2019 Insights: Litigation / Controversy

Skadden's 2019 Insights

2018-19 Supreme Court Update
Much of the attention on the U.S. Supreme Court has concerned its composition or its handling of cases involving some of the current administration's signature initiatives. But the Court’s extensive docket includes potentially significant disputes relevant to businesses, including those involving administrative law, the First Amendment, antitrust, securities, arbitration and class actions.

Securities Class Action Filings Show No Signs of Abating
In addition to a significant number of securities litigation cases brought by those objecting to mergers, filings in 2018 included a large number of more traditional stock-drop cases. We expect this trend to continue, particularly if the volatility in the markets extends into 2019.

DOJ Policies Aim to Reduce Enforcement Burden on Cooperating Entities
The DOJ’s policies in 2018 represented a deliberate change in tone and a growing sensitivity to the burdens companies face under investigation. But because the DOJ remains committed to individual prosecutions, companies can expect the department to continue to seek their assistance in investigating the conduct of culpable employees.

Expanding Theories of Liability in the #MeToo Era
Allegations of sexual misconduct in the corporate context have increasingly been followed by derivative actions and securities fraud claims since the #MeToo movement gained traction in 2017. An understanding of the nature and focus of shareholder suits in this context can assist public companies, their executives and board members in determining how best to avoid and manage this emerging litigation risk.

Compliance Investigations in China Take On New Urgency
Companies concerned about heightened Chinese scrutiny of their China operations in the current trade climate are seeking to ensure that any compliance-related issues are promptly detected, investigated and remediated. Clients are advised to pay attention to, among other issues, the use of WeChat for business use and protecting the attorney-client privilege.

Key Delaware Corporation Law Developments in 2018
A number of significant decisions in the Delaware courts in 2018 are likely to have ripple effects throughout 2019. Among them were a series of cases that further developed the parameters of the Corwin and MFW doctrines and the first-ever Delaware case approving the termination of a merger because of a material adverse effect.

Significant Rulings Expected for Ongoing Mass Tort, Consumer Class Action Issues
Significant developments are expected in 2019 on issues that have been percolating in the mass tort and class action litigation arena for several years, including arbitration, cy pres, preemption and personal jurisdiction. Litigation reform efforts, however, may stall out in the newly elected Congress.

Trade Secrets Take Center Stage, and Contracts Play a Lead Role
Trade secrets have long been legally recognized but only recently have begun to share equal billing with other forms of IP protection. Enforcement under the Defend Trade Secrets Act indicates that tailored agreements may be the best protection against misappropriation of trade secrets.

Preparing for Democratic Oversight Investigations
Companies should anticipate that House Democrats will launch a number of investigations that reach beyond President Trump and his administration, and should be prepared with a game plan for responding to a subpoena or other inquiry in the event they are impacted by a congressional investigation.

International Arbitration Community Turns Its Focus to Cybersecurity
Over the past year, the Draft Cybersecurity Protocol for International Arbitration has shaped the discussion of cybersecurity in arbitration proceedings. The final document is expected to be released in 2019 and likely will provide a framework for cybersecurity measures to be considered based on the unique circumstances of each case.

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