Global Litigation 50 sample
In last year’s Global Litigation 50 report we began the financial overview feature as follows: “With much of the world apparently bracing itself for a...
Global Litigation 50 2020 Sample
Global Litigation 50 2020 sample
In last year’s Global Litigation 50 report we began the financial overview feature as follows: “With much of the world apparently bracing itself for a long-awaited economic downturn, litigation lawyers at the world’s top disputes practices have been preparing themselves for a particularly busy period over the next few years.”
Well, quite. We like to think of ourselves as forward-looking people at The Lawyer, but we’ll concede that the events of 2020 were not on our radar (even if, as some have argued, possibly with the assistance of 20:20 hindsight, a global pandemic should have been entirely predictable).
The obvious reality is that virtually no one was prepared either for the current pandemic or the global economic crash that has still to fully play out. The question of the extent to which the world’s leading disputes practices, not to mention their clients, are prepared for an apparent onslaught of litigation remains to be answered, but this year’s report aims to offer some clues.
Of all the comments in all of the submissions to this year’s report, none sum up the current situation better than this from Allen & Overy (A&O): “Covid-19 will have a huge impact on the disputes landscape, and if the global financial crisis is any indication, we may see that impact for a decade or more.”
That impact is already being felt by firms, their clients and indeed pretty much everybody worldwide in an inordinate number of ways. Credit is due to a number of firms this year for laying out in detail several of the disputes-market trends their litigators are already seeing in relation to Covid-19 and the pandemic.
According to just one, Dechert, they range from cases against universities, nursing homes, manufacturers, and transportation companies, an increase in life sciences patent litigations, parties invoking force majeure clauses in international arbitrations, plaintiffs’ firms filing securities litigation cases arising from Covid-19 and an expected rise in fraud cases related to the pandemic.
More than enough for “a particularly busy period over the next few years” indeed.
What is clear from the conversations and submissions made for this year’s report is that the world’s leading disputes practices have responded – and responded quickly – to the challenges created by this year’s unprecedented market conditions.
To take just one example from the many provided by the firms in the Top 50, Cooley reports how it rapidly deployed a multidisciplinary team of more than 75 lawyers worldwide to provide clients with real-time assessment and assistance on virus-related legal issues, while continuing to support their work across practice groups.
“The team operates the firm’s Coronavirus Resource Hub, which is regularly updated with new insight to help businesses navigate unprecedented issues, touching on a variety of related legal topics,” adds Cooley. “BTI Consulting recently named Cooley one of the law firms ‘clients say are winning in the COVID-19 world’.”
Whether the firms in the Global Litigation 50 are “winning” or not, there are numerous examples throughout this year’s report of how the lawyers in these practices are responding to their clients most pressing needs.
As of the end of June, Morrison & Foerster reports that it had opened over 240 pandemic-related billable matters across virtually all of its litigation practice areas. For example, it advised Fitbit on its emergency use ventilator, which the company designed and manufactured in response to the pandemic.
MoFo also assisted Fitbit with obtaining the necessary Emergency Use Authorisation (EUA) from the US Food and Drug Administration, and advised on the PREP Act, warnings, user manual, contractual issues, and mitigation of liability.
“We also offer clients a service that tracks coronavirus/Covid-19-related regulations at the US state, city, and county levels, as well as internationally,” adds MoFo. “As clients face new challenges as world economies struggle to reopen, we expect that the number of Covid-19-related matters our attorneys are working on will continue to grow through the end of 2020 and for the foreseeable future.”
The total value of this year’s Top 50 is $32.95bn, a rise of 3 per cent from last year’s $32.04bn. The average size of a Global Litigation Top 50 disputes practice this year is $659m.
One trend that is notable in this year’s data is the number of firms that reported a reduction in the overall proportion of firm-wide revenue that is generated by disputes.
In several cases, notably Winston & Strawn (where the proportion has shifted from 53 per cent to 49 per cent), this is part of a deliberate and strategic rebalancing of the overall practice between contentious and transactional matters but of course, with numbers this large, a dip of just one percentage point can make a big difference to a firm’s position in the ranking.
Clearly that is most obvious at Kirkland, which as highlighted above reported a reduction of two percentage points from 40 per cent to 38 per cent for 2019 as its other, non-contentious practices (notably those powered by private equity) steamed ahead and added proportionately more fee income.
Other firms that reported a reduction in the proportion of disputes fee income last year include Freshfields (from 30 per cent to 27 per cent), Gibson Dunn (55 per cent to 52 per cent) and Greenberg Traurig (34 per cent to 31 per cent).
The overall average of the proportion of litigation revenue across the top 50 firms was 43 per cent, down by one percentage point from 44 per cent last year.
Notably, Dechert was among the firms that increased its proportion of disputes-related revenue in 2019, from 36 per cent to 39 per cent.
Global Litigation 50 2020 sample
Covid-19 has jumped the legal sector forward into a primarily digital-working environment overnight. Since the lockdown started, lawyers have been flooded with requests that in previous months were only handled by a handful of experts. Litigation stemming from data and technology issues is no longer the focus of a single practice, it is the daily work of lawyers who, stuck within their homes, have found themselves dealing with new challenges and ways of working ranging from discovery platforms to virtual hearings.
This year’s submissions to The Lawyer’s Global Litigation Top 50 show firms expect a deluge of litigation stemming from disruption to client businesses, from internal mishandling of data to disputes following breaches of contracts. A seismic change. But, across the board, firms have been investing to prepare for this new world.
When the lockdown hit, the most essential element of the new remote-working experience instantly became the most vulnerable. Herbert Smith Freehills (HSF) partner Andrew Moir noticed an increase in phishing emails off the back of the pandemic. Hackers targeted client systems by leading people into clicking on malicious links. At the time, Google said it was blocking 18 million Covid-19 phishing emails every day.
Phishing emails are often the flame that sparks a fire of cyber and data security incidents, leading to attacks that ripple through IT infrastructures. Of the firms that responded to The Lawyer’s survey for this year’s report, 79 per cent said they strongly agreed that data abuse and cybersecurity litigation is expected to rise over the next three years.
With the rise in remote working, corporations are facing new risks. Their IT capabilities, ramped up as the lockdown loomed, are exposed to both external and internal threats.
“This manifests itself in a couple of ways,” says HSF’s Moir. "Either because they are hurriedly having to provide extra remote-working facilities and short-cutting the usual security assessments around that, or because increased use of existing remote-working capabilities has stressed the threat defences already in place, due to employees accessing the corporate networks in different ways."
Without physical interaction, employees create more personal data by communicating online, often using messaging and videoconferencing apps that store their information. This raises the risks of data mishandling and exposes the business to malicious intervention from external hackers.
For the lawyers involved by the client on cybersecurity issues, it is not only a matter of dealing with the immediate attack; they need to tackle the aftermath, with notifications across jurisdictions that might lead to regulatory sanctions and litigation. This heightened risk to personal data comes at a time when everyday objects threaten people’s privacy.
US lawyers at Akin Gump expect to see a rise in claims around the unlawful collection of consumer personal and biometric data by smart devices such as smartphones or wearables without user consent.
Governments have taken steps to regulate the constant flow of personal data, with legislation that will spark a new wave of disputes. Some 63 per cent of those surveyed agreed strongly that data protection and GDPR litigation are expected to increase over the next 12 months.
The US now has its regulatory counterpart to GDPR, the California Consumer Privacy Act, whose enforcement deadline came early last July. This is likely to prompt government and consumer actions “en masse”, lawyers at Cooley believe.
A similar legislation, the CLOUD Act, has also just come up. The act is a new data-sharing agreement between the US and the UK. Data is now of so high a value that lawyers are grappling with disputes around the ownership rights to information sold online, with competitors claiming the right to sell the same data.
Commercial purposes around the use of data are likely to generate disputes. But people are becoming increasingly aware of how easy it is for corporations to exploit their data. As a result, client companies are inundated with data subject access requests to explain the purpose for which personal data is used.
These requests frequently reveal information misuse or bad information governance on the part of big companies, resulting in a widespread backlash that is increasingly turning into expensive legal action.
Market Insight - California
Global Litigation 50 2020 sample
MARKET INSIGHT: CALIFORNIA
While California might be the hottest ticket in town right now, it is noticeable from The Lawyer’s data that over the past four years in particular there has been remarkably little growth in headcount terms.
The total number of lawyers in the California ranking has continued to rise over the past five years, by 15 per cent from 3,580 to 4,109, but most of that increase came in the year between 2015 and 2016, when total headcount rose by 11 per cent.
Similarly, there was a jump of 12 per cent in the same year in the total number of partners but with zero growth at best, and in fact a fall of 1 per cent in 2017/18. Over the past five years total partner numbers have grown by 11 per cent.
Over the same period, the total amount of revenue has risen by almost double that rate, by 21 per cent, from $3.69bn to $4.48bn.
But the recent moves by a number of firms to target California suggest that the West Coast is now much more firmly in the sights of the world’s leading law firms.
It is also notable that the number of litigation-related partner promotions has grown over the past five years in both Los Angeles and San Francisco, The Lawyer’s data reveals. While neither city is in the same three-figure league as New York, Washington, Chicago or London in terms of the total number of litigation partner promotions they have seen since 2015, Los Angeles has seen a 33 per cent rise in promotions over that period while both have seen double digit promotions across all of the firms in the table each year since 2015 with the exception of Los Angeles in 2016, when there were nine promotions in total.
Overall, Los Angeles has seen 77 partner promotions since 2015 while San Francisco has seen 74. The next-largest group in this ranking is 35, in Hong Kong.
The impact of Covid-19 is clear in the information contributed this year by many of the firms in the Global Litigation 50 report. In its submission, Cooley (10th in this year’s ranking with a total of 160 disputes lawyers) highlights how over the past two years it has undertaken “a concerted and strategic effort to deepen our litigation and investigations capability, with a particular focus on former government lawyers”.
In that time, Cooley reports it has brought on close to 20 litigators with a focus on white collar defence, investigations, privacy and complex business litigation.
“Many of these lateral hires were practice group leaders at their prior firms or held key government posts in the Department of Justice or other government agencies,” adds Cooley.
Third-placed Morrison & Foerster (MoFo), which now has 239 disputes lawyers in California, has been investing in litigation significantly in recent months, adding 12 lateral partners to its litigation department since the start of 2019. They include the former Securities & Exchange Commission regional head Jina Choi (securities litigation, enforcement and investigations and white-collar defence); Bonnie Lau (antitrust/investigations and white collar defence) who joined from Dentons; Eliot Adelson (antitrust/investigations and white collar defence) from Kirkland & Ellis; and Jessica Grant (class actions and mass torts) from Venable, all in San Francisco.
The firm also brought back one of its former intellectual property litigation specialists, Alex Yap, from the US Patent and Trademark Office in San Jose where he had been working as an administrative patent judge. In addition, half of MoFo’s promotions in its January 2020 partner class were in the litigation department, with four of the nine lawyers based in San Francisco.
As highlighted in the Financial Overview feature, the protracted merger talks between Allen & Overy (A&O) and O’Melveny & Myers rumbled to an unsuccessful end late last year. Had that deal gone ahead, A&O would not only have secured itself a deal with some of the US’s top disputes lawyers, but it would also have added significantly stronger links to the US market, particularly the technology-focused West Coast.
It would most likely have been a game-changer in terms of the global litigation market, a deal that would have rocketed A&O’s disputes practice into a similar bracket of the likes of Latham & Watkins or Gibson Dunn & Crutcher in terms of resources and reach. According to this year’s Global Litigation 50, O’Melveny has some 282 lawyers and 68 partners on the West Coast and has the largest litigation practice in terms of headcount in California.
Freshfields’ decision to open up shop on the US West Coast is therefore not only one of the biggest stories of the year but also a move that will have had A&O’s litigators’ teeth gnashing. The UK firm launched over the summer with a group of laterals from Davis Polk & Wardwell, Sidley Austin, Latham & Watkins, and Wilson Sonsini Goodrich & Rosati.
Similarly, Paul Weiss’ California office launch not only underlines the strategic necessity for the world’s top firms to have a presence on the West Coast, but also highlights one of the more dramatic recent developments in the US legal market: the unfolding structural change at Boies Schiller Flexner.
In April this year, the litigation boutique parted company with 13 disputes partners, who joined Atlanta-founded King & Spalding. Most of the team joined King & Spalding’s trial and investigations team in Los Angeles though one, Quyen Ta, joined the firm’s San Francisco office.
Most recently, in June New York’s Paul Weiss snapped up executive committee members Bill Isaacson and Karen Dunn from the beleaguered Boies Schiller Flexner as partners (see New York section) and followed this raid by hiring two more partners in July, Meredith Dearborn (whose clients include Uber) and Jessica Phillips to launch on the West Coast.
The move underlines the appetite for a presence in California of the world’s top litigation practices and it seems inconceivable that A&O will not respond directly to Freshfields’ gambit and launch its own West Coast office sooner rather than later, particularly as under global disputes group head Karen Seward, the firm has a champion for US litigation expansion, even while the pandemic has effectively brought about a hiring freeze in many parts of the market.
The protracted merger talks between Allen & Overy (A&O) and O’Melveny & Myers rumbled to an unsuccessful end late last year
Global Litigation 50 sample
What have been the most significant recent developments at your firm aimed at helping meet client demand in relation to cross-border litigation or disputes, including key hires, office openings, strategic shifts to or away from different types of work, etc?
In the past year, Dentons has launched offices in the British Virgin Islands and St Lucia, and launched combinations in Angola, Argentina, Australia, Honduras, Morocco, Mozambique, New Zealand, South Korea, Uganda, United States, Uruguay, Zambia and Zimbabwe, significantly expanding our global litigation reach. Dentons’ strategically located offices allow our litigation lawyers the ability to provide our international clients cross-office cooperation and a comprehensive approach to needs wherever they may arise.
Our growth and expansion has also reinforced our global capabilities in specialist areas such as patent litigation, financial services, insurance, energy and white collar crimes and investigations.
In the autumn of 2019, Dentons hosted its inaugural Global Financial Markets Regulatory and Disputes Forum held in both Singapore and Hong Kong. Lawyers from around the world led discussions on recent trends and developments in financial markets regulation, enforcement and litigation, both globally and regionally.
A trend we have seen more recently is the use specialist litigation resources by big global clients to manage their disputes. We have worked with many of them to streamline their approach to disputes by developing early case assessment procedures and ensuring the right cases are settled early and those that should be argued are treated as such.
Many jurisdictions have also seen a real increase in the use of litigation funding and insurance. So this impacts the way cases are prosecuted and defended so it is essential for all fee earners to understand the market and the impact it can have on a case.
Speaking broadly, which type of disputes or sectors are you seeing most dispute resolution activity?
Large class actions for financial institutions have continued to dominate our US litigation practice. We have seen and handled cross-border, bet-the-company securities and commodities matters, as well as proxy battles, stock-drop litigation, rate-fixing cases, alleged financial misrepresentation class actions and other major litigations. Our insurance clients have also seen a rise in bet-the-company class action litigation, regulatory actions that threaten business goals and catastrophic insurance claims, multi-state examinations, government investigations and political crisis management.
London has seen an increase in insolvency and procurement related matters which have begun to replace some of the banking litigation matters that dominated the previous five years. International arbitration continues to develop globally in all sectors but especially in the energy and construction sectors where the firm is particularly strong. Post M&A disputes and shareholder disputes are also increasing.
The increase in regulation in some regions has led to additional work, but in the London market has led to rather less litigation as solutions are imposed on the banks and others. We have throughout the globe seen an increase in investigations particularly as whistle blowing or regulators continue to initiate actions. The other area that is developing fast is cyber crime and payments. We have also seen an increase in interim injunction applications in London, Hong Kong and Singapore chasing money that has been 'stolen' from accounts. We have also acted in a number of data theft and related matters.
We are winning many new mandates from clients who need work undertaken in many jurisdictions on a single matter or have matters proceeding in many different jurisdictions.
What impact do you believe the growth of legal-specific AI and related technology will have on your firm’s contentious practice over the next three years?
We believe that there will be increased reliance on the use of advanced electronic research tools, e-discovery and forensic data extraction to increase efficiency and accuracy in data analysis and case management. Such tools will be of crucial importance for the litigators to handle large cross-border disputes involving complex legal issues and voluminous amount of documents.
In a contentious practice that tends to lend itself best to document disclosure and investigation searches, predictive coding (which is a form of AI) has now become fairly mainstream for major document review. This can only be expected to increase over the next three years. Strict predictive coding aside, a number of eDiscovery providers are developing increasingly sophisticated search and sort technologies that identify commonalities between data sets and enable more efficient and insightful fact-finding. This is particularly helpful in an investigation context, where parties are seeking to find unknown facts with a scope that is often not clearly defined. Keywords, dates and custodians may evolve in an iterative way, so technologies that identify relationships between individuals, dates and subjects can prove invaluable.
What has been the single most useful technology-related innovation your firm has used over the past year to assist with the project management of litigation matters? Please outline what made it so useful and what its impact has been. Also please state whether this was developed in-house or provided by an external third party.
Our litigation team is breaking new ground in terms of harnessing legal tech as well as process and project management techniques to improve quality and efficiency in the way it handles cases.
For example, we use our bespoke client collaboration platform, Dentons Direct, an interactive online portal that is tailored to each case and can be used to manage documents, assign and track tasks, and create process-based workflows. Dentons has also developed a Global Injunctions Toolkit, which allows clients to obtain injunctive relief and gain temporary respite and control of the situation in urgent legal emergencies.
However, the most useful tool that we use to assist with project management is a financial metrics tool called Apperio. This provides insight into all active matters, such as visibility to key financial metrics including hours recorded, fee and disbursement breakdowns and WIP, as well as transparency in real time enabling us to scale resources throughout any matter. Examples of how we utilise Apperio to deliver efficiencies with clients include:
- Scoping and budgeting: Working with clients to plan and scope all matters against their choice of alternative billing model.
- Transparency: Providing visibility and immediacy, allowing for collaboration, ensuring cost-effective and efficient work allocation.
- Trend analysis: Analysing trends of completed matters to determine efficiency on different matters, as well as helping to prepare budgets more efficiently and with great accuracy.
This level of real time detail not only enables scoping a project and provides transparency but, where appropriate, also allows an application to be made to court in good time for variation of the agreed budget.
Which areas of technology and data-related disputes (including contractual disputes, outsourcing, data abuse, cyber security, identity fraud, etc) do you anticipate seeing the most growth in your firm’s practice over the next three years and why?
The two main drivers of conflict today appear to be (1) disputes arising from breaches of obligations to protect data that frequently stem from data breaches or regulatory actions in the form of fines or additional compliance obligations imposed as part of judgments or, more frequently, consent decrees; and (2) disputes relating to unexpected delays, inability to perform, lack of demand or too much demand as a result of the global pandemic, which has quickly upended the way the world uses technology. Both drivers will continue to be major factors over the next three years.
First, the switch to work at home has increased risks associated with hackers and human error in the handling of data, which then leads to the need to provide breach notifications, which in turn frequently leads to class actions and regulatory investigations at the federal and state level. As various privacy laws are strengthened (e.g. the California Consumer Protection Act – CCPA), the chance that disputes between co-providers of services or between vendors and their customers increases, as does the prospect of civil litigation. Second, the complications associated with dramatically changed usage patterns for technology will continue to generate disputes until the entire market has had time to adjust their agreements and relationships to reflect the new reality, which has yet to become fully settled.
Morrisons won a landmark data breach case in London. In the lower courts the supermarket was held vicariously liable for the acts of a rogue employee who released the details of the Morrison's payroll list. But the Supreme Court overturned that. This is expected to slow down potential claims arising from data breaches/disclosures due to the acts of employees, which is a key threat factor in many incidents. We are also maintaining an interest in crypto and blockchain-related issues, of which we have been seeing a slow increase, and which we anticipate will see growth in the next few years.
What steps has your firm taken recently to better position its litigation and disputes practice internationally to advise clients specifically on data and technology-related matters?
Dentons Recover: A next generation recovery platform to manage portfolios of security enforcement and debt recovery matters. Developed in-house, Dentons Recover is our matter management, tracking and reporting system that supports financial institutions with the delivery of efficient and consistent recoveries services. It essentially operates as a virtual file, allowing clients to track the status of matters 24/7 via secure web access.
Examples of Dentons technology products:
Please provide one differentiator between your firm's disputes practice or approach to data and technology-related matters and that of your competitors
Nextlaw Labs, Dentons' legal technology venture, was launched in spring 2015 as an incubator to develop a number of new technology tools. Working with our sister company Nextlaw Ventures, a venture capital fund for early-stage legal technology, Dentons collaborates with developers to bring new tech to our clients in an applied way, then use their feedback to further improve the tools.
Please give examples of up to ten significant (either by free income level, profile of client or strategically) cases, domestic or international, that have either completed since the start of the last calendar year or are continuing. Please include the data of the case, the lead partner's name, the location, current status – i.e. discovery, in court, settled etc - plus a brief description of the case and the reasons for its selection:
In the past year, Dentons has launched offices in the British Virgin Islands and St Lucia