7 th Annual Litigation Trends Survey Findings Review. Reflect. Reassess. Global Web Seminar Fulbright & Jaworski L.L.P.

Transcription

1 7 th Annual Litigation Trends Survey Findings Review. Reflect. Reassess. Global Web Seminar Fulbright & Jaworski L.L.P. November 2, 2010

2 Welcoming Remarks Special Guest Panelists: Program Anthony Santoro, Senior Vice President and Chief Operating Officer, Financial Line Claims, Chartis Insurance John O Tuel, Assistant General Counsel, GlaxoSmithKline Survey History and Methodology Panel Discussion How the Practice of Law Is Changing: Highlights of the Survey Labor and Employment Class Actions Whistleblowers and the Rise of the Regulators The Emerging Challenges in E-Discovery/Data Privacy Are We in the New Normal Yet? The Corporate Counsel Perspective

3 2010 Litigation Trends Survey History Layne Kruse Head of Houston Litigation Group Fulbright & Jaworski L.L.P. 3

4 Survey History Seventh year Fulbright & Jaworski has commissioned independent research firm to survey senior corporate counsel on all aspects of key litigation trends Fulbright survey is largest survey of its kind Over 2,500 senior corporate counsel participants since 2004 Survey results accessed online in excess of 13,000 times Designed to help business community track and compare projected litigation landscape 4

5 How the Practice of Law Is Changing: Highlights of the Survey Robert Owen Partner Head of New York Litigation Group Fulbright & Jaworski L.L.P. 5

6 Downturn s Effect on Litigation Management There has been MORE Readiness/planning review (38%) Use of alternative fees (37%) Willingness to change law firms (35%) Work kept in-house (34%) Litigation caseload (32%) Litigation spend (31%) and budget (28%) Willingness to settle (27%) Alternative resolution (27%) 6

7 Downturn s Effect on Litigation Management There has been LESS Litigation spend (21%) and budget (16%) Willingness to initiate litigation (18%) Willingness to go to trial (16%) Litigation caseload (15%) Willingness to change law firms (8%) Use of alternative fees (8%) Work kept in house (7%) 7

8 The Big Question Respondents said biggest factors in the permanent change would be alternative fees (52%), tighter cost control (25%) and higher service efficiency (18%). 8

9 Areas of Most Concern Despite the economic downturn, 28% of all respondents will increase their litigation budget, and 31% will increase litigation spend 27% of respondents have also seen an increase in their willingness to settle a case; and 35% now have an increased willingness to change law firms 9

10 Move Towards Alternative Fees Reasons for using Alternative Fee Arrangements? Lower costs (78%) Predictability (18%) 76% of respondents use Alternative Fee Arrangements for less than 30% of billing 10

11 What Does Litigation Cost? Last year, 17% of U.S. respondents planned to spend $10 million or more on litigation In 2009, only 37% of U.K. respondents spent under $500,000 on litigation 11

12 2010 Litigation Trends Survey Labor and Employment Cyndi Benedict Partner San Antonio Fulbright & Jaworski L.L.P. 12

13 Labor & Employment Litigation - Top Concerns - Labor and Employment consistently ranks in the top 3 most numerous types of litigation matters pending against companies This year, 36% of respondents said labor and employment disputes most concerned their company 13

14 Wage and Hour, Discrimination, ERISA - Cases on the Rise - Corporations across the nation reported increases in class, collective action, or significant multipleplaintiff cases in the following areas: Wage and hour 18% Age discrimination 10% Sex discrimination 6% Race discrimination 7% Disability discrimination 6% ERISA cases 7% 14

15 Labor and Employment Cases - Looking to the future - Cases that respondents believe will see the greatest increase over the next 12 months: U.S. Discrimination 39% Wage/Hour 35% ERISA 5% Labor Union 17% 15

16 Arbitration of Employment Disputes - Non-Union Setting - Over a quarter of U.S. respondents required arbitration in nonunion setting Most companies requiring arbitration have done so for 3+ years Of those requiring arbitration, 79% of U.S. respondents believe the process was beneficial from an employee relations standpoint. 16

17 2010 Litigation Trends Survey Class Action Marcy Greer Partner Austin Fulbright & Jaworski L.L.P. 17

18 Class Action The class action mechanism is used most commonly in the context of labor/employment actions and consumer cases, according to 35% of respondents. 18

19 Class Action For the third year in a row, class actions have held steady, with a quarter of all respondents saying they faced at least one class action in the past 12 months.

20 2010 Litigation Trends Survey Whistleblowers and the Rise of the Regulators Antony Corsi Partner London Fulbright & Jaworski International LLP 20

21 Government / Regulatory / Investigations - The Scale of the Issue - Among all respondents, those with at least one regulatory proceeding commenced against them in the last 12 months increased this year to 37%. Regulatory proceedings are up dramatically in the U.K. A third of U.K. respondents have had one or more regulatory proceedings commenced against them; just 9% did last year. 21

22 Government / Regulatory / Investigations - Corruption, Bribery, FCPA - A quarter of manufacturers have conducted bribery/corruption investigations. This sector continues to lead other industries, as it has for the past two years. There have also been large jumps from last year among energy, financial services and health care, putting them all over the 20% level. 22

23 Government / Regulatory / Investigations - Corruption, Bribery, FCPA - 23

24 Government / Regulatory / Investigations - Whistleblower Allegations - It should be noted that the survey was conducted before passage of the Dodd-Frank Financial Reform Act with its greatly expanded whistleblower provisions. It will be interesting to see how the Act will impact the number of whistleblower allegations in the future. 24

25 Whistleblowers and the Rise of the Regulators 25

26 2010 Litigation Trends Survey The Emerging Challenges in E-Discovery/Data Privacy Bob Owen Partner Head of New York Litigation Fulbright & Jaworski L.L.P. 26

27 Emerging Challenges in Data Privacy 39% of U.S. respondents and 51% of U.K. respondents 60% of insurance companies and 64% of health care companies 27

28 What Issues Are You Facing? 27% of U.S. respondents identified identification, collection, review or transfer from EU or the other jurisdictions to the U.S. Blocking statutes identified by 13% of U.S. and 27% of U.K. respondents 28

29 U.S. Rules of Civil Procedure 29

30 Duty to Preserve ESI 69% of U.S. respondents and 67% of U.K. respondents think the scope needs clarification 30

31 Social Media in the Corporate World - Last Year -

32 Social Media in the Corporate World - This Year - 32

33 Are We in the New Normal Yet? Perspectives from Corporate Counsel Anthony Santoro Senior Vice President and Chief Operating Officer Financial Line Claims Chartis Insurance John O Tuel Assistant General Counsel GlaxoSmithKline 33

34 Next Steps Download Fulbright s 7 th Annual Litigation Trends Survey Report at Request industry-specific executive summaries Available for energy, health care, financial services, insurance, technology/communications and manufacturing industries. Jessica Schwartz to request your copy at litigationtrends@fulbright.com comments or suggestions for questions to include on next year s survey to litigationtrends@fulbright.com 2009 Fulbright & Jaworski L.L.P. 34

35 FULBRIGHT FORUM TM A Monthly Web Seminar Series Co-Hosted by Fulbright's Minneapolis and Washington, D.C., offices Visit to view and register for our upcoming web seminars. Join us on December 7, 2010: Alternative Energy Project Financing with Government Incentive Programs 2009 Fulbright & Jaworski L.L.P. 35

36 When You Think LITIGATION, Think Fulbright. TM AUSTIN BEIJING DALLAS DENVER DUBAI HONG KONG HOUSTON LONDON LOS ANGELES MINNEAPOLIS MUNICH NEW YORK RIYADH SAN ANTONIO ST. LOUIS WASHINGTON, D.C FULBRIGHT [ ]