2020 Insights: Litigation / Controversy

Skadden's 2020 Insights

2019-20 Supreme Court Update
The Supreme Court’s 2019-20 term is receiving substantial attention for cases involving signature initiatives of President Donald Trump’s administration. But the Court also maintains an extensive docket directly relevant to the business community, including important disputes concerning workplace discrimination, challenges to agency enforcement, copyright law and stock-drop litigation.

Securities Class Action Filings Continue Record Pace
With more than 400 securities class actions filed in federal courts for the third consecutive year, the threat of litigation remains high for public companies, with trends such as event-driven litigations and increased state court filings impacting the securities litigation landscape in meaningful ways for defendants. Against this backdrop, the impact of several recently decided and one pending U.S. Supreme Court cases will become more clear in 2020.

DOJ Emphasizes Transparency and Encourages Cooperation
Over the past year, the Criminal Division of the U.S. Department of Justice has continued its efforts to enhance transparency with respect to the DOJ's prosecutorial decision-making. Ironically, increased transparency — and the increased cooperation that the DOJ seeks as a result — can also create risk for the department when it prosecutes individuals with information obtained by a cooperating institution.

Key Developments in Delaware Corporation Law
In 2019, Delaware corporation law largely was shaped by post-closing suits for money damages against directors who had approved mergers or acquisitions. The Delaware courts also provided valuable insight to directors charged with monitoring risk and illuminated the standards by which director independence will be measured. Additionally, stockholder inspection rights continued to evolve under Section 220 of the Delaware General Corporation Law.

2020 Class Action Outlook
Several cases at the circuit court level have the potential to significantly influence class action law in 2020, including a Sixth Circuit ruling that may determine the future of “negotiation” class actions, and pending decisions that will address nationwide class actions in the wake of the U.S. Supreme Court's ruling in Bristol-Myers Squibb Co. v. Superior Court of California.

Enforcing International Arbitration Awards: US Courts Achieve Prompt and Efficient Enforcement, With Safeguards
Recent U.S. court decisions demonstrate that international arbitration remains a widely used and potentially attractive method for resolving international business disputes, largely due to the relative ease of enforcing awards under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral. However, U.S. courts are sensitive to cases where a purported foreign "award" was not genuine and will refuse enforcement where there are serious questions.

Proposed Rule Could Substantially Affect ‘Disparate Impact’ Claims Under the Fair Housing Act
A rule recently proposed by the U.S. Department of Housing & Urban Development may provide additional defenses for lenders in "disparate impact" discrimination claims under the Fair Housing Act.

The State of Congressional Investigations Heading Into 2020
In 2019, congressional oversight committees in both the House and Senate investigated a wide range of private sector industries, a trend likely to continue in 2020. Companies should consider proactive measures to address business practices or policies that could come under congressional scrutiny.

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