Global Litigation Trends for Corporates - Allen & Overy litigation trends... · 4 Global Litigation...

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Global Litigation Trends for Corporates

© Allen & Overy LLP 2011

Global Litigation Trends for Corporates2 3

Intellectual property

What are the trends? – Companies increasingly turning to IP litigation to curb competition: cases often “bet the company” and global

– Patent infringement claims likely to be intertwined with antitrust claims

– Increase in breach of confidence claims

– IP for clean-tech: licensing and disputes

– The future:

– Global patent war in the smartphone space

– China may replace U.S. in driving global IP litigation strategies

– Potential unified European patent system

– Social media – disclosure orders against internet businesses

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Illustrative examples – Research In Motion (RIM), the manufacturers of the BlackBerry – Engineering a worldwide settlement of litigation with Motorola relating to wireless email, GPRS and mobile handset technology

– Sony – Enforcement of its trade mark rights against parallel imports of its professional video cameras

– Novartis – Major cross-border patent dispute with MedImmune Limited in relation to Novartis’s drug Lucentis

– eBay – Acting before European Court of Justice (ECJ) and English Court of Appeal in relation to liability for trade mark infringement by users

– Amazon – Advising on strategic copyright issues across the EU in relation to its recently launched Cloud Drive service

– Nortel – significant litigation against one of Nortel’s major repair service providers for trade mark infringement and counterfeiting

Nicola DaggPartner – LondonTel +44 (0)20 3088 3871 [email protected]

Paul KellerPartner – New YorkTel +1 212 610 6414 [email protected]

Filip Van ElsenPartner – AntwerpTel +32 3 287 73 27 [email protected]

Benjamin BaiPartner – ShanghaiTel +86 21 3896 5078 [email protected]

KEY CONTACTS



Antitrust

What are the trends? – Continued steady rise in private damages actions

– Follow on actions more common than stand alone

– Private damages actions tending to arise in class action friendly jurisdictions

– Actions decreasing in U.S. due to reduced activity by the Department of Justice (DoJ) and procedural issues (eg heightened pleading standards)

– Exponential growth of actions in UK but most ongoing or stayed – CAT jurisdiction arguably narrowed so potentially more claims before courts

– Binding settlement in Netherlands F-cubed case despite no defendants and few claimants being domiciled there

– First successful follow on damages claim in Spain 2009-10

– Few cases in France, none in Italy

– Personal liability of executives?

– Pfleiderer – disclosure of information communicated under a leniency programme

– Akzo – no privilege for in-house counsel in competition matters – ECJ decision 2010

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Illustrative examples – Representing three major Japanese manufacturers as defendants to English follow on actions alleging breach of statutory duty arising from alleged cartel activity and for a claimant in a further action

– Acting for a major European manufacturer in OFT (civil and criminal) and European Commission cartel investigations

– Representing a global bank in the defence of an antitrust investigation by the U.S. DoJ into the credit derivatives market

Todd FishmanPartner – New York Tel +1 212 756 1130 [email protected]

Tom Schoors Partner – AntwerpTel +32 3 287 73 30 [email protected]

Jonathan HitchinPartner – LondonTel +44 (0)20 3088 4818 [email protected]

KEY CONTACTS



Arbitration

What are the trends? – Globalisation – dynamic growth in emerging markets driving growth ofinternational arbitration

– Increased use of arbitration particularly marked in finance sector and in Asia

– Growth in commercial activities of states/state entities/international organisations – arbitration an attractive option

– Increasing number of Investment Treaty arbitrations

– Growth in LNG pricing arbitrations due to volatility in commodity pricing

– Increasing use of arbitration in clearing systems

– Growing popularity of optional dispute resolution clauses – but risks must be recognised

– New laws (eg France, HK, Australia), new institutions (eg Scotland, Cyprus) and revised Rules (eg SIAC, SCC, UNCITRAL and soon ICC and LCIA)

– National inconsistencies and tripping points remain: eg Dallah, Jivraj, India

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Illustrative examples – Acting for AES against Kazakhstan in an arbitration involving Energy Charter Treaty (ECT), Bilateral Investment Treaty (BIT) and contractual claims

– Acting in an LCIA arbitration for a distributor of leisure goods in a dispute concerning their trade mark licence and involving complex EU competition law

– Acting in three LNG price review arbitrations

– Acting for banks on claims arising under ISDA Master Agreements referred to LCIA arbitration seated in London

– Acting for a group of investors seeking reparation against Spain for Spain’s retroactive changes to solar photovoltaic tariffs

– Defending the Republic of Peru in the first ICSID arbitration brought by a Chinese investor

– Acting for a mobile phone operator in a major arbitration arising in Asia

Jeff SullivanCounsel – London Tel +44 (0)20 3088 2919 [email protected]

Benno KimmelmanPartner – New YorkTel +1 212 610 6322 [email protected]

Antonio Vazquez-GuillenPartner – MadridTel +34 91 782 99 53 [email protected]

KEY CONTACTS



Jurisdiction, governing law and sovereign

immunity

What are the trends? – Increase in jurisdictional challenges

– Enforceability of jurisdiction agreements

– Competing jurisdiction clauses

– Meaning of ‘non-exclusive’ jurisdiction

– Can a jurisdiction agreement be “trumped” if questions of capacity raised? Recent ECJ decision in BVG v JPMorgan Chase

– Affiliates

– Torpedoes

– Rome I and Rome II came into force throughout EU in 2009

– Increased focus on clauses waiving sovereign and other immunity

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James Partridge Partner – London Tel +44 (0)20 3088 3726 [email protected]

Werner EyskensPartner – Brussels Tel +32 2 780 26 02 [email protected]

Michael FeldbergPartner – New YorkTel +1 212 610 6360 [email protected]

Angus RossPartner – Hong Kong Tel +852 2974 7299 [email protected]

KEY CONTACTS

Illustrative examples – A leading investment bank – Dispute relating to foreign exchange derivatives transactions under the 1992 ISDA Master, involving complex questions of jurisdiction under competing agreements, with some issues not previously decided upon by the court.

– Reported dispute with China Haisheng Juice company concerning currency swaps between the parties. Proceedings took place in the English Commercial and the Chinese courts.

– Two European banks in proceedings brought in the English Courts to recover sums owing from an Italian public authority under interest rate swaps which involved successfully opposing a jurisdiction challenge.



Regulatory investigations – bribery and

corruption

What are the trends? – Increasing political desire to tackle corruption: U.S. leading the trend, growing focus in some emerging markets

– Increasing international cooperation among regulators and law enforcement

– Size of penalties increasing in UK and Europe and remains high in U.S.

– Increasing extra-territorial application of the law

– Increasing pressure to self-report violations

– Increasing prosecution of individuals in U.S. including those with minimal contact with U.S.

– More focus by clients on corruption compliance policies

– More acquisitions in high risk jurisdictions – focus on corruption

– Cuts in budgets

– UK Bribery Act 2010 – came into force on 1 July 2011

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Arnondo Chakrabarti Partner – London Tel +44 (0)20 3088 4424 [email protected]

Fai Hung CheungPartner – Hong Kong Tel +852 2974 7207 [email protected]

David EsseksPartner – New YorkTel +1 212 610 6326 [email protected]

KEY CONTACTS

Illustrative examples – BAE Systems – Defence of the well-publicised and wide-ranging multi-jurisdictional corruption inquiry

– Representation of an international businessman defending investigations by the U.S. DoJ, the UK SFO and authorities in Switzerland and Guernsey regarding potential improper payments to government officials in the Middle East in connection with the sale of an essential commodity manufactured by a large U.S.-based public company

– Assisting a number of banks in respect of regulatory investigations in Hong Kong involving bribery allegations against employees

– Representing a global pharmaceutical company in analysing and mitigating FCPA enforcement risks and implementing a compliance programme in connection with the purchase of a drug company in China

– Acting for a UK FTSE100 with global operations on a U.S. DoJ corruption investigation of its worldwide sales operations, including a settlement with the DoJ and UK authorities and advising on corruption issues arising in the Middle East, Asia and Europe (over 40 jurisdictions).



Banking, finance and regulatory litigation

What are the trends? – Lots of disputes emanating from financial crisis (eg Lehmans litigation, misselling)

– Growth in insolvency litigation

– Ongoing claims arising out of large scale frauds (eg Madoff)

– Regulatory reforms – potential for litigation as parties seek to understand rights and obligations

– Increase in claims by public authorities alleging lack of capacity to enter into derivatives contracts

– More sophisticated approach to dispute resolution clauses among bank clients

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Tim House Partner – London Tel +44 (0)20 3088 3775 [email protected]

Joost EveraertPartner – Brussels Tel +32 2 780 26 06 [email protected]

Pamela ChepigaPartner – New York Tel +1 212 756 1125 [email protected]

KEY CONTACTS

Illustrative examples – Fabrice Tourre – Acting for Mr Tourre in a lawsuit filed by the U.S. SEC alleging fraud in connection with the marketing of a CDO tied to subprime mortgages. We have also represented Mr Tourre in connection with testimony before a committee of the U.S. Senate

– Richard S. Fuld, Jr. – Acting for the former chairman and CEO of Lehman Brothers Holding, Inc. on intersecting proceedings arising out of Lehman’s bankruptcy, including representing him in connection with his Congressional testimony, governmental and regulatory inquiries, and multiple class actions

– Madoff related litigation – Acting for major banks in defending claims brought by the trustee in the bankruptcy of Bernard L. Madoff Investment Securities LLC and the liquidators of some of the feeder funds. Some matters are the subject of actions in more than ten jurisdictions

– ISDA – Acting in an application seeking directions as to the meaning of s2(a)(iii) of the ISDA Master Agreement, and its compatibility with the anti-deprivation principle of English insolvency law

– Acting for banks in claims involving jurisdiction battles with public authorities relating to lack of capacity to enter into derivatives contracts

– Regulatory compliance – Advising on compliance with new financial regulations in the UK, Hong Kong and the U.S.

– LIBOR – Acting for an investment bank on an investigation by multiple U.S. and UK regulators into the setting of market wide inter-bank interest rates during the credit crisis

Angus RossPartner – Hong Kong Tel +852 2974 7299 [email protected]



Class actions

What are the trends? – EU – Commission consultation on common legal principles that should apply in a collective redress mechanism

– U.S. – case law that narrows extra-territorial scope of F-cubed class actions

– Supervisory bodies encouraging class actions (eg European Commission inciting consumers to initiate legal action on the basis of antitrust penalties)

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Brechje van der VeldenPartner – Amsterdam Tel +31 20 674 1580 [email protected]

KEY CONTACTS

Illustrative examples – BAT – Representation in a class action brought by the main Italian consumer association and three smokers

– Representation in various proceedings in continental Europe in relation to claims from consumers regarding sale of Lehman notes

– AEGON – Representation on a pending class action on life investment product Koers Plan

– The State of Netherlands – Mass tort litigation in relation to the rescue takeover by the Dutch State of the entire Dutch banking and insurance business of Fortis

– Delta Lloyd– Representation in negotiations with consumer groups to settle collective claims regarding investment insurances

Pamela ChepigaPartner – New York Tel +1 212 756 1125 [email protected]

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Global Litigation Trends for Corporates - Allen & Overy litigation trends... · 4 Global Litigation...

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