16 November 2018

In-house counsel report less lawsuits but more regulatory proceedings

Study also finds rise in conflicts from differing discovery and data protection laws across jurisdictions.

Corporate counsel have reported a decrease in the number of lawsuits commenced against their companies over the last year, according to the Norton Rose Fulbright’s 2018 Litigation Trends Annual Survey. However, they have faced more regulatory proceedings and arbitrations in navigating increased cyber risk, data protection and tax issues.


Spike in conflicts

The survey also found that the growing international nature of many business operations has caused a spike in conflicts related to countries’ differing discovery and data protection laws and regulations. More than half of the legal departments surveyed, 11 percent more than last year, reported they are increasingly forced to balance one jurisdiction’s discovery obligations with another’s data protection regulations. Two-thirds of respondents across all industries report feeling more exposed to cybersecurity and data protection disputes in 2018. Gerry Pecht, Norton Rose Fulbright’s Global head of dispute resolution and litigation, said ‘our report examines potential pitfalls for international companies around balancing cross-border discovery requirements and privacy regulation along with sensitive issues, such as facilitating payments. We also provide tips about utilizing some of the legal technologies available and managing the field of disputes. Additionally, we build on the survey’s Litigation Minimization Framework with a special focus on cybersecurity and data protection.’

Disputes to increase

More than a quarter of businesses surveyed anticipate the volume of disputes will increase over the next year, driven mostly by expansion. The technology and life sciences/healthcare industry sectors are expected to see the biggest increase. Arbitrations are slightly up overall, and more clients say they prefer arbitration over litigation for international disputes. The use of alternative fee arrangements (AFA) rose only two percent, even though more than a third of corporate counsel in last year’s survey anticipated that they would be relying on AFA increasingly. This marks the 14th edition of Litigation Trends Annual Survey, which polled 365 corporate counsel, primarily general counsel, representing US-based organizations on disputes-related issues and concerns. The survey’s findings are available here.