In a system where the rule of law is determined by adversarial process, the fact that companies cannot afford to go to trial because of the collateral consequences of a long investigation or a conviction creates an imbalance that is not healthy for the cause of justice, says George J. Terwilliger III, global head of White & Case LLP's white collar practice group.
There is a tendency in the environmental field to think that the next big wave of litigation is just over the horizon, and that it will be the tsunami that will change everything. Most of those waves turn out to be ripples, but climate change and the responses to it may be the real thing, says R. Morgan Gilhuly, managing partner of environmental law firm Barg Coffin Lewis & Trapp LLP.
The latest round of amendments and additions to anti-corruption laws should give rise to a substantial number of sizable investigations and prosecutions. Companies and individuals that do not heed potent enhancements to the Foreign Corrupt Practices Act and new anti-corruption laws in other countries, such as the U.K., may suffer severe consequences, says Anthony Pacheco, deputy chief of Proskauer Rose LLP's corporate defense and investigations group.
State and federal courts in California have developed that state’s unconscionability law to a point that effectively invalidates any standardized consumer agreement that does not permit classwide dispute resolution. This has introduced unpredictability into the dispute resolution programs of companies nationwide, says Joseph M. McLaughlin, a leader in Simpson Thacher & Bartlett LLP's litigation department.
Consumer class actions, especially in California, have strayed so far from their intended purpose that they are almost unrecognizable. In California, and in many other states, they amount to an uncodified litigation tax. The public is right to be cynical, and they don’t even know the half of it, says William L. Stern, co-chairman of Morrison & Foerster LLP's consumer class action litigation practice group.
Statistics show that nearly all class actions end with a settlement — even when the defendant defeats certification! We need to educate the courts about this unlevel playing field so that they will look more closely at initial motions attacking the pleadings and appreciate the burdens that a decision to go forward with a flawed case will create, says Gail E. Lees, chair of Gibson Dunn & Crutcher LLP's class actions practice group.
We need better ways to deal with frivolous cases and technical violations that result in little or no injury, but that are pursued aggressively and force companies to incur significant fees in defending the claims, says John Nadolenco, co-leader of Mayer Brown LLP's consumer litigation and class action group.
Arnold & Porter LLP antitrust and competition practice chair Bill Baer is a man who knows what the government wants. As the former head of the Federal Trade Commission's Bureau of Competition, he can resolve government concerns before a case ever needs to be brought — a skill that has landed him a spot on Law360's list of the 10 Most Admired Competition Attorneys.
While the U.S. Court of Appeals for the Ninth Circuit may be large, it by and large functions well, and the arguments for dividing it are weak, says Jerome B. Falk Jr., a senior member at Howard Rice Nemerovski Canady Falk & Rabkin PC and a certified specialist in appellate law.
Executive compensation is being overscrutinized and overregulated today. Obviously, corporate greed and lack of discretion are to blame, says David S. Howard, of counsel in the business and tax group of Hoge Fenton Jones & Appel Inc.
For corporate clients, the biggest challenge lately has been the inability of businesses to get financing to do their deals, as the banks and financial institutions that are willing to lend are requiring borrowers to jump through a great number of hoops to get the deals done, says Yuliya A. Oryol, assistant chair of Nossaman LLP's corporate practice group.
The length of time it takes an appeal from start to finish, plus the cost of doing it correctly, can be very frustrating for clients, says Richard A. Derevan, a partner and appellate specialist at Snell & Wilmer LLP.
By far the most difficult legal challenges facing corporate finance clients are potential changes in the law that are under consideration in Congress, one of the most important of which is the taxation of carried interest, says Stephen M.L. Cohen, chair of Choate Hall & Stewart LLP's private equity group.
Most people — even many attorneys — do not understand the appeals process, what it can fix and what it can't, says Kira L. Klatchko, vice chair of the appellate group at Best Best & Krieger.
In light of the enormous number of patents out there — and the enormous amount of patented content in products like laptops, cell phones, set top boxes — there has got to be a better way and better guidelines for assessing patent damages, says Robert Van Nest of Keker & Van Nest LLP, who specializes in intellectual property litigation.
In the federal circuit courts of appeal, and especially in the Ninth Circuit, the length of time between a notice of appeal and a decision by the court now borders on outrageous in many cases, says Frederick D. Baker, co-chair of Sedgwick Detert Moran & Arnold LLP's appellate practice group.
Virtually every aspect of wage-and-hour collective actions (and, in California, class actions) needs to be reviewed and revamped, says Michael Kun, national co-chair of the wage-and-hour, individual and collective action group at EpsteinBeckerGreen.
The next wave of cases in the labor and employment area may come as a result of changes in federal labor law: For example, if the Employee Free Choice Act is enacted, expect to see an increase in union organizing and litigation resulting from such efforts, says Larry C. Drapkin, chair of Mitchell Silberberg & Knupp LLP's labor and employment practice.
Two of the biggest problems in the appeals court process are expense and delay, even in simple cases, says Leonard Feldman, a principal in the litigation group at Stoel Rives LLP with a focus on appellate matters.
Panels should allow more time for oral argument and provide the parties with a list of questions for the argument so the lawyers can focus their comments on the things in which the court is most interested, says Kelly Woodruff, a complex commercial litigation partner and a member of the appellate litigation group at Farella Braun & Martel LLP.
Recently, the California Department of Conservation, Division of Oil, Gas & Geothermal Resources issued two key documents relating to hydraulic fracturing. Of keen interest is whether these new rules will permit development of the Monterey Shale in a manner that is competitive with the development of oil reserves elsewhere — or whether government involvement will delay development of the world’s largest, deep shale-oil play, say attorneys at Latham & Watkins LLP.
A recent class certification denial in a false advertising action challenging Chipotle's "naturally raised" meat claims seems to stem from the growing trend among federal courts of barring class certification on ascertainability grounds, say David Conway and Edward Boyle of Venable LLP.
State attorneys general gave online privacy protection increasing attention in 2013. There was mounting pressure from attorneys general to expand privacy protections, a rising number of enforcement actions and increased coordination among states, says Jason Crawford, a federal law clerk.
Texas, Nevada and other low- and no-tax states are trying to woo California’s high-earners and business owners, for whom Proposition 30’s passage in November 2012 was a “cross the Rubicon” moment. But moving one’s tax residence from California is not a simple matter of finding a crash pad in Vegas and sending a goodbye note to Sacramento, says Douglas Schwartz of Nossaman LLP.
What is the thinking as to whether leaky air conditioner cases warrant multidistrict litigation treatment? On Dec. 5, the Judicial Panel on Multidistrict Litigation heads to Vegas to find out. This will bring a temperature shift in more ways than one from the September hearing, where the panel considered a potential MDL proceeding arising from allegedly defective clothes dryers, says Alan Rothman of Kaye Scholer LLP.
The decision in County of Santa Clara v. Superior Court of Santa Clara was based on policy, not statute. The California Supreme Court was convinced by the theory that government attorneys could maintain control over private counsel retained by contingency fees. The reality of the experience with the Orange County Water District emphatically demonstrates otherwise, say Jeffrey Dintzer and Nathaniel Johnson of Gibson Dunn & Crutcher LLP.
Two important events this year make clear that California's anti-deficiency statutes not only protect borrowers in nearly all circumstances when dealing with a residential loan but also trump any separate agreement the lender may have with a borrower for the payment of any deficiency following either a foreclosure or a short sale, say Sylvia Arostegui and Eunice Majam-Simpson of Nossaman LLP.
Five years ago, the Federal Trade Commission waded into the debate regarding the competition issues posed by “follow-on biologics.” Some three years after Congress provided a pathway for approval of such products, no follow-on biologic has been approved by the U.S. Food and Drug Administration. Now the FTC is revisiting the issue — particularly state restrictions, say attorneys with Wilson Sonsini Goodrich & Rosati.
A recent California appeals court decision provides a benchmark for plaintiffs to plead and prove claims under the California Medical Information Act that is consistent with prior nonhealth-care decisions. Plaintiffs must do more than plead mere loss of data, say attorneys with Morrison & Foerster LLP.
The stars of the reality show "Dog the Bounty Hunter" recently succeeded in convincing the California labor commissioner to side with them in a dispute against their former manager/producer. The case provides a valuable lesson for managers who have side agreements with others in connection with their clients’ projects, says David Mark of Buchalter Nemer PLC.