their rounding policy in the handbook so employees are aware of it.   If the employer has knowledge of its employees working, it must pay them accordingly. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employees' fixed or regular working time or practically ascertainable period of time the employee is regularly required to spend on duties assigned to them. Rounding is only permitted when there are uncertain or indefinite periods of time of a few seconds or minutes duration.2 Employers who do not properly round are subject to FLSA claims and state law claims for underpaid wages.  This article only covers federal statutes, and employers should also check state and local legislation as well comply with any differences with federal law. Each employer has different needs. If you are an employer with questions about how to pay employees or applicable state and federal employment laws, please reach out to an experienced Wilson Elser employment attorney. ________________________________________________________________________________________ 1 Houston v. Saint Luke's Health Sys., 76 F.4th 1145, 1151 (8th Cir. 2023). 2 29 CFR 785.47. 

Jonathan Meer (Partner-New York, NY) and Angela Sekerka (Of Counsel-New York, NY) will present the Wilson Elser Forum webinar “The Shifting Landscape of Fair Housing Law” on September 10, 2026. This webinar will provide a comprehensive overview of the ever-changing landscape of fair housing law, beginning with the foundation of the Fair Housing Act and the key issues involving fair housing discrimination nationwide. The Department of Housing and Urban Development (HUD) has been reworking its guidance across a range of fair housing issues, requiring providers to comply with new standards. As the new administration’s priorities continue to drive these changes, this presentation will explore how compliance with fair housing law is a moving target. It will examine challenges to what is considered reasonable accommodation and the use of criminal background checks in housing decisions. Additionally, the presentation will offer insight into emerging legislation on algorithmic rent-setting and source-of-income discrimination. The session will conclude with guidance on how providers should approach their housing policies and navigate the fluctuating laws of fair housing. 

Jesse Endler (Of Counsel-Philadelphia, PA) and Christopher Flanagan (Partner-Boston, MA) prevailed on summary judgment in the New Jersey Superior Court, Atlantic County, on behalf of Wilson Elser’s insurance company client in a first-party coverage action. The insured sought damages estimated at more than $100,000 for alleged breach of contract and bad faith arising from the client’s denial of coverage for the sudden collapse of the rear wall of its residential property. The collapse caused the rear wall to shift downward 12 to 18 inches, requiring the wall and several stories of decks to be removed and rebuilt. An investigation determined that the residence’s sill plate and framing had sustained prolonged, hidden water intrusion and trapped moisture, resulting in extensive rot, decay, disintegration, and deterioration. The insured admitted, as corroborated by experts for both sides, that the water infiltration had been ongoing for several years ‒ predating both the policy’s inception and the insured’s purchase of the property. Our client denied coverage under policy exclusions for collapse caused by decay and rot and for pre-existing damage. Following discovery, Wilson Elser moved for summary judgment, arguing that the policy language was clear and unambiguous and that under the normal usage of its terms, the policy did not provide coverage for the loss. Chris and Jesse further argued that the client could not have acted in bad faith because its denial was based on the policy’s clear language. The insured countered that the policy language was confusing, provided illusory coverage, and required coverage for the loss, and further alleged that the insurer had acted in bad faith. Following oral argument, the court agreed that the policy language was clear and unambiguous and that the loss was not covered. Because there was no coverage, the court concluded that the bad faith claim could not succeed and granted summary judgment in favor of Wilson Elser’s client, dismissing the case.

Thomas Holmgren (Of Counsel-New York, NY) is among five members of the Hartwick College community selected to receive a 2026 Alumni Award. A member of the Hartwick Class of 2013, Thomas has been named the Alumni Association’s Outstanding Recent Alumnus, recognizing graduates who have demonstrated outstanding and sustained volunteer service to the College.   Thomas was recognized for his extraordinary leadership, perhaps best exemplified by the College’s Moot Court Competition, which he created, directed, and funded. He personally developed the constitutional law cases used in the competition, coordinated multiple rounds of oral arguments, recruited and organized dozens of Hartwick alumni attorneys to serve as judges, and traveled to campus to participate in the final rounds. As one nominator aptly observed, Thomas “has remained deeply committed to giving back to Hartwick and creating opportunities for the next generation of students.” Through the competition, Hartwick students gain invaluable experience in legal analysis, persuasive advocacy, critical thinking, and public speaking. As the College proudly noted in its awards press release, Thomas “has created a legacy that continues to enrich both our students and broader community.”

Only the top 5.3 percent of all practicing lawyers in the nation are selected by their peers for inclusion on The Best Lawyers in America® list. This year, 123 Wilson Elser attorneys were so honored: Birmingham, AL David Hall – Partner David A. Lee ‒ Of Counsel William L. Waudby – Partner Phoenix, AZ Brian Cieniawski – Of Counsel  Los Angeles, CA E. Paul Dougherty Jr. – Partner David S. Eisen – Senior Counsel Diana M. Estrada – Partner William Tolin Gay – Of Counsel Linda Tai Hoshide – Partner Gregory K. Lee – Partner David M. Morrow – Partner Michelle R. Press – Partner David Simantob – Partner Tae S. Um – Partner San Diego, CA Carole J. Buckner – Partner Bruno W. Katz – Partner Patrick J. Kearns – Partner Michael P. McCloskey – Senior Counsel San Francisco, CA William M. Hake – Senior Counsel John H. Podesta – Partner Julie A. Torres – Partner Yakov P. Wiegmann – Partner Denver, CO Emily L. P. Aguero – Partner Jason D. Melichar – Partner Ryan A. Williams – Partner Jane E. Young – Partner  Christopher D. Yvars – Partner Stamford, CT Stephen P. Brown ‒ Partner Douglas M. Connors ‒ Partner Eric W.F. Niederer ‒ Partner Washington, D.C. Robert W. Goodson – Senior Counsel Catherine A. Hanrahan – Partner  Miami, FL  Alan Fiedel – Partner Tanya I. Suarez – Partner Gustavo A. Martinez Tristani – Partner Orlando, FL John Y. Benford – Partner Alicia M. Caridi – Of Counsel Jaime B. Eagan – Of Counsel Nicholas D. Freeman – Partner James M. Kloss – Partner  Leia Leitner – Of Counsel Sean M. McDonough – Partner  Noelle K. Sheehan – Partner  Tampa, FL Michelle Sabin – Of Counsel  Atlanta, GA Vonnetta L. Benjamin – Of Counsel  Allison M. Escott ‒ Of Counsel Matthew Foree – Of Counsel  Parks K. Stone – Partner Chicago, IL  Andrew J. Albright – Partner Michael J. Duffy – Partner Melissa A. Murphy-Petros – Of Counsel Indianapolis, IN Jarrod A. Malone – Partner Louisville, KY James M. Burd – Partner Scott A. Davidson – Of Counsel  Marcia L. Pearson – Partner  Christopher M. Piekarski – Of Counsel  Lynsie Gaddis Rust – Partner  New Orleans, LA Michael Harowski – Partner  H. Jake Rodriguez – Partner Boston, MA  Christopher P. Flanagan – Partner Christine A. Knipper – Partner George C. Rockas – Partner Baltimore, MD Angela W. Russell – Partner  Detroit, MI William S. Cook – Partner Kevin M. Mulvaney – Partner  St. Louis, MO Carolyn M. Husmann – Of Counsel  Daniel E. Tranen – Partner  Jackson, MS John S. Graham – Of Counsel William M. Vines – Of Counsel Charlotte, NC Gerald A. Stein II – Of Counsel  Madison, NJ Maxwell L. Billek – Partner Anne M. Dalena – Of Counsel  Andrew M. Epstein – Partner Peter Espey ‒ Of Counsel Roger R. Gottilla – Senior Counsel  Joseph T. Hanlon – Partner Barbara Hopkinson Kelly – Partner Kurt W. Krauss – Partner William D. Lipkind – Partner  Carolyn F. O’Conner – Partner Joanna Piorek – Partner Thomas F. Quinn – Senior Counsel  James B. Sharp – Of Counsel Katherine E. Tammaro – Partner Sheila Tarabour – Partner Michael P. Turner – Senior Counsel  Mark P. Vespole – Partner  Las Vegas, NV Karen L. Bashor – Partner Michael Lowry – Partner  Sheri Thome – Partner Albany, NY Peter A. Lauricella – Partner Christopher Martin – Partner  New York, NY Jeffrey B. Araten – Partner Eugene T. Boulé – Partner Joseph L. Francoeur – Partner Allison R. Graffeo – Partner Robin N. Gregory – Senior Counsel  Ellen Greiper – Partner  Ashley V. Humphries – Partner  Paul Karp – Partner  Guy J. Levasseur – Partner Frances Malfa – Partner  Stuart A. Miller – Partner  Richard Ng – Partner Lois K. Ottombrino – Senior Counsel Jay A. Potter – Partner  Ricki E. Roer – Senior Counsel  Dov G. Sternberg – Partner Scott H. Stopnik – Partner White Plains, NY  Alan B. Friedberg – Senior Counsel  Michael F. Grady – Partner Jacqueline Hattar – Partner Patricia Lacy – Partner Philip Quaranta – Partner Thomas W. Tobin – Senior Counsel  Portland, OR Michael T. Belisle – Partner  Lloyd Bernstein – Partner  Matthew C. Casey – Of Counsel George S. Pitcher – Partner  Peder A. Rigsby – Partner  Philadelphia, PA  Brian F. Breen – Partner  John T. Donovan – Partner  William F. McDevitt – Partner  Kathleen D. Wilkinson – Senior Counsel  Dallas, TX Craig Brinker – Of Counsel  J. Price Collins – Partner  Ashley F. Gilmore ‒ Partner Jennafer G. Groswith ‒ Partner Stephani R. Johnson – Partner Jarad L. Kent – Partner  James S. Kiser – Of Counsel Jennifer Martin – Partner R. Douglas Noah, Jr. – Partner  Kimberly A. Wilson – Partner  Houston, TX  Kent M. Adams – Senior Counsel Christina C. Huston – Of Counsel Lori D. Proctor – Partner  John R. Sheppard – Partner  Colin S. Sherrod – Of Counsel  Ronald L. White – Of Counsel  McLean, VA Kathryn Anne Grace – Partner  Matthew W. Lee – Partner Peter M. Moore – Partner Jason R. Waters – Partner  Seattle, WA Nicole Brodie Jackson – Partner Erin P. Fraser – Partner E. Penn Gheen – Of Counsel Lorianne Conklin Hanson – Partner Rachel Tallon Reynolds – Partner Evelyn E. Winters – Partner Milwaukee, WI Sarah Fry Bruch – Of Counsel William J. Katt – Senior Counsel  John P. Loringer – Partner 

Kimberly E. Blair (Partner-Chicago) and Maxwell L. Billek (Partner-Madison, NJ) will present the Wilson Elser Forum webinar “Emerging Trends and Landmark Decisions in Lawyer’s Liability” on September 14, 2026. This program provides claims professionals, underwriters, and attorneys with updates on emerging trends, risk factors, and recent landmark decisions affecting lawyers’ liability and legal malpractice exposure. Kim and Max examine developing malpractice risks associated with generative AI, the growth of transactional malpractice claims, the impact of third-party litigation funding on claim resolution, and the continuing significance of conflicts of interest as a leading source of professional liability. Recent case law on vicarious liability, fee-sharing and ethics obligations, proximate causation standards, fiduciary duties in settlement communications, and litigation privilege are also addressed. By the end of the presentation, participants will be better equipped to identify evolving malpractice risks, understand current legal standards governing professional liability, and implement practical risk-management strategies in their practices.

I have been writing about the insurance risks of intoxicating hemp products since 2021, when delta-8 THC gummies first started showing up in convenience stores and gas stations across the country. Back then, our message to the cannabis, hemp, and insurance industries was simple. These products violate the spirit, if not the actual letter, of the 2018 Farm Bill, and the cannabis and hemp industries and their insurers should be wary of a government response. Well, a response from Congress took more than five years, but the response has teeth. The Federal Ban Congress rewrote the federal definition of hemp in legislation passed in late 2025. The changes were originally set to take effect on November 12, 2026, and they are sweeping. Congress has since approved a delay of most provisions to December 11, 2026, but synthetic and lab-converted cannabinoids like delta-8 and HHC remain excluded regardless of dose and subject to the November 12 ban as scheduled. The new law imposes a “total THC” standard that counts all forms of THC, not just delta-9, and caps finished hemp products at just 0.4 milligrams of total THC per container. Industry estimates suggest roughly 95 percent of hemp-derived cannabinoid products currently sold will become federally unlawful under the new definition. Products that exceed these limits will be classified as marijuana under the Controlled Substances Act. The Hemp Industry Fights Back The hemp industry is not going quietly. Both litigation and legislative efforts are underway to prevent the ban from taking effect, and Texas has become ground zero for the courtroom fight. In early August 2026, hemp industry groups sued the Texas Department of State Health Services in federal court after the agency reclassified delta-8 and other hemp-derived THC compounds as Schedule I controlled substances. The plaintiffs argue that the state's ban is preempted by the 2018 Farm Bill, violates due process, and imposes an unconstitutional burden on interstate commerce. They sought a temporary restraining order to halt enforcement. A federal judge, however, declined to block the ban, finding the industry challengers unlikely to prevail on their constitutional claims. A separate state-court challenge is pending before a Travis County judge over related smokable hemp rules, and additional lawsuits have been filed alleging the ban has created a monopoly for the state's medical marijuana program. Similar battles are playing out in Missouri, where the hemp industry is challenging that state's intoxicating hemp ban as unconstitutional. On the legislative front, several bills are moving through Congress aimed at softening or delaying the ban. The most notable is the Hemp Planting Predictability Act, a bipartisan effort to push the effective date back by two years to November 2028, giving the industry and regulators time to develop a workable framework. Other proposals seek to carve out non-intoxicating CBD products or raise the 0.4 mg cap to a more commercially viable threshold. There is real momentum behind some of these efforts, and even the White House has signaled support for protecting non-intoxicating hemp products from the ban’s overreach. The most concrete development happened on August 8, 2026, when the U.S. Senate passed H.R. 6500 by a 90-6 vote, with a provision that would delay the ban on naturally derived hemp THC products from November 12 to December 11, 2026. On September 1, 2026, the U.S. House of Representatives gave the bill final congressional approval by a bipartisan 370-48 vote, sending it to President Trump’s desk. The delay provision was based on the bipartisan Hemp Planting Predictability Act, introduced by Senators Amy Klobuchar (D-MN), Rand Paul (R-KY), and Jeff Merkley (D-OR). Synthetic cannabinoids continue to face an immediate November 12 ban, while naturally derived hemp THC products get a one-month reprieve to December 11. That delay is modest and does not change the underlying law. The President’s signature is expected but remains pending. We expect more lawsuits and more bills. We also expect most of the litigation to fail. The constitutional arguments are creative, but Congress has broad authority under the Commerce Clause to define what qualifies as a controlled substance, and the new definition is clear about its intent. The 2018 Farm Bill’s derivatives loophole, which facilitates products containing delta-8, delta-10, THC-O, THCA flower, and even delta-9 THC extracted from hemp, was never intended by Congress. It took Congress more than five years to close the loophole, but it has now acted. Courts are generally reluctant to second-guess that kind of legislative correction.  The industry’s longer-term legislative goals remain uncertain, including the standalone Hemp Planting Predictability Act (H.R. 7024), which would push the date back by three years. Whether Congress can enact a more comprehensive regulatory framework before December 11 is far from assured.  Companies and Insurers Must Act Now Our advice is don’t wait. Congress has provided a brief reprieve, but hemp companies and the insurers that cover them should be preparing now for December 11, not hoping that a federal judge or another last-minute act of Congress will ride to the rescue. A one-month delay is not a solution. Waiting is the worst possible risk management strategy. The practical fallout from this ban will be felt across nearly every coverage line. Start with product liability and property. When the ban takes effect, inventory that was perfectly legal yesterday becomes a controlled substance today. Product liability policies that were written to cover hemp-derived products may suddenly be covering the sale or distribution of federally illegal marijuana. That raises immediate coverage questions. Does the policy contain an illegal acts exclusion? Is there a controlled substance exclusion? If the insured continues to sell these products after December 11, what happens to the coverage? Underwriters need to be reviewing policy language now and deciding how to address this. Cargo and stock-throughput programs are directly implicated as well. Wholesalers, distributors, and brands that straddle the marijuana and hemp product categories should expect complications in coverage terms, exclusions, and transit insurance for inventory that may be reclassified mid-shipment. If a product leaves a warehouse as legal hemp and arrives at its destination as federally illegal marijuana, who bears the risk? These are not hypothetical questions. They must be answered by December 11. Beyond the insurance policy itself, the collateral risks are diverse. Companies with existing leases may face landlord disputes if the premises are being used to store or sell newly illegal products. Contracts with suppliers and customers must be revisited to understand how risk and loss are apportioned. E-commerce platforms may delist products, cutting off revenue streams overnight. Existing product liability claims related to hemp products may take on a different complexion when the underlying product becomes illegal. Loans secured by hemp inventory could go into default. Investors who backed hemp companies expecting continued legality may pursue claims against management. All this increased uncertainty will likely result in more claims and litigation, which may trigger a policy response. One important nuance to understand is that some states have laws that expressly permit the sale of hemp-derived THC products, and those laws don't automatically disappear because the federal definition has changed. Where a state continues to allow legal hemp product sales, we recommend that insurers and operators treat those situations similarly to the regulated intrastate marijuana model that has been operating successfully for years. The risk management playbook is similar—know your customer, know your state’s regulations, and maintain compliance. There is also a tax dimension that companies cannot afford to ignore. If a hemp company continues selling products that are now federally classified as marijuana, it should expect Section 280E of the Internal Revenue Code to apply. That means most ordinary business deductions vanish, effective tax rates skyrocket, and the economics of the business fundamentally change. The regulated cannabis industry has been living with 280E for years, and it is brutal. Hemp companies that are new to this reality should get tax counsel involved immediately. The intoxicating hemp market was always on borrowed time. We said as much when delta-9 THC gummies started being sold as “legal hemp” out of convenience stores while regulated cannabis operators next door were paying through the nose for compliance. That imbalance was unsustainable. Now the correction is here. The smart move for hemp operators is to diversify, pivot to compliant products or, where state law permits, participate in the regulated cannabis market. For insurers, it’s time to audit your book, update your forms, and make sure you know exactly what you’re covering when December 11 arrives. This article was published in the September 7, 2026, posting of Insurance Journal.

Ian Stewart (Partner-Los Angeles, CA) will present the webinar “Cannabis Move to Schedule III” for the Chartered Property Casualty Underwriters (CPCU) Houston chapter at its September 15, 2026, meeting. Considering the DOJ's April 2026 order rescheduling state-licensed medical cannabis to Schedule III and a DEA hearing on broader rescheduling wrapping up this summer, the cannabis insurance landscape is shifting fast. Ian will discuss how moving cannabis to Schedule III may impact cannabis insurance, breaking down what rescheduling means for underwriting and new capacity, as well as emerging complexities insurers, brokers, and risk managers must navigate. This timely presentation is essential for anyone writing – or considering – cannabis risks.

A defendant’s ability to obtain a psychological examination of a personal injury plaintiff alleging a psychological injury has been under attack in Nevada since 2018. Nevada’s Supreme Court has now decided the latest battle, Davis v. Dist. Ct., 142 Adv. Op. 58 (2026). The plaintiff in Davis alleged physical and psychological injuries. The defendant retained a local neuropsychologist to perform a neuropsychological evaluation. The plaintiff then requested the examiner produce the raw testing data generated during the evaluation, and the court ordered the examiner to produce the data to the plaintiff’s psychological expert and plaintiff’s counsel. The defendant and the examiner produced the data to the psychological expert, but not counsel. They asserted NAC 641.234(3) barred disclosing it to counsel. The Supreme Court disagreed, concluding NAC 641.234(3) “cannot direct the district court’s discovery decisions.” If a court orders the raw testing data produced under a protective order and the psychologist declines to produce it per NAC 641.234(3), then the psychologist risks exclusion from trial. This ruling may significantly complicate psychological examinations in Nevada. Nevada-licensed psychologists are bound by NAC 641.234(3), regardless of their status as a treater or forensic examiner. Davis may place both sides in an impossible conundrum in that defense counsel will want the treater’s raw data just as the plaintiff’s counsel will want the forensic examiner’s raw data. Yet NAC 641.234(3) bars both the treater and the examiner from producing it. Nevada’s psychological community has submitted public comments to the legislature noting the risks from public disclosure of the information. Psychological professional organizations have repeatedly adopted codes concerning testing security. Davis places psychologists with the choice to either comply with a court order and violate their professional obligations or comply with their professional obligations and risk being excluded from trial. The number of psychologists willing to perform forensic examinations, whether for a plaintiff or defendant, seemed to drop after the Powers decision earlier in 2026. That pool may shrink further after Davis. The best hope for a compromise that allows all sides access to the data they need to litigate a case while protecting testing security might be action from the Nevada legislature during the 2027 general session.

Jarad Kent (Partner-Dallas/Tyler, TX) and Jennifer Myers (Associate-Dallas, TX) prevailed on a motion to dismiss in the 439th District Court, Rockwall County, Texas, on behalf of Wilson Elser’s client, a medical consulting company. The case arose from the sale of residential property in Rockwall County. The plaintiff, the property purchaser, brought suit against the sellers, the sellers' real estate agent, and our client, a medical consulting company owned by one of the sellers, alleging fraud based on the alleged failure to disclose a defect in the property. Jarad and Jennifer filed a Texas Rule 91a motion to dismiss, arguing that the plaintiff's claims against the client had no basis in law or fact. Following a hearing on the motion and additional briefing by both parties, the court granted Wilson Elser’s motion and dismissed claims against the firm’s client with prejudice.