August 1, 2019
Three Trending Litigation Areas to Keep an Eye On
Litigation funding is expected to grow at a rate of 20-30% over the next few years, and while companies are taking fewer cases to trial, the cases they are litigating are massive, expensive and have significant impact on their businesses. Litigation spending is expected to increase by $2.5 billion this year alone. Here are three trending litigation areas to watch.
Litigation Trend No. 1 – Torts: The Rise of Consolidated Litigation
In the personal injury and product liability sphere, there has been an increasing number of multi-plaintiff trials, specifically class-action lawsuits and multidistrict litigation. Last year, 54% of companies faced class-action lawsuits and spent $2.46 billion, a 10% increase from 2017. Multidistrict litigation, a far more recent and complex development, made up 52% of the civil docket before U.S. district judges last year in 256 multidistrict suits containing over 125,000 individual cases.
Relating to multidistrict litigation, last year a jury in the Circuit Court of the City of St. Louis delivered a $4.69 billion verdict against Johnson & Johnson on behalf of a group of women claiming that the company’s talc-based products caused them to develop ovarian cancer. Since then, several judges across the U.S. have ordered the company to pay additional sums to plaintiffs with similar claims.
This trend of multi-plaintiff trials is causing some concern, as the more plaintiffs there are, the more likely a jury is to rashly deliver a verdict in their favor. In the C&M 2019 Litigation Forecast Report, mass tort litigation expert Andrew Kaplan explained, “If you have one plaintiff saying this product caused injury to me, a jury can judge that based on the facts of that case. If there are six people who are claiming similar things, it suggests that there is no issue about causation—that the injury actually happened. Juries think, ‘Why else would there be so many people in this trial?’”
Judicial backlash against frivolous instances of this practice may be emerging: in a 2016 surgical mesh case, when Judge Clay Land realized that the plaintiff pool had been expanded from 22 to 850 with many bogus claimants, he threw the case out and threatened the plaintiff’s lawyers with severe sanctions. He also wrote a blistering five-page order, calling for attorneys and judges across the country to exercise caution when considering consolidated litigation.
If you enjoy a challenge and are interested in working in an evolving field, mass tort is an ideal area.
Litigation Trend No. 2 – Labor and Employment: An Increasing Number of Harassment Claims
Ever since the #MeToo movement captured the public’s attention in 2017, a growing number of men and women have come forward to make harassment claims against coworkers and employers who treated them inappropriately in or outside the workplace. According to the Equal Employment Opportunity Commission, the organization filed 50% more harassment lawsuits last year than they did in 2017.
The number of lawsuits is only expected to rise, and the ensuing litigation is often elaborate and time-intensive. According to a 2019 Litigation Forecast, where there have been many complaints raised and individuals terminated, few cases have been fully litigated.
As reported by the Associated Press, around half of U.S. states have enacted laws regarding #MeToo issues, and more are anticipated to follow their lead. Many of these laws are focused on eliminating non-disclosure agreements and forced arbitration related to harassment, which means additional lawsuits as well as transparency about complaints.
In addition to the large amount of work that labor and employment attorneys can find in lawsuits related to the #MeToo movement, there is a growing demand for legal professionals to aid employers in revising their HR policies and employee handbooks. In the wake of this movement, many individuals are unwilling to work for companies that don’t have explicit systems in place to prevent harassment and discrimination, and proper legal syntax is essential in giving them that protection. Sound interesting?
Litigation Trend No. 3 – Intellectual Property: Technology and Fair Use in the Spotlight
Last year, the landmark Oracle v. Google case set a controversial but major precedent for intellectual property lawsuits. For the past 20 years, a multitude of software developers have used Sun Microsystems’ (purchased by Oracle in 2010) Java programming language to code their programs. But when Google introduced its Android smartphone operating system using Java APIs, Oracle sued Google for copyright infringement over use of those APIs. Google claimed its use of Java fell under fair use, as developers had assumed for years, but they lost, and the Federal Circuit ordered them to pay $8.8 billion in damages.
The Federal Circuit’s decision essentially ends the fair use argument according to a statement from Arthur Beeman, a partner in Crowell & Moring’s Intellectual Property and Litigation groups. “That has been widely viewed as something that will have a chilling effect on development and innovation in the industry,” He said, “There are a lot of companies that think they are working under the umbrella of fair use, and now they may not be.” On the other side of the coin, that decision may reinforce the hand of companies with technology-based intellectual property and inspire them to file massive lawsuits of their own.
According to a Norton Rose survey, 29% of businesses anticipate more technology and innovation disputes this year, and are concerned about the relative high cost of such suits. Though the U.S. has the second highest number of intellectual property litigation cases of any nation in the world, the time and cost factors related to obtaining patent protection has led to increased use of trade secrets. As a result, trade secret litigation has tripled since 2016.
If you’re a legal professional interested in a litigation-related career, JurisTemps can help. We’ve been servicing St. Louis’ legal community for more than 20 years, so our long-time relationships with St. Louis-based law firms and enterprise companies can give you an edge on the competition. If you’re serious about your next career move, we’re serious about helping you find and successfully apply for your next position.