2021 Insights: Litigation/Controversy

Skadden's 2021 Insights

Despite Pandemic-Related Disruptions, Securities Class Action Filings Remain High With No Signs of Slowing
Despite unprecedented disruptions to the court system from the COVID-19 pandemic, plaintiffs continued to bring securities class actions at elevated levels in 2020 — a sign that filings will remain high in the year ahead.

Biden Administration Signals Its Intention To Be Tougher on Corporate Crime
The Biden administration has signaled its intention to bolster enforcement of corporate crime. Corporations should expect DOJ policies and priorities that emphasize individual culpability and incentivize robust corporate compliance to remain unchanged, while policies that suggest a more business-friendly approach to corporate prosecutions are likely to be amended or abandoned.

Transition From Trump to Biden May Bring Less Change to Antitrust Enforcement Than Expected
Over the past four years, the DOJ's Antitrust Division and the FTC applied novel theories to increase scrutiny of vertical mergers or acquisitions of potential or nascent competitors, particularly in the technology sector. In doing so, they paved the way for continued aggressive enforcement by the Biden administration.

Post-Brexit, a More Demanding UK Merger Review Process
On January 1, 2021, the U.K. Competition and Markets Authority became a merger regulator independent of the European Commission. The CMA promises to be a competition authority to watch in global M&A in 2021.

Impact of Brexit on UK and EU Sanctions Frameworks
The U.K. adopted an autonomous financial sanctions regime post-Brexit. The U.K. and EU have both stated that they intend to coordinate sanctions policy as much as possible. And with the U.K. having historically played a role in shaping EU sanctions policy, we expect it to continue to take a proactive approach under the new regime.

Developments in Delaware Corporation Law
The Delaware Court of Chancery’s docket exploded with expedited “broken” deal litigation in 2020, driven by the impact of COVID-19. Meanwhile, stockholder plaintiffs remained focused on claims involving controlling shareholders and increased focus on claims against officers for breaches of the duty of care. There were also significant developments in connection with stockholder statutory books-and-records requests.

The State of Congressional Investigations in 2021
Under the Biden administration, corporations can expect the DOJ and congressional investigations to place greater focus on the private sector. Democrats in the 117th Congress likely will focus on issues including the response to the COVID-19 pandemic, environmental concerns, drug pricing and antitrust questions surrounding Big Tech.

Fifth Circuit To Weigh Enforceability of Make-Whole Premiums in Chapter 11
A recent decision now on appeal represents the latest foray by a bankruptcy court into two disputed areas of law that can materially impact creditor recoveries as well as a debtor’s flexibility in confirming a plan of reorganization. If In re Ultra Petroleum Corp. withstands appeal in the U.S. Court of Appeals for the Fifth Circuit, it will represent a victory for sophisticated creditors and will be a significant consideration for prospective debtors when evaluating their optimal filing venue.

US Courts Gain Prominence as ‘Anchor’ Forum for Enforcing International Arbitration Awards
A growing number of cases in which private parties are seeking enforcement of very large arbitration awards are percolating through the U.S. courts. These cases are likely to remain a feature of the landscape for some years and will therefore continue to present challenges for litigants, financial institutions and courts alike, as award creditors will continue to seek to attach bank accounts, shareholdings and other assets through judicial proceedings in the United States.