Benesch Investing in the Transportation & Logistics Industry Conference – Thought Leader Wrap-Up

Employers have regained greater flexibility to address offensive or abusive employee conduct that occurs during union activity or other activity protected by the National Labor Relations Act. On September 23, 2026, the National Labor Relations Board (the “Board”) issued a significant decision in Lion Elastomers LLC, 375 NLRB No. 41, restoring the prior standard for evaluating discipline when employee misconduct occurs during protected concerted activity from General Motors LLC, 369 NLRB No. 127.

A growing circuit split is reshaping the scope of Section 230 immunity. While the Fourth and Ninth Circuits continue to view algorithmic recommendations as protected publisher conduct, the Third Circuit has taken a narrower approach, holding that certain algorithm-driven content recommendations may constitute a platform’s own conduct and therefore fall outside Section 230’s protections.

The SDNY Bankruptcy Court’s written decision in 1300 Desert Willow builds on the framework established in Mako, providing additional guidance on when a debtor can overcome the presumption that an oversecured creditor is entitled to post-petition default interest at the contractual rate.