Contentious work remains at the forefront of most practices in the advertising and marketing space, and 2015 saw a renewed focus on the Lanham Act and an increased number of false advertising claims being brought by clients across a wide array of sectors. Consumer class actions continued to be prominent, as did challenges before the NAD, the FTC and other regulatory bodies, which remain a key driver of work for practices across the market. Highly contentious sectors include pharmaceuticals, media, and food and beverages, with the precedent-setting POM Wonderful vs Coca-Cola Supreme Court case a particularly notable example. The 1991 Telephone Consumer Protection Act (TCPA) - which is being used in new ways to restrict the use of unsolicited advertisements via text or other direct messages to mobile devices - was another active area, as was online advertising and internet promotions, which reflects the importance of digital media and the growing influence that social media has on advertising and marketing campaigns.
An increased awareness of risk management in the cybersecurity arena has resulted in a huge surge in interest in cybersecurity insurance. HIPAA compliance continues to be a key driver of work, including in relation to digital health matters, and with the Federal Election Commission also putting an emphasis on data security and internet regulations, there is no shortage of work at present for those active in the cyber law space. The FCC has become much more active in enforcement actions beyond just telecoms companies, and the latest TCPA interpretation has resulted in a new area of litigation involving text messaging. Covington & Burling LLP, Hogan Lovells US LLP and Hunton & Williams LLP are particularly prominent in the market.
In January 2016, the European Commission announced it had come to an agreement with the US on a framework to replace Safe Harbor - the legal structure that protected over 4,000 companies with the transfer of personal data between the US and Europe. The EU-US Privacy Shield aims to eliminate previous concerns regarding mass surveillance, which prompted the invalidation of Safe Harbor in October 2015 in a ruling by the European Court of Justice. It is expected that the new guidelines will develop into a fully functional framework sometime in April 2016. The legislative changes had unprecedented implications for cross-border work, and resulted in a hive of activity for data lawyers. The breaches that dominated the headlines - such as Neiman Marcus, Home Depot, Sony and Target - serve as a stark warning to companies of the importance of incident preparedness and tabletop exercises, which again means more work for firms operating in this area. Hogan Lovells US LLP and Hunton & Williams LLP are particularly noted for their leadership in the field.
The outsourcing market remained very active, with the nature of the work evolving to include increasingly large amounts of data to take into consideration and putting processing services in a prominent position in outsourcing deals. The combination of cloud computing and more traditional outsourcings has resulted in a new, more complex hybrid, and with ever greater concerns about IT security, an increasing number of those types of services are being outsourced too. The Affordable Care Act is driving activity in the healthcare space, as healthcare payers seek to outsource certain business processes. Outsourcing work is undoubtedly modernizing, with new marketing initiatives and overall a less conventional approach to structuring deals. Gibson, Dunn & Crutcher LLP, Mayer Brown and Pillsbury Winthrop Shaw Pittman LLP are real leaders in the field. Notable changes in the law firm market included a team from K&L Gates moving to McDermott Will & Emery LLP.
The technology transactions market continued to grow, with deal volume up and an increasingly active cross-border aspect involving Asia and Europe. Given the wider market turbulence, it was, unsurprisingly, a disappointing year for IPOs, but in M&A - particularly on behalf of public companies - lawyers were extremely busy. The proliferation of technology into other industries, such as healthcare, education, finance and motoring, ensures that technology transactions specialists are increasingly relied upon for advice on novel and ever more complex deals. Cloud computing-related work was on the up, as was work relating to cybersecurity, and these are both trends that are expected to continue in 2016.
In 2015, subjects such as net neutrality and consolidation continued to dominate the legal market. Both on the transactional and the regulatory side, multibillion-dollar mergers, such as the Time Warner Cable/Comcast and AT&T/DirecTV deals, have generated the bulk of the work. Oppositions to these mergers by competitors such as Dish Network and Netflix was another key driver of work for firms in the market.
After a years of public debate, 2015 brought new developments in the issue of net neutrality. In February 2015, the FCC voted on new regulations that will determine how internet access services will operate in the future. These new changes are welcomed, especially by net neutrality advocates, as the new statutes prohibit discrimination and additional charging regarding internet services based on user, content, or mode of communication.
Another key development in 2015 was the FCC’s announced initiative to free up spectrum for wireless broadband use. The idea is to incentivize licensees to relinquish spectrum usage rights in exchange for a share of the proceeds from the auction of new licenses. This has been a boon to both transactional and regulatory groups.