LAYING DOWN THE LAW

Litigation has obviously become a major line item in manufacturing company budgets. Nearly a quarter (26 percent) of the manufacturing firms reporting in a Fulbright study said that they spent at least $5 million on litigation, excluding costs of settlements and judgments, while 51 percent reported spending over $1 million per year on business disputes.

Following reporting declines in the number of new lawsuits and regulatory proceedings – including a drop in large-dollar cases – U.S. companies could face an uptick in new actions and government probes, as well as the need to hire more in-house litigation staff to help manage the expected rise in disputes.

This was based on the 2008 Litigation Trends Survey published by international law firm Fulbright & Jaworski L.L.P..

Fulbright polled corporate law departments in the U.S. and U.K. on the state of global litigation. The survey drew input from 358 in-house counsel on both sides of the Atlantic, including 251 U.S. respondents. The survey is the largest canvas of corporate counsel on litigation issues and trends. "This year's survey appears to mark an inflection point for American business, between the end of a prolonged period of prosperity and the start of a period of economic challenge that is likely to fuel litigation over who is to blame and who should pay for the consequences," said Stephen C. Dillard, who chairs Fulbright's global litigation practice. "Given that we were polling in-house counsel on the cusp of that transition, it's no wonder that this year's findings highlight both the evident calm before the storm, as well as the sense that disputes are on the rise."

A RECENT DROP IN NEW CASE FILINGS

By several key indices, the overall pace of fresh litigation indeed trended downward in 2007-08, with 21 percent of U.S. companies reporting no new lawsuits filed against them in the past year. That's an improvement from 17 percent having stayed litigation-free in 2006-07 and nearly double the number from 2005-06, when 11 percent of companies reported enjoying a year without any new lawsuits to defend.

Even more pronounced was the drop-off in plaintiff filings: Fulbright found that 56 percent of U.S. companies brought at least one action against another party in the past year – no small portion, but still a 10 percent decline from the number of firms commencing new plaintiff filings in 2007 and a larger dip from 2004, when 88 percent of businesses said they had filed one or more lawsuits. And there was more to cheer for companies on the defensive – a noticeable drop in big-dollar filings. Only 26 percent of U.S. firms were tagged with one or more new lawsuits with claims above $20 million in the year past, a decline of 14 percent from 2007. While 37 percent of billion-dollar companies had to defend at least one new $20 million suit, that was a dramatic 25 percent drop from the number reporting a year ago.

Even government enforcers eased off a bit. 43 percent of in-house counsel said their company faced some type of regulatory proceeding the past year – a 5 percent decline from 2007 and a 10 percent drop from 2006.

CHALLENGING WEB OF LITIGATION EXPOSURES REMAINS

While overall case filings may have slowed this year, the litigation landscape is by no means shrinking. Findings show that most U.S. companies still face a challenging web of litigation exposures, with certain industries prone to particular types of actions – intellectual property/patent infringement, product liability, environmental/toxic tort – even as nearly all businesses contend with disputes involving employment, contracts and personal injury.

Companies also detect a spike in specific types of actions – nearly a third (32 percent) of Fulbright respondents reported a jump in multi-plaintiff suits stemming from wage-and-hour claims by employees in the past year, with 29 percent notching an increase in discrimination cases, including age claims. Companies also cited a noticeable rise in privacy lawsuits, whether class or collective actions. Regulatory proceedings may have ebbed in absolute terms, but American companies report having to contend with investigations by more than a dozen different agencies in 2007-08, including growing scrutiny from state Attorneys General and even the European Union.

By any measure, the sheer volume of U.S. litigation remains very large indeed, including the steady churn of new cases nationally. The survey found that 79 percent of U.S. companies still reported fielding at least one new lawsuit in the past year – with 27 percent fending off more than 20 new suits, including 18 percent coping with more than 50 new actions. The pace of new litigation is especially marked for larger companies and as Fulbright notes this year, among public companies, which were twice as likely as private firms to be on the receiving end of a new filing.

And despite the decline in the number of suits with claims in excess of $20 million, overall litigation costs have not slackened. Indeed, Fulbright found that 45 percent of U.S. companies are currently spending at least $1 million annually on litigation – a one percent uptick from a year ago. One area of litigation just beginning to show up in the crosshairs this year was cases tied to the collapse of the subprime mortgage market. Overall, 3 percent of U.S. companies surveyed were forced to engage outside counsel to assist with a subprime lawsuit or investigation this past year, although figures were sharply higher for several industries, particularly financial services companies and insurers.

A BEAR MARKET TURNS BULLISH ON LITIGATION

This survey also signals an important perceived change as to how U.S. corporate law departments view the litigation climate. In 2007, only 22 percent of in-house counsel expected to see an increase in the number of legal disputes faced by their company in the 12 months ahead – and in fact, the rate of new actions slowed in the time since.

The mood has clearly changed one year later, amidst a struggling economy, ongoing credit squeeze and banking crisis, and the effects of the subprime market all sparking a wave of corporate bankruptcies, layoffs, and government investigations: 34 percent of in-house counsel now anticipate a run-up in litigation involving their company. For some industry groups, the foreboding was 40 percent or higher. In contrast, in the U.K. – where the economy had not been under the same distress – 21 percent of in-house counsel surveyed felt they would see a rise in the number of new suits against them.

U.S. companies appear similarly concerned about a shift on the regulatory front: 25 percent of respondents expect an increase in the number of regulatory proceedings on the horizon, with 8 percent calling for a decline.  For large companies, a sober 35 percent are forecasting a bump up in government actions in the near future. As they prepare for more lawsuits, companies likewise acknowledge the need to reinforce their legal troops – in the process suspending a recent trend line to trim litigation expenses. By a five-to-one margin, respondents said they were more likely to add to their staffs of in-house litigation attorneys than cut back in the year ahead.

LITIGATION-FORCE WINDS CHANGING AGAIN

If Fulbright's survey has demonstrated anything in the past five years, it's that litigation forces are in constant motion and touching all corners of the American business map. "A look at current exposures makes clear just how broad the U.S. disputes scene is," said Dillard, pointing to 15 general areas of litigation cited among counsel's top concerns. "Litigation affects all industries and regions, and certainly all sized companies, though larger firms invariably invite more cases than small and middle-market enterprises."

With the economy having fully shifted into bear mode, Dillard observed that in-house counsel were expressing concern that all-out actions could spill onto multiple fronts – not only the perennial contract and employment matters, but also cases stemming from professional liability, real estate, insurance coverage, bankruptcy, theft of IP and trade secrets, and securities litigation. "You have numerous actions – patent, product liability or toxic tort – that tend to strike some industries more often than others, combined with widening strains of workplace suits such as wage-and-hour and privacy that are hitting everyone, added to a growing array of enforcement agencies knocking at the door," Dillard said. "It's no wonder that companies are spending as much time and resources on litigation issues as ever before."

And in the year to come, survey respondents indicate they expect to see more disputes.

"It's telling that only eight percent of U.S. participants expect to see a decrease in legal disputes involving their companies over the next year, outnumbered by more than four-to-one by those forecasting a rise in disputes," Dillard explained, noting that the level of concern was running especially high among billion dollar companies – only 3 percent of whom said they expected lawsuits to fall, compared to 43 percent predicting an increase in the coming year.

The 2008 survey asks in-house counsel to consider the types of cases they fear most, as well as their attitudes on outside counsel, litigation costs and staffing, arbitration and regulatory issues, and projections for the future. Most of the respondents identify themselves as principal general counsel and senior counsel.

Spanning ten industry groups – from financial services to energy, manufacturing, health care, retail, real estate, insurance, education, and technology and telecom – companies were spread across all regions of the country and were well represented by size: 22 percent report revenues under $100 million, while 39 percent have sales between $100 million and $999 million, and another 39 percent at $1 billion and above. Forty-four percent are publicly held (including 58 percent on the NYSE) and 57 percent maintain at least one foreign office, with 19 percent boasting locations in more than 20 countries worldwide.

Here is a bulleted summary from the 2008 Fulbright & Jaworski Litigation Trends Survey:

STATS FOR NEW SUITS

Bigger Means More Disputes – While the overall pace of new filings was down the past year, the trend definitely favored smaller companies. A fortunate 47 percent of U.S. firms with revenues under $100 million reported facing zero new lawsuits in 2007-08, compared with 27 percent for middle-market businesses ($100 million – $999 million), and 11 percent of billion-dollar companies.

The same pattern applied to volume litigation – 7 percent of smaller firms got tagged with more than 20 new suits in the past year, vs. 12 percent for mid-market businesses, but a whopping 45 percent of companies in the billion-dollar league. This included 29 percent of large companies served with more than 50 new suits in 2007-08 (vs. only 7 percent for small firms). The same trajectory applies for big-money suits: Only 8 percent of the survey's small company respondents drew a single lawsuit with more than $20 million at stake – but that figure jumped to 38 percent for billion-dollar respondents. The findings confirm a progression that has been evident for several years – a bigger business model seems to attract more litigation, as well as more high-stakes actions.

Are the Brits Less Litigious? – The contrast between new cases filed in the U.K. and the U.S. is striking. Whereas 21 percent of U.S. firms escaped the past year without a single new suit against them, that total nearly doubled to 41 percent among U.K. companies. Though only 10 percent of U.K. firms coped with 20-plus new suits, that figure jumped to 27 percent for American businesses. In the same vein, 84 percent of in-house counsel in the U.K. said their companies didn't face a single action with more than $20 million at issue in the past year vs. 74 percent in the U.S.

One Benefit of Staying Private – For the first time, Fulbright looked at litigation exposures between public and private companies. Overall, privately held companies saw fewer new suits, but were hardly immune to getting sued:  66 percent had to defend at least one new action in the past year, with 14 percent dealing with more than 20 fresh lawsuits. In comparison, 83 percent of public companies defended one or more new suits this year, with one-third of them facing 20-plus new cases. Public companies also had 16 percent more suits with $20 million-plus at issue than privately held firms.

Industries Sued Most – Insurance companies were the No. 1 target for new litigation in the past year – two-thirds of insurers faced at least six new lawsuits, including 29 percent facing more than 50 new actions.  Retailers had the next largest docket with 55 percent fending off six or more new cases, followed by manufacturers (54 percent) and health care providers (52 percent).  Although they ignited some of the highest profile class actions and government prosecutions, financial services companies were further down the list, with 37 percent being hit with six or more fresh lawsuits. Tech-communications firms reported the fewest, with 30 percent facing six or more new suits.

WHO'S SUING WHOM

Bigger Plaintiffs – It turns out that size also appears to affect the rate at which companies go after one another: One-third of firms under $100 million filed at least one new suit this past year. For middle-market businesses, the ratio increased to one-half; and for billion-dollar firms, the number of plaintiff actions was at 73 percent.

Industries Filing Most– Financial services companies were the most prolific plaintiffs, with 35 percent bringing at least six new lawsuits in the past year, including 11 percent generating more than 20 new cases.  Insurers and engineering firms were the least likely to initiate new actions, followed by manufacturers and health care firms.

WHERE THE SUITS ARE

Most Common Lawsuits – As in past surveys, the three most common lawsuits facing U.S. companies were labor/employment, contracts, and to a lesser degree, personal injury. Rounding out the top 10 in sheer case volume were product liability, intellectual property/patents, insurance, environmental-toxic tort, regulatory, class actions, and professional services. Tax disputes were the least recurring type of reported cases.

Targets – While labor, contracts and IP cases were near the top of everyone's litigation charts, many industry groups were vulnerable to their own class of litigation. Hence, technology-communications companies topped all sectors in IP disputes, which were even more numerous than personal injury cases. Financial services firms reported the highest incidence of securities actions. Energy firms drew the most environmental matters, as well as regulatory proceedings. Health care companies saw the most cases stemming from professional services. Manufacturers were tops in products liability and antitrust. And real estate firms shared the lead in bankruptcy with financial firms.

Top Concerns – Offered the chance to consider their most worrisome litigation anxieties, in-house counsel spread their concerns across 15 separate categories of disputes – all but two of them reaching double-digit percentages among reporting companies. Among the more interesting findings: Smaller companies show a greater concern over securities, insurance and real estate litigation than middle-market or billion-dollar firms; and private companies express considerably more concern than public companies in cases related to contracts, labor and personal injury. Meanwhile, companies based in the Southern U.S. worry most about class actions and products liability, while California companies are most concerned with employment actions. Companies in the Northeast face the most environmental cases.

LITIGATION AHEAD

More of the Same or Just More? – With the economy continuing to sputter, it is unlikely that the slide in new case filings reported over the past several years will continue.  More than half of in-house counsel surveyed by Fulbright felt that the pace of new lawsuits will at least remain stable, with 34 percent expecting an increase in legal disputes into 2009.  Billion-dollar firms were especially wary, with 43 percent anticipating more litigation and only 3 percent predicting a decrease.

Financial firms feel the most at risk – 50 percent expect more disputes (only 6 percent forecast a decrease), followed by health care firms (40 percent predicting more; 10 percent less) and retailers (39 percent more; 3 percent less).  Even among the most optimistic sector – technology – 24 percent of in-house counsel are anticipating more cases.

Litigation Spending Stable – American businesses continue to commit significant financial resources to disputes, with 45 percent of U.S. companies spending $1 million or more annually on litigation (excluding cost of judgments or settlements). That compares to 34 percent for British firms. Sixteen percent of U.S. firms are spending at least $5 million annually, including 9 percent reaching $10 million or more.

Litigation is a major line item for billion-dollar companies – 72 percent reported an annual budget of $1 million or more, including 21 percent spending at least $10 million, the same rate as 2007. Among public companies, 63 percent are in the $1 million-plus club, vs. only 26 percent for private firms. Insurers were the biggest spenders, with 53 percent budgeting at least $1 million to litigation, followed by energy providers (52 percent), and manufacturers and financial services firms (both at 51 percent)

No Job Loss Expected – Consistent with their expectations of gathering litigation storm clouds, companies were much more likely to predict that their in-house litigation staffs would increase in the future rather than decrease, by a margin of 19 percent to 2 percent.  The gap was sharpest among billion-dollar companies, with 23 percent saying their in-house rosters would rise vs. only 4 percent seeing a decline. Engineering and energy firms anticipated the greatest likelihood of adding more litigators.

GOVERNMENT PROCEEDINGS/INTERNAL INVESTIGATIONS

Regulatory Help – New regulatory proceedings may be down, but U.S. companies still have a number of government enforcement issues on their plates. Nearly half (49 percent) of respondents said they had retained outside counsel in the past year to assist in a government investigation – double the rate among U.K. companies.

Larger companies were three times more likely than smaller firms to call on outside counsel – 63 percent vs. 19 percent for companies under $100 million. Similarly, 54 percent of public companies required help on regulatory matters, compared to 31 percent for private firms. Insurers and manufacturers reported the most new regulatory proceedings in the past year; technology and engineering firms dealt with the fewest government investigations.

Subpoena Powers – In an even more telling sign of government action, 30 percent of U.S. companies were served with a grand jury subpoena or administrative summons this past year – including a substantial 17 percent receiving at least two government calling cards. Amid heightened regulatory scrutiny focused on Wall Street, 37 percent of financial services firms received at least one knock on the door since 2007, with 21 percent served with three or more regulatory subpoenas or summons. Even the lowest segment – technology firms – reported that 15 percent of their ranks drew one or more subpoenas. Although not every subpoena leads to prosecution or an enforcement action, the high rate of formal demands for information points to a continuing high season for government investigations.

Enforcement Calls – Companies facing regulatory/enforcement matters identified more than 15 different agencies and offices calling on them. The most frequent visitor was the Department of Justice, with 47 percent of firms needing help dealing with a regulatory matter involving the DOJ. No. 2 was the Environmental Protection Agency, followed by the Securities & Exchange Commission, State Attorneys General, Occupational Safety & Health Agency and the Federal Trade Commission.

Reaching Resolution – U.S. companies also have been busy working through their government troubles: 29 percent said they had settled a regulatory proceeding in the past year compared with 10 percent in the U.K.  The number of billion-dollar firms reaching a government settlement was at 39 percent.

Backing Off of Privilege Waiver – In 2007, Fulbright found that 17 percent of corporate counsel had chosen to waive the critical attorney-client privilege as a show of cooperation in a government investigation, a seemingly high quotient coming on the heels of several high-profile trials and investigations where the waiver of privilege played a central role. This year, in-house counsel were less willing to forego confidentiality, with 9 percent saying their companies waived privilege in hopes of avoiding a government prosecution or an enforcement action.

Billion-dollar firms especially felt the pressure easing. Only 13 percent reported they had waived privilege compared to 31 percent giving up confidentiality in 2006-07. Those percentages may drop even more in the coming year following the Justice Department's Filip memo prohibiting federal prosecutors from pressuring companies and individuals facing investigation to waive their right of privilege in exchange for the cooperation credit. However,  congressional sponsors of new legislation to curb any government attempt to induce a privilege waiver may find a 9 percent figure too much.

BRIBERY AND FOREIGN CORRUPTION

Corruption Issues – Billion-dollar companies had a higher incidence of these concerns in the past year, with 20 percent having undertaken a bribery or corruption investigation compared to 1 percent for companies under $100 million and 2 percent for mid-market firms. Manufacturers led all other industry segments in corruption probes at 14 percent, followed by energy firms at 12 percent – both industries that are more likely to have operations globally.

Overall, 7 percent of U.S. companies engaged outside counsel because of possible corruption or bribery charges, including violations of the Foreign Corrupt Practices Act. Companies with international operations were more prone to bribery problems – 11 percent of multinational respondents reported hiring outside counsel to investigate bribery claims, while 20 percent dealt with potential bribery concerns as part of due diligence in a corporate acquisition.

Facilitating Payments – A number of high-profile FCPA investigations in recent years have shed light on so-called facilitating payments to local government agencies and officials, which have long been a part of doing business in the developing world. While most U.S. companies have expressly prohibited such payments, 20 percent still allow them in some countries as a means of expediting business and government functions. This practice is even more common in the U.K., where 39 percent of companies still permit facilitating payments.

An Ounce of Prevention as Better Policy – Nearly two-thirds of U.S. respondents have policies expressly prohibiting facilitating payments in a foreign jurisdiction. When the FCPA was originally passed in 1977, many corporations feared the Act would be a disadvantage when conducting business in non-Western locales. Such outcries created carve-outs to FCPA liability for facilitating payments. It is noteworthy that the majority of U.S. respondents believe it is better to forbid all such payments than explore a gray area inviting costly and embarrassing investigations for FCPA violations.

Walking Away From Trouble – Despite the severe penalties and reputational risks associated with an FCPA prosecution, 13 percent of companies admit they still allow small direct payments to foreign governments in certain specific situations. One-quarter of energy companies and one-fifth of financial services firms – both sectors with substantial business interests in emerging economies – confirm making direct payments to foreign hosts in some cases.

At the same time, 23 percent of all U.S. companies said they have made the decision to walk away from doing business in a country based on the perceived degree of local corruption. For smaller companies with a lot to lose, the walk-away rate was 39 percent whereas for billion-dollar companies, it was 31 percent.

WORKPLACE CASES ON THE RISE

Wage-and-Hour Pressures – With employment cases perennially taking up the largest portion of corporate dockets, Fulbright sought to learn which types of employment disputes are the most nettlesome, particularly in multi-plaintiff cases and class actions. Respondents report the greatest spike in wage-and-hour suits – in which employees allege underpayment for overtime, meal and rest times.

Nineteen percent of U.S. companies cited an increase in wage-and-hour cases in the past year vs. only 1 percent noting a decrease.  Retailers, which frequently call on part-time or seasonal workers, appear to have the most exposure: One-third of retail firms saw an increase in wage-and-hour litigation, with none reporting a drop. In contrast, 6 percent of U.K. companies saw any upward movement in wage-and-hour disputes.

Other Employment Cases – After wage-and-hour, companies saw pronounced increases in five other areas of workplace litigation: General discrimination suits, followed by privacy, ERISA, disability claims, and age discrimination. Retailers and financial services firms saw the sharpest rise in discrimination claims; retailers shared the lead with energy firms in ERISA cases; and retailers led again in cases tied to ADA claims.

Money Cases – Of 10 major types of employment litigation, U.S. companies pointed to race discrimination cases as creating the highest financial exposure, followed by claims stemming from sexual discrimination; wage-and-hour violations; ageism; harassment; retaliation; disability; non-compete disputes; and violations of the Family Medical Leave Act.

IP MATTERS

Patent Defense – One-third of U.S. companies, regardless of industry type, had at least one patent infringement claim filed against them in the past three years. For billion-dollar respondents, the level rose to just under one-half, and for invention-rich tech firms, the ratio was higher still at 52 percent. Manufacturers also saw a high rate of patent claims at 52 percent, including 2 percent reporting more than 50 cases since 2005. A notable 12 percent of below-$100 million companies have been hit with at least one patent infringement claim during that period.

Patent Offense – Equally worth noting, 21 percent of U.S. companies initiated at least one patent action in the last three years, including 39 percent for billion-dollar firms.

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Patent Volume – The great majority of companies (83 percent) expect no near-term change in the volume of patent suits. That leaves 12 percent of respondents expecting an increase of patent cases and 5 percent of participants expecting a decline.

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Fulbright & Jaworski L.L.P., Fulbright Tower, 1301 McKinney, Suite 5100, Houston, TX 77010-3095, 713-651-5151, Fax: 713-651-5246, www.fulbright.com.