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.
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