The Legal 500

The leading firms in international trade are those with a global footprint who represent the interests of a variety of clients, which include multinational corporations, institutional investors and nation states. The major issues involved include export and import controls, economic sanctions, anti-bribery rules, foreign direct investment, trade agreement negotiations, antidumping and subsidy cases. There is some crossover with the international arbitration section which focuses more directly on purely contentious work.

The leading trial lawyers ranking and editorial provides an insight into the nation’s truly outstanding litigators. For the most part, all the names gathered here are generalists, equally well-versed in representing clients in patent disputes as they are in white-collar crime cases or securities litigation (to name a few areas of dispute). Several of those in the ranking will look to climb the table in the coming years. Equally, some of the big name lawyers who are less active than they were in their illustrious pasts are starting to move off the list, even though they are still nominally partners in their respective law firms.

The mass tort and class action arena has seen some of the most headline-making legal contests of recent years, with litigation centering on certain industries before moving on elsewhere. It has also been a busy area for precedent-setting decisions. The Riegel v Medtronic Inc decision in 2008 was a case of particular significance in the medical devices industry, establishing federal preemption as a valid defense barring tort claims in state court challenging the safety or efficacy of medical devices approved by the Food & Drug Administration (FDA). The larger debate regarding the federal preemption defense remains open following the subsequent 2009 decision in Wyeth v Levine, which demonstrated that the US Supreme Court would assess each case on its merits, rather than widely apply the principle of federal preemption. In the broader landscape, the Wal-Mart employment discrimination case, Wal-Mart Stores v Dukes – the largest civil rights class action in US history and currently on appeal to the US Supreme Court – brings uncertainty as to the required standard for class certification. The case has potential repercussions affecting class action suits across a number of practice areas and industry sectors.

The mass tort and class action sections have been subdivided to cover industries or legal disciplines of particular activity. In addition to life sciences litigation, both the antitrust and labor-and-employment areas are busy, as is securities litigation arising from the sub-prime mortgage crisis and other financial fallout. It is notable that a number of recent product liability class actions and toxic torts have shifted away from the traditional focus on alleged personal injury to focus more on economic loss deriving from the allegations.

Firms recommended in the tables will have a proven track record of success in complex litigation in the practice area under discussion, but often also on other bodies of litigation. For example, several firms that made their reputations in asbestos or tobacco litigation have now branched out into pharmaceutical or securities-related actions. The greatest weight is accorded to firms that are regularly selected to take lead counsel roles in litigation, particularly when serving on plaintiffs’ steering committees or acting as liaison counsel.

The product liability and mass tort sections are divided broadly by industry coverage and assess the leading firms for the full range of litigation needs in that discipline. Firms that represent aviation clients are covered separately from the general automotive and transport section due to the highly specialized nature of this work, while tobacco-related litigation is included under the wider umbrella of consumer products. Given that the pharmaceuticals and medical devices industry has been party to many of the highest-exposure cases of recent years, it is also accorded separate coverage. A key case in point is the multi-district litigation (MDL) over Merck & Co’s Vioxx pain reliever, which although now largely resolved, has spawned secondary litigation as states attempt to recoup associated Medicare prescription costs. The toxic torts section covers matters such as chemical exposure and asbestos litigation as well as climate change litigation, a growing area owing to increasing concerns over the effects of greenhouse gas emissions.

The rankings in the product liability and mass tort sections take account of the fact that many practices have moved to encompass consumer fraud class actions relating to defective products, alleging economic loss rather than health risks or injury, which has moved practices beyond the traditional bounds of personal injury-based product liability.

The securities: shareholder litigation ranking is dominated by firms which have strong ties with major financial institutions and all those practices which appear in the top tier generate most of their work out of their New York offices. Firms handling the full array of instructions, whether it is from issuers, underwriters, directors, accountants or officers have been given careful consideration. Many of these practices ranked in this table also have significant white-collar and SEC capabilities. While we have different rankings to address competence in the area of white-collar criminal defense (as well as other related disciplines) due to the close ties between private litigation and SEC investigations, clients often instruct a firm which is able to handle all interconnected elements of a case.

The Supreme Court and appellate section is accompanied by two tables: one ranking the best firms for arguing before the US Supreme Court, and the other for the best appellate practices. Many firms are in both tables and are recommended for both types of work, although some firms with strong appellate practices are less focused on Supreme Court work, while a few are Supreme Court boutiques.

Although many lawyers are admitted to argue before the US Supreme Court, in practice relatively few do, and fewer still argue enough cases to earn familiarity with the justices and hone the skills that are peculiar to the nation’s highest court. Credit is given to practices that file and present amicus briefs or handle pro bono cases, but the greatest weight is accorded to those who argue as certiorari petitioners or respondents in cases of importance to the business community. Appellate practices are assessed on geographical scope, the caliber of cases and performance therein, primarily taking account of the federal appellate circuits and the highest of the state appellate courts. The order of the editorial is a fusion of the two separate tables, with all tier one firms discussed before all tier two firms, and so on.

Trade secrets law is becoming increasingly important for all businesses, with recent reports suggesting that up to $1 trillion is lost each year through the theft of trade secrets due to high levels of mobility in the workforce and increasingly sophisticated technology. Protection for business-critical information which is not available under other intellectual property regimes can be effected through trade secrets law, which is implemented at the State level, as opposed to the Federal level, with most States having ratified the Uniform Trade Secrets Act. Since the value of a trade secret will be lost once it reaches the public arena, lawyers can assist businesses to prevent the dissemination of their proprietary information through placing restrictions on employees relating to disclosure of this information.

However, particularly in California, where courts are reluctant to enforce restrictive covenants and non-compete clauses, lawyers also need to focus on the trial aspects of trade secrets law to prevent loss of critical data for their clients. Hence the law firms listed are evaluated on a number of bases – ability to offer preventive counseling; strength in employment law-related trade secrets matters; and ability to operate quickly and effectively in national courts in matters requiring the highest levels of technical knowledge. Some firms score highly in all areas, some show excellence in one or more features. Some firms show particular strength regionally, such as those specializing in the high-tech patent-type cases prevalent in California; and some are particularly au fait with the algorithmic-based disputes of the East Coast financial community. In the future, the challenge to law firms appears to be controlling global threats to the integrity of clients’ trade secrets; and keeping ahead of the ever-changing legal landscape, with cases such as Bilski – throwing doubt on the patentability of business methods and consequently pushing them into the trade secrets arena – providing new challenges every year.

White-collar criminal defense and SEC enforcement continues apace off the back of the economic downturn. Continued scrutiny was placed on the financial services market in particular. A raft of new legislation, most notably the Dodd-Frank Act, also provided federal law enforcement with additional tools to use in investigating cases arising within the financial services industry. Insider trading continues to be an area of focus for the regulators, as do a raft of alleged fraud offences arising out of the economic downturn, including investigations into CDOs, the credit rating agencies and bonus payments. Healthcare is another regulated industry which has had ever more scrutiny placed upon it, most notably in relation to off-label marketing.

The best white-collar practices are equipped to handle the gamut of corporate crimes including fraud, bribery and embezzlement. In addition, as a result of the increased internationalization of the white-collar arena, particularly for cartel and FCPA matters, weight is also given to a practice’s ability to resource multi-jurisdictional matters. Often matters will proceed on numerous fronts, for example, it is not at all unusual to see an SEC and DOJ investigation proceeding, as well as a congressional inquiry and a civil class action, therefore it is essential that firms are effectively able to resource such mandates. Similarly important is a group’s ability to tap into the substantive expertise of other complementary areas of law practised by the firm. This is often particularly starkly brought into focus in relation to cases involving highly complex securities fraud, where the input of a firm’s capital markets practice can prove invaluable. Some of the smaller firms in the ranking, who cannot leverage off an institutional corporate client base, have more of a focus on acting for high-ranking individuals in the defense of corporate crimes. These firms will be often be more likely to try cases, since the stakes for corporates are so high as to preclude many of these from risking losing at trial. The main hubs of activity are on the East and West Coasts, in particular California and New York. Given its closeness to the regulatory agencies, Washington DC is also of great importance, particularly for SEC enforcement.