The distinction between appellate and trial practices has been formally established in the US for over 20 years and sees firms focusing on the courts of appeals, state supreme courts and the US Supreme Court as separate practices. Appellate lawyers at the US Supreme Court place as great an emphasis on brief writing skills as they do on oral advocacy and an ability to argue a point of law. Many appellate practitioners work across a range of areas, and, like trial lawyers, often regard themselves as generalists, but individuals do often display levels of specialization in areas such as IP, product liability and employment. With only approximately 70 cases heard by the US Supreme Court per year - of which half are criminal - and with hundreds of appellate practices vying for floor time, competition in intense, and so getting a case heard at the Supreme Court is often half the battle. Only a small number of practitioners have honed the ability to get certiorari granted, and the vast majority of these are based in the home of the Supreme Court, Washington DC.
The rankings also highlight the broader appellate practices across the US involved in state and federal appeals. The number of cases heard in the federal circuits is considerably higher than at the US Supreme Court, however competition remains high. Additionally, there are firms that do not see the distinction between the trial and appellate level to be as clear cut and which instead consider subject matter expertise to be the main determinant; these firms typically handle cases from first instance through to court of appeals and even occasionally on to the Supreme Court.
Omnicare v Laborers District Council Construction Industry, which considered the scope of liability under Section 11 of the Securities Act 1993 for false statements of opinion, was a key case of 2014. Judgment was handed down in April 2015, which, on the whole, saw the court define the difference between opinion and fact, imposing a stricter standard of liability for securities fraud by making a statement of false opinion. In 2015, there was a string of landmark cases: Obergefell v Hodges, which legalized same-sex marriage in all states; King v Burwell that considered the Affordable Care Act and Obamacare; Fisher v University of Texas, which was heard in June 2015 and is awaiting judgment, and which will establish the constitutionality of race considerations in university admissions; and Equal Employment Opportunity Commission v Abercrombie & Fitch Stores, which held 8-1 that the clothing store had unfairly discriminated against Samantha Elauf, a Muslim woman, in its employment choices. The courts of appeals have been dominated by IP and patent cases and Highmark v Allcare Health Management Systems was a standout case, which narrowed plaintiffs’ ability to bring a case without any merits.
With the majority of the provisions of the Dodd-Frank Act now enacted as law, the market is seeing a significant volume and variety of litigation and enforcement actions, as the myriad regulatory agencies, emboldened by the enhanced powers bestowed upon them by the government, have placed increased scrutiny on financial services entities. Driven by public and political will, regulatory bodies have shown a heightened persistence and tenacity in their efforts to bring banks to account for their role in the financial crisis of 2007/8 through perceived excessive risk taking. There are still some residual cases flowing directly from the financial crisis and these are predominantly structured finance disputes brought across the country by institutional investors, primarily alleging that the banks, in selling or underwriting residential mortgage-backed securities (RMBS), misrepresented the quality of the underlying collateral of the securities. While some of these cases remain ongoing, many of these have now reached a conclusion, and new ones in this format are unlikely to be brought due to statute of limitations restrictions - restrictions that were recently affirmed by the New York Court of Appeals.
There are, however, interesting variations on these structured finance cases, with a series of actions being brought by investors against the trustees of these RMBS, predicated on the allegation that they did not act on evidence that the banks failed to comply with underwriting criteria. With a later limitation period falling due on these cases, it looks likely to usher in a wave of further cases being brought against these trustees. Outside of the structured finance field, the regulators continue to scrutinize trading activity, and thus market manipulation investigations and related civil litigation have also been key drivers of work for the law firms listed in the ranking. Indeed, in the wake of the high-profile LIBOR investigations, other cases have followed, with allegations being made against a vast number of banks and senior bank employees involving claims that there has been a conspiracy in the setting of various other financial benchmarks, such as those relating to, among others, foreign exchange (FX), ISDAFIX and gold.
Of the various new regulatory bodies formed as a result of Dodd-Frank, the Consumer Finance Protection Bureau (CFPB) has undoubtedly been among the most zealous in its pursuit of lenders that have fallen foul of regulations and laws aimed at protecting consumers. As a consequence, numerous firms have substantially bulked up their capabilities in this area, and have begun to place significant resources behind representing entities that are being pursued by the regulator.
Firms at the top of the ranking demonstrate a strong and overarching capability across a wide variety of disputes affecting the industry, and have the expertise to handle both the government enforcement action/investigation and the private litigation that invariably follows. Although firms are active throughout the US, New York remains the primary location for this work.
Although litigation stemming from the financial crisis continues to wind up, general commercial litigation remains steady. The main development is the increasing size and complexity of cases, with regulatory investigations frequently spinning off multiple civil lawsuits in various states. Securities and consumer class actions dominate many law firms’ caseloads, while antitrust litigation - both class actions and individual claims - continue to be filed.
Our general commercial disputes section recognizes those firms with strength across the board in commercial litigation and arbitration, with the knowledge and resources to handle complex disputes in forums across the US. The majority of claims are settled prior to a court hearing so the ability to resolve disputes quickly and efficiently is important, but strong trial capabilities are another crucial factor in the ranking.
International arbitration is a growing field, largely due to the acceleration of globalization and the rise of transnational non-state actors such as multinational corporations. Meanwhile, sovereigns continue to rely on the arbitral process in order to resolve disputes with other states and with foreign investors. In light of these trends, an increasing number of lawyers are being driven toward a specialization in international law and arbitrations.
Firms that excel in this practice area are historically internationally-focused, such as White & Case LLP, Debevoise & Plimpton LLP and international behemoths such as King & Spalding LLP, Herbert Smith Freehills and Norton Rose Fulbright US LLP. There are also up-and-coming boutiques that specialize in international law and arbitration, such as Dan Tan Law, which was founded in 2011 by Dan Tan, formerly of Latham & Watkins LLP, O’Melveny and Myers LLP and Lovells. Three Crowns LLP, another top-notch boutique, was co-founded in 2014 by a group that includes Jan Paulsson, who is widely recognized as a legend in the field of international arbitration. The growth of international law specialists, outstanding international legal boutiques and dedicated international practices at major law firms is likely to continue into the foreseeable future.
The new international litigation category seeks to highlight firms with the reach and expertise to handle multifaceted, multi-jurisdictional disputes and/or US-based litigation involving foreign parties in cases that have significant international implications. This typically requires expertise in foreign laws and extraterritoriality, knowledge of conflict of laws, experience handling sensitive political issues, the ability to enforce or block foreign judgments, driving litigation to jurisdictions where the client will be treated preferably, seeking or fending off global discovery, and, ultimately, how to go on the offensive globally and avoid global legal attacks.
There are some firms that can do all of this, such as Debevoise & Plimpton LLP, Gibson, Dunn & Crutcher LLP and Dechert LLP. Other firms provide a less comprehensive international litigation service, yet are extremely talented with respect to certain transnational subspecialties. These are often international behemoths, such as Norton Rose Fulbright US LLP and Freshfields Bruckhaus Deringer LLP, that can leverage their huge, global networks of offices. Typical work includes representing foreign individuals and companies in relation to US government investigations and US civil and criminal proceedings, including Foreign Corrupt Practice Act (FCPA) and Securities and Exchange Commission (SEC) matters, anti-money laundering, shareholder derivative actions, trade issues, asset recovery, and enforcement proceedings.
International trade is a multifaceted and diverse practice area and one which covers everything from sanctions and export control issues to trade remedies matters. Most of the firms in the ranking have a strong presence in Washington DC, which is indicative of the need - when handling work that, in many cases, involves policy as much as pure legal work - to be close to the seat of government and the key regulators. Indeed, many of the leading firms in the area are staffed with former high-ranking government lawyers, who provide critical insights to clients on the regulatory mindset, as well as potentially allowing for a more comfortable and fluid dialogue on issues that require negotiation. While not essential, having an international footprint can certainly be of benefit to clients in this area, and many of the leading firms have resources in key jurisdictions such as Brussels (of particular use in EU matters) and Geneva (the home of the WTO).
Sanctions work continues to be a booming area, and with the ever more draconian fines meted out by regulators for violations, the importance of ensuring strong compliance measures are in place cannot be overstated. US and EU led sanctions against Russia continue to account for a significant volume of work in this field, while the US’ historic deal with Cuba in 2014 to restore diplomatic ties and relax commercial and travel restrictions has seen Cuba-related work soar. Going forward, the recent relaxing of sanctions with Iran will be one to watch for 2016. The extensive reach of the UK Bribery Act and the US Foreign Corrupt Practices Act (FCPA) has led to understandable caution by companies, which are now increasingly seeking law firms with strong anti-corruption expertise to represent them in compliance audits as well as in enforcement actions should potential violations occur.
Despite increased liquidity in the market, global economic growth has been modest during 2015, and unevenly spread among the primary global economies; with the US showing relative strength, the EU a degree of resilience despite significant Eurozone issues, and China slowing down relative to its recent massive growth. Consequently, trade remedies work has diminished somewhat, however, as a caveat to that, there has been significant countervailing and anti-dumping mandates, particularly in relation to Asian companies importing into the US. The relative strength in the US economy continues to grow, which in turn has seen more deals analyzed by the Committee on Foreign Investment in the United States (CFIUS), which reviews the national security implications of foreign investments in US companies or operations. In this regard, it is often the case that firms that have strong corporate and private equity practices pick up a correspondingly large proportion of CFIUS work.
Trial lawyers often stand out for their ability to turn their hands to any case; they have excellent advocacy skills, an ability to connect with a jury, and are extremely prepared, reading and condensing vast amounts of information. Many practitioners are self-described generalists, although there is some movement towards specialization in certain key areas.
In terms of distinguishing between the tiers, there is generally a greater weight placed on adaptability and breadth practice, as well as, of course, the scope of the work; the wider the significance of the cases, the more notable it is from our perspective.
Reported litigation trends for 2015 included a continued IP focus (particularly in the field of technology patents), as well as employment disputes and environmental cases relating to oil and gas. Another key trend for trial lawyers is the step up in regulatory cases and fraud investigations, with different states and courts questioning the extent to which certain bodies can regulate the actions of companies. Related antitrust cases have also been prevalent this year. Fallout from the financial downturn remains, with investigations into high-ranking CEO’s and financial services providers plentiful. There are also ongoing residential mortgage-backed securities (RMBS) cases in many states, with those practitioners who hold expertise in financial services spending a considerable amount of time in this area.
In the US, the vast majority of M&A deals over $100m result in litigation, usually filed in Delaware. The Delaware Court of Chancery is, however, clamping down on disclosure-only settlements, which generate lawyer fees even in less meritorious cases, and this has resulted in a growing focus on more substantive cases. This move has encouraged a creative plaintiff bar to file more cases in other jurisdictions, but Delaware remains the epicenter for M&A disputes.
Large New York-based or national firms such as Simpson Thacher & Bartlett LLP and Wachtell, Lipton, Rosen & Katz are highly active, having often represented their clients in the original transaction, but they must use local counsel in the Delaware courts, so specialist Delaware firms such as Richards, Layton & Finger, P.A. and Morris, Nichols, Arsht & Tunnell LLP have a key role in this practice area. Renowned technology and life sciences firm Wilson Sonsini Goodrich & Rosati opened a new Delaware office in late 2014, with former chancellor of the Court of Chancery William Chandler joining as a partner.
A particularly hot topic in the product liability and mass tort sphere is in the aviation and aerospace arena, specifically with regard to the proliferation of drones and unmanned aerial systems (UAS). As UAS technology continues to improve, numerous companies are turning to aviation specialists for regulatory and legal advice on the burgeoning market. As ever, a large number of wrongful death and personal injury litigation and mass torts have followed on from aircraft crashes and other accidents, leading carriers and aircraft or aircraft component manufacturers to call on aviation litigation specialists for representation.
Outside of aviation, the product liability and mass tort arena has stayed fairly consistent. The major trend is that courts are becoming stricter in terms of personal jurisdiction, as plaintiffs, particularly within the pharmaceutical and medical devices arena, are increasingly attempting to file claims in plaintiff-friendly states such as California, even if neither the plaintiff nor the matter has any connection to the state.
Firms are generally seeing plaintiffs becoming more creative and aggressive in filing suits, although this may be offset by clients becoming proactive in lowering the risks of litigation; and indeed several firms have recently established advisory programs with the sole purpose of identifying and lowering any litigation risks regarding new products, particularly those involving cybersecurity and data.
On the plaintiff side, legacy firm Napoli Bern Ripka Shkolnik, which was well known for representing victims now suffering from exposure to toxic fumes in 9/11, recently split into two firms: Napoli Shkolnik PLLC and Bern Ripka LLP.
Outside of the US, product liability work has grown in significance, as an increasing number of foreign clients are beginning to seek representation in the US.
The slow but steady tailing off of cases relating to mortgage-backed securities and other remnants of the financial crisis has seen a return to more traditional types of shareholder litigation, in particular matters relating to financial misstatements. There is a rising tide of 10b-5 class actions as market volatility drives stock drop cases, but also on the radar are complex matters involving the alleged manipulation of LIBOR and other financial benchmarks. With oil prices remaining low, the energy sector is set to be fertile ground for litigation, and the high volume of merger activity within the pharmaceutical and life sciences sector is bringing that industry under the spotlight for litigators. Investigations by the SEC, which often lead to securities litigation, reached a record high in 2015, so firms are placing a greater emphasis on the synergy between litigation and regulatory enforcement capabilities.
White-collar criminal defense lawyers have reported a busy 2015. The DOJ and the SEC have continued to aggressively investigate and prosecute a broad range of companies for Foreign and Corrupt Practices Act (FCPA) violations. Firms have also reported increased cooperation between regulators, both within and across borders, with the result that clients are now often facing multiple investigations for the same activity.
September 2015 saw the delivery of the so-called ‘Yates Memo’: a statement from DOJ Deputy Attorney General Sally Yates that the most effective way to combat corporate misconduct is to go after the individuals who are alleged to have perpetrated the wrongdoing, rather than companies. The memo also sets out a strategy for success in these prosecutions. This announcement has created a stark division of opinion among white-collar criminal defense lawyers. While some dismiss it as a public relations exercise or as old wine in new bottles, others are convinced that the DOJ means business, and that the individual clients will be forced to seek representation more often in future. Some lawyers have expressed concern regarding the memo’s claim that, in order for a company to receive any consideration for cooperation under the Principles of Federal Prosecution of Business Organizations, it must disclose all relevant facts about individual misconduct. The worry is that this clause will force defense attorneys acting for companies to become an extension of the DOJ, having to inform on clients’ employees to avoid punishment. Questions have been raised about whether this development is compatible with the principle of attorney-client privilege.
False Claims Act (FCA) investigations have also kept firms busy, with the healthcare sector remaining especially fertile territory since the inception of the Affordable Care Act. Many firms have also handled benchmarking investigations, and some report that the hitherto LIBOR-focused authorities have started to broaden their gaze to include other benchmarks.
Many firms are acting for one of the individuals charged in relation to the FIFA corruption scandal.
Significant personnel moves in the white-collar space included Mark Mukasey’s move from Bracewell LLP to Greenberg Traurig, LLP, where he will chair the practice. McGuireWoods LLP took on Robert Bittman, Todd Steggerda and George Terwilliger from Morgan, Lewis & Bockius LLP.