Litigators Facing Rough Seas Ahead

While my crystal ball is no longer working (the product of my seven and ten year old using it for batting practice) 2014 promises to be a potentially difficult year for big-case litigators.

Yes, firms are accustomed to the ebbs and flows of practice area priorities, and while the heady heydays of smart device patent cases and mortgage-backed securities litigation are becoming visible in the rear-view mirror, one could argue that this is just another ordinary cyclical challenge, but I think they may be missing some critical factors.

No this is not yet another tort reform is coming article, but significant changes to entire litigation categories may be afoot.

One group that may take a hit are patent litigators. The anti-troll movement is gaining momentum, and while it is premature to say whether or how our friends in Washington can limit certain entities from bringing patent suits, if they do, there could be much less patent work on the horizon. Also, the Supreme Court will be facing the issue of patent eligibility for computer-implemented business methods…if it holds the way the software industry hopes, that they are not eligible for patents, that would also adversely affect this practice area for years to come.

As a formerly practicing Delaware attorney, the threat to securities class action suits are also of mounting concern. While it is not a slam-dunk that the Supreme Court will undo the presumption in Basic v. Levinson, and even if it does it will not mean the end of securities fraud class action suits, if these suits are limited, so too must be the numbers of attorneys to defend them. However, on a positive note for my Delaware friends at the Bar, but a negative note for everyone else, the Chancery Court’s endorsement last year of forum selection clauses may mean less shareholder and derivative litigation outside of Delaware thereby meaning less revenue for out-of-state defense firms.

The Supreme Court has not taken kindly to class actions (remember American Express v. Italian Colors where it reiterated it’s previous holding in AT& T Mobility v. Concepcion, where it held even if a signed arbitration agreement bars classwide claims, those who signed it are stuck with it?) and while it made obtaining class certification more difficult in Comcast v. Behrend, if it grants cert to Sears v. Butler and Glaxer v. Whirlpool, the benefit of the bargain theories may go the way of, well, the way Sears seems to be heading…

There will always be need for litigation. Now we just have to find some other areas which need our focus.

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