Weil, Gotshal & Manges LLP
Litigation
Trends 2019
Dear esteemed colleagues and friends,
It is our pleasure to present the 2019 edition of Weil’s Litigation
Trends Report, in which we offer our cross-practice assessments
and predictions for the coming year.
As in past years, we survey the changing regulatory landscape
from a variety of perspectives. We assess the Department of
Justice’s (DOJ) continuing efforts to refine key aspects of
corporate enforcement, such as coordination with domestic and
foreign regulators to avoid so-called “piling on” of penalties, and
the factors prosecutors should consider when determining
whether to appoint a corporate monitor. We also prognosticate
about the future of merger reviews and cartel enforcement
under the newly established leadership both at the DOJ’s
Antitrust Division and at the Federal Trade Commission (FTC),
as well as what to expect from the DOJ’s shift of enforcement
priorities towards new areas of anticompetitive behavior, such
as algorithmic pricing. Further, we reflect on the potential
ramifications of the DOJ’s “China Initiative,” in which the
National Security Division is focusing on curtailing theft by
Chinese companies of U.S. trade secrets through stepped-up
criminal prosecutions.
Litigation Trends 2019
Our litigators also analyze the impressive and ambitious
agendas of local, state, and federal legislatures, which have
resulted in significant bills that could affect our clients in a
number of ways. For example, we investigate the federal Music
Modernization Act, which has been widely hailed as the most
significant copyright legislation in decades, and will
dramatically alter both the music licensing process and
music-industry litigation over the coming years. At the state
level, we review the passage of significant legislation limiting
the use by employers of restrictive covenants in employment
agreements, including the Massachusetts Noncompetition
Agreement Act, which goes further than nearly any other state
law and likely signals the continuation of state-level scrutiny of
post-employment covenants not to compete. And, importantly,
we take stock of the more than 125 bills introduced (and in
some cases, passed) in legislatures across the country in the
wake of the#MeToo movement that address everything from
corporate anti-sexual harassment policies and training
programs to the use of mandatory arbitration of sexual
harassment claims.
Moving from legislative chambers to courtrooms, we turn our
attention to the impact – and potential ramifications – of recent
and pending appellate decisions. We assess the growing body of
rulings that impacts the contours and application of various
provisions in arbitration agreements, as well as the Federal
Arbitration Act itself, including a number of recently decided
(or soon-to-be decided) U.S. Supreme Court cases. We also
examine the Supreme Court’s coming decision in Apple v.
Pepper, which could dramatically reshape more than 40 years
of antitrust precedent established in Illinois Brick, and bring
about a flood of federal antitrust suits brought by indirect
purchasers. Likewise, we address the most recent impactful
patent appeals, including the Supreme Court’s opinions in SAS
Institute, which we anticipate will change litigants’ evaluation of
IPR proceedings as part of overall patent litigation strategy, and
WesternGeco, which, depending on how the Federal Circuit
David Lender
Co-Chair of Weil’s
Litigation Department
Jonathan Polkes
Co-Chair of Weil’s
Litigation Department
In This Issue
2 Antitrust
7 Complex Commercial Litigation
13 Employment Litigation
20 International Arbitration
25 IP/Media
29 Patent Litigation
32 Product Liability
34 Securities Litigation
36
White Collar Defense,
Regulatory and Investigations
rules in a subsequent case, could open the door for patent
owners to broadly recover for foreign sales. Finally, we focus on
circuit splits that may draw Supreme Court interest, including:
a more acute division regarding the admissibility of evidence at
the class certification stage, which was furthered by the Ninth
Circuit’s 2018 Sali decision; and a potential split between the
Second and Ninth Circuits that threatens to upend more than
a decade of accepted authority regarding copyright liability –
and cause uncertainty for any online media stakeholder.
Lastly, we turn our attention to changes in judicial policy and
practice. For example, we explore the combined impact on class
action litigation strategy of the Supreme Court’s recently
approved amendments to Rule 23, and the Northern District of
California’s November 2018 updates to its procedural guidance
for class action settlements. We also review the advent of
digital transformation in a number of international arbitration
fora – including e-filing systems, e-briefs, videoconferencing
capabilities, and, perhaps in the future, artificial intelligence –
all of which have the potential to make arbitration faster, more
cost-effective, and easier to administer.
As always, please do not hesitate to reach out to either of us,
our practice group leaders (listed on the inside back cover),
or your usual Weil contact if you would like further information
on any of the enclosed topics.
We look forward to the opportunity to work with you this year.
