Insights

In what is being called the Fourth Industrial Revolution (4IR), the world is becoming increasingly digital, with a growing reliance on everything from electronic marketplaces and GPS guidance to emerging technologies such as artificial intelligence (AI), self-driving cars, the Internet of Things (IoT), and 3-D printing, among many others. This transformation is opening the door to new markets, innovative business models, and increased collaboration. It also raises new antitrust concerns that are likely to attract the attention of antitrust enforcers and find their way into private litigation.

The issue of emerging contaminants in the environment, particularly in drinking water, has made headlines over the past year, but there are still no binding federal regulatory standards for most of these chemicals. However, that has not deterred states and private entities from suing to stop the release of these contaminants and to seek compensation. It appears that this trend will continue—and expand—in the coming year.

Protests challenging the awarding of federal contracts have become increasingly contentious as contractors fight for a limited pool of government dollars. Two recent protest decisions of the U.S. Court of Appeals for the Federal Circuit will have a significant impact on contracts and protests—but contractors should be prepared for potential fundamental changes to the protest process itself.

In early 2018, the Department of Justice released its Brand Memo, which prohibits civil litigators from using agency guidance, instead of laws or regulations, as the basis for enforcement actions, including actions taken under the False Claims Act.

Several litigation trends set in motion by recent  events continued in 2018 and have now become the “new normal.” In 2018, D. Delaware, as predicted, overtook E.D. Texas for the largest number of patent cases filed, a trend set in motion by the May 2017 Supreme Court decision in T.C. Heartland, which made personal jurisdiction for corporations a driving force in patent litigation forum selection. Another continuing trend: trade secret litigation has skyrocketed—tripled since 2016. This is no anomaly. Macro trends like the digitization of intellectual property, surging employee mobility, and reduced patent protection for software and business methods have combined with the Defend Trade Secrets Act of 2016 to make trade secret litigation an increasingly popular and effective tool for protecting high-tech assets. D. New Jersey has the most product liability filings, in large part due to the Johnson & Johnson Talcum Powder Products Liability Litigation multidistrict litigation (MDL) filed in the last months of 2017. But D. New Jersey is also the most frequent venue for non-MDL medical device and pharmaceutical product cases, due to the large number of device and drug manufacturers headquartered in that venue, again based on T.C.Heartland.

In the product liability arena, a growing number of multi-plaintiff trials are finding their way into consolidated litigation, including multidistrict litigation (MDL). Many see this bundling of plaintiffs as confusing to juries. But a number of courts are open to the strategy—and that is creating challenges for defendants.

Historically, the Court of International Trade has focused on relatively narrow, highly technical matters relating to customs duties and trade litigation matters. But now it finds itself on the front lines of high-profile battles over the regulation of global business.