In its 2017 Practice Outlook Guide, BTI Consulting Group projected that five practice areas would experience significant growth in the coming year: regulatory matters, mergers and acquisitions, cybersecurity/data privacy, bet-the-company litigation and class-action lawsuits. Here is a look at the reasons top lawyers in these practice areas are predicting steady growth.
In years past, companies often thought of regulatory compliance laws as barriers to successful business, but now the pendulum of thought has swung the other way as industry leaders begin to recognize strong compliance plans can support profitable business practices, said Tabitha Meier, co-chair of Barnes & Thornburg LLP’s compliance practice group.
That shift in mindset is buoying the growth of compliance practice as companies begin to take a proactive approach to ensuring they fall in line with the rules regulating their industries, rather than being reactive and facing consequences when a rule is broken, Meier said.
Regulatory compliance is a broad-reaching practice area, Meier said, so her work with Barnes & Thornburg’s compliance practice group has been focused on helping her clients understand the regulatory nuances that govern their industries.
The health care industry, in particular, is subject to very strict regulations, so industry leaders are beginning to take more steps to ensure that hospitals and other similar businesses fall in line with regulatory mandates, Meier said. Additionally, the United States Department of Justice’s Fraud Section has been increasing its resources to ensure that large corporations adhere to anti-corruption rules, she said.
M & A
Economic factors are the driving force behind the mergers and acquisitions market, and Bob Hicks, partner-in-charge at Taft Stettinius & Hollister LLP’s Indianapolis office, said there are two key factors in play that are contributing to the current growth of the market.
First, interest rates are historically low, which is beneficial to borrowers who leverage mergers and acquisitions with debt, Hicks said. Additionally, there is an overabundance of capital sitting on the sidelines that is available for investment, he said, which has created a seller’s market in private industries.
Further, the public M&A market has been flat for the last three years, which has driven equity and capital to the private market, he said.
But conversely, recessions begin, on average, every nine years, and the United States is approaching the nine-year anniversary of the beginning of the Great Recession. That could lead to a possible slowdown in the M&A market if the next recession begins soon, but it’s difficult to accurately predict how a recession might affect the market until it actually hits, Hicks said.
With the internet and related technologies rapidly evolving, the growth of cybersecurity/data privacy litigation is closely keeping pace.
Much of that litigation is centered on data breaches and enforcement of required cybersecurity policies and practices, said Kathleen Rice, co-lead of the data security and privacy practice group at Faegre Baker Daniels LLP.
Often, parties that have suffered at the hands of a mass data breach attempt to bring class-action suits, alleging that the compromised companies did not take the necessary steps to ensure the safety of their clients’ information. However, such lawsuits do not always succeed because it is difficult to prove actual injury, she said.
As the cybersecurity industry continues to evolve, Rice said the judicial branch is working to find ways to apply data privacy issues within the traditional concept of the law. Similarly, Rice encourages her corporate clients to develop cybersecurity plans to defend themselves against attacks and related litigation.
Bet-the-company litigation involves lawsuits that, if lost, could lead to the downfall of a company or, if survived, could constitute a significant financial loss.
Generally, such litigation is born from high-stakes transactions, such as mergers and acquisitions that involve indemnification provisions, or from lawsuits stemming from regulatory matters, said Judy Woods, partner at Benesch Friedlander Coplan & Aronoff LLP.
Regulatory bet-the-company litigation is the most common, she said, with companies in the financial, pharmaceutical and food industries facing increasing scrutiny as regulations in those industries get stricter. She pointed to the recent Wells Fargo controversy as an example of the high-stakes litigation that can ensue when companies are not in compliance with industry regulations. Often, bet-the-company cases begin with government entities seeking enforcement action, Woods said.
Although more “bet-the-company” cases are being filed, Woods said there has also been a trend of settlements before high-stakes cases get to trial. Settlements are preferable in cases where companies are facing significant losses because they bring closure and eliminate the risk of further litigation that could put financial strain on an already-threatened company, she said.
In his work as a partner at Cohen & Malad LLP, Richard Shevitz handles dozens of class-action lawsuits year after year.
Part of the reason for the popularity of a class-action complaint is the economic advantage both to the litigant and the attorney, Shevitz said. Attorneys may not be willing to take on individual cases against companies in which damages will be small, but if several members of a class are seeking action, an attorney is likelier to argue the case because it proves to be a more economically viable option for all parties involved, he said.
Class sizes can be as small as 100 people or as large as a million, Shevitz said, and can focus on local issues or take on international crime. Recently, there has been an upward trend in filing class-action suits in response to widespread data security breaches, he said, echoing Rice.
The success of a class action is not dependent on its size, but instead on its merits, Shevitz said, and the merits of a case play as significant a role in an attorney’s decision to take a case as the size of the complaint.•