2022 Insights: Litigation

Skadden’s 2022 Insights

Issues on the Horizon at the US Supreme Court: 2022 and Beyond
In the near future, the Supreme Court could address business issues such as preemption of state employment laws, web hosts’ liability for social media content and even crowdfunded test cases.

Despite Last Year’s Decline in Filings, Securities Litigation Will Likely Pick Up in 2022 Due to Plaintiffs’ Continued Focus on SPAC Transactions and Event-Driven Litigation
Despite a decline in new securities class actions in 2021, we anticipate filings will increase this year as plaintiffs continue to focus on SPAC transactions and event-driven suits in areas like cybersecurity and cryptocurrency.

Rulings in 2022 Could Bring Clarity on California and Nasdaq Board Diversity Mandates
The obligations of corporations to diversify their boards will likely be clarified by rulings soon in five pending cases challenging California’s and Nasdaq’s mandates to appoint more women and minorities.

Climate-Related Securities Suits May Increase With New SEC Standards
With new SEC climate-related disclosure requirements likely coming soon, companies may face greater litigation exposure. There are steps they can take now to minimize the new risks.

Environmental Groups Have Sued Large German Companies To Reduce Their Products’ CO2 Emissions 
Environmental activists in Germany are taking advantage of a recent constitutional ruling on climate change to sue major German companies, aiming to force them to reduce emissions far more drastically than current legislation requires.

What Is the Future for Opt-Out Class Actions in the UK After Lloyd v Google?
A recent U.K. Supreme Court decision limits the situations in which plaintiffs can bring “opt-out” class actions. However, such suits are still viable where damages are identical for all class members and for antitrust claims.

Courts Weigh ERISA Fiduciary Duty Pleading Standards and Limit Arbitration Clauses
A Supreme Court ruling in 2022 could make it harder for ERISA fiduciary duty class actions to survive motions to dismiss, and two circuit courts refused to enforce arbitration clauses in ERISA cases.

Delaware Courts Simplify Rules for Derivative Actions, Analyze SPAC Fiduciary Duty Review and Clarify Books-and-Records Obligations
The Delaware Supreme Court simplified rules for derivative actions, while the Court of Chancery wrestled with stockholders’ records demands, controlling stockholders’ conflicts and fiduciary claims against SPAC directors and sponsors.

Supreme Court Opens Door for Assignors To Challenge Patent Validity
A 2021 U.S. Supreme Court decision curtailed “assignor estoppel,” a long-standing doctrine that protected patent holders. The decision permits inventors to challenge the validity of patents they have assigned if the buyer has enlarged the scope of the patent.

The Pandemic Brought Some Welcome Innovations to the Justice Process, but Also Many New Challenges
Some of the court system’s workarounds during the pandemic, such as remote hearings and testimony, will likely be incorporated into discovery and court proceedings going forward. 

See all of Skadden’s 2022 Insights