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.
The pros of using predictive coding far outweigh the cons. Given the heavy pressure on law firms and in-house counsel to reduce discovery costs, as well as the Justice Department's recent stance on the subject, it appears predictive coding will continue to emerge from the obscure world of legal technology to the mainstream of legal practice, say Michael Moscato and Myles Bartley of Curtis Mallet-Prevost Colt & Mosle LLP.
When U.S. District Judge Naomi Reice Buchwald dismissed a consolidated, multidistrict batch of antitrust and racketeering suits in Manhattan earlier this spring, she suggested plaintiffs seeking to recover from banking giants at the heart of the interest rate-fixing scandal might have better luck with securities fraud claims. But those plaintiffs will need to be lucky indeed. Two recent developments show that obstacles are inherent and, perhaps, insurmountable, say attorneys with Choate Hall & Stewart LLP.
In an effort to combat the $32 billion human trafficking industry, California law now requires certain businesses to post public notices regarding slavery and human trafficking. By doing so, the recently passed bill has effectively made these establishments aware that they may already be unwitting participants in the human trafficking industry, say attorneys with Gordon & Rees LLP.
The California Supreme Court's upcoming decision in Hartford Casualty Insurance Co. v. Swift Distribution Inc. will resolve a hot debate about the scope of implied disparagement liability under California law, likely determining whether insurers must defend lawsuits involving allegations of intellectual property infringement, unfair competition and false advertising, says Tyler Gerking of Farella Braun & Martel LLP.
Recently, two firms have filed class actions against three Catholic Church-affiliated health care facilities, claiming that their pension plans should be subject to the Employee Retirement Income Security Act. These cases could have a profound effect on all church plan sponsors, regardless of whether they have previously obtained favorable church plan rulings, say attorneys with Drinker Biddle & Reath LLP.
The California Air Resources Board has again been sued over its implementation of the Global Warming Solutions Act in Morning Star Packing Co., et al. v. CARB, which resembles an earlier action brought by the California Chamber of Commerce. Petitioners of both cases face the difficult challenge of convincing the court to derail a massive regulatory scheme that is now well underway, say attorneys with Marten Law PLLC.
Impatience with the pace of Toxic Substances Control Act reform at the federal level is understandable, but substituting individual state action for a perceived lack of federal action may be the classic example of a cure which is worse than the disease. Many think California’s Safer Consumer Product Regulations now prove that, says Ward Benshoof of Alston & Bird LLP.
Businesses tend to settle frivolous accessibility discrimination lawsuits brought under the Americans with Disabilities Act, but Eddie Bauer LLC recently fought back, which turned out to be the right decision. The U.S. District Court for the Central District of California found in favor of the retailer on all claims and made significant rulings, providing useful support for other defendants who want to fight frivolous lawsuits, say attorneys with Seyfarth Shaw LLP.
The Ninth Circuit ruling in In re Fitness Holdings International Inc. and similar decisions allowing recharacterization of debt as equity all send a single clear message: Although lawyers can structure a transaction to look like debt, bankruptcy courts have the authority to determine what the transaction really is and are not bound by what it is called, say Ira Herman and Evelyn Breithaupt of Thompson & Knight LLP.
In McBurney v. Young, the U.S. Supreme Court has permitted the still-uncommon practice of state legislatures to restrict use of their freedom of information laws to citizens of the states. But states should not race to adopt citizens-only provisions in their freedom of information laws, say John Borger and Leita Walker of Faegre Baker Daniels LLP.