In today’s environment there is far more transparency about both the risks of litigation exposure and its consequences, requiring companies to manage risk more actively and ensure as much compliance and containment as possible at the front end. Regulators, however, have made this more challenging, in terms of both the complexity of the rules introduced and their tendency to apply these rules beyond their borders. All of this reinforces the need for companies to map out legal and regulatory risks.
What is the most critical trend impacting how today’s general counsel can effectively manage litigation risk?
More than ever, general counsel face conflicting pressures in litigation—to be cost-effective, to manage risk in a complex regulatory and globalized environment, and to win. Balancing those pressures involves dedication and expertise. A strong relationship between inside and outside counsel, an open dialogue about the company’s objectives in a case or investigation, and a focus on what it will take to get there are critical, all while weighing the risks along the way.
What is the top trend emerging in U.S. employment law that will impact our clients in the year ahead?
Our clients will continue to face new challenges from the Obama administration as it seeks to impose new regulatory burdens on employers in almost every aspect of employment law. Among other things, we expect to see new wage and hour regulations, new mandates on government contractors, new NLRB dictates, and new rules relating to asset investment in 401(k) plans. We will actively assist our clients in deciding the most appropriate response to these initiatives.
What is the No. 1 thing companies can do to effectively protect their intellectual property portfolios, in light of recent trends in patent litigation?
Companies need to be ready to “litigate” before the U.S. Patent Trial and Appeal Board, given the new inter partes and post-grant review proceedings made available by the America Invents Act. Today, in addition to patent litigation in a district court, defendants often initiate one of these post-grant proceedings before the board. Success before the board is critical for patent owners because if they lose in the U.S. Patent Office, they may not be able to continue the district court litigation.
What issue will most impact complex litigation strategy for global businesses in the coming year?
Businesses will experience greater challenges defending against class action lawsuits, as U.S. federal and state courts are more routinely allowing these cases to proceed to the class certification stage. This makes merely the defense of such cases cost-prohibitive for many companies, and the lawyers defending them must find innovative ways to contain legal costs during the defense of such cases as they seek to resolve them in the most expeditious way possible.
What are the top trends impacting our clients this year in the international arbitration arena?
There are a confluence of factors transforming international arbitration into a mainstream mechanism for resolving complex commercial disputes. First, we’re continuing to see bigger, more complex international arbitrations, with more parties, more disputed issues, more parallel proceedings, and greater amounts at stake. Second, many, if not most, sophisticated substantial commercial relationships now have some international element. These are multi-year, not just single-year, trends—and we expect to see them continue in the years ahead.
We won a major trial victory on behalf of Manouch Moshayedi, the founder and former chief executive and chairman of sTec, Inc., in one of the largest insider trading cases ever brought by the SEC. The complaint alleged that our client engaged in improper insider trading and violated the anti-fraud provisions of the federal securities laws in connection with a secondary offering of approximately US$267M worth of sTec stock owned by Mr. Moshayedi and members of his family. The SEC also alleged he made material misrepresentations and omissions. Following an 11-day trial, the federal court jury deliberated for just four hours before delivering a complete defense victory for Mr. Moshayedi on all of the SEC’s claims.
We achieved a complete victory for Capital One before the “Rocket Docket” court in the Eastern District of Virginia in a high-profile patent dispute. The plaintiff, N5, had accused Capital One and others of infringing a patent for a method of authenticating a mobile user. The court held a Markman hearing to construe the scope of the patent, and we successfully argued that N5’s patent required mobile users to perform specific steps. We then moved for summary judgment of no infringement, arguing those specific steps were not performed by users of Capital One’s online banking platform. The court agreed, granting summary judgment of no infringement, which N5 declined to appeal.
We represented Fujifilm Medical Systems in securing an important decision in a wrongful discharge case. The plaintiff, a former executive vice president, brought numerous claims against our client stemming from his termination, including claims for national origin and age discrimination, defamation, and tortious interference with business expectations. The jury rejected his discrimination and defamation claims and permitted him only sums due under his employment contract and an award on his tortious interference claim. On appeal, we convinced the Circuit to affirm the trial win and reverse the jury’s tortious interference award, delivering an important victory for our client.
A dozen top Investigations and White Collar Defense lawyers joined our practice in 2014