Buckle up, general counsel, because your colleagues expect a bumpy litigation ride in 2013. In fact, according to the "9th Annual Litigation Trends Survey" by Fulbright & Jaworski, it's already started.
Companies in the United States and United Kingdom dealt with more litigation last year while regulatory investigations reached a five-year high, according to the survey results released Feb. 26.
"And almost everybody thinks the trend is going to stay the same or increase in 2013," global litigation chief Otway Denny Jr. tells CorpCounsel.com, a Texas Lawyer affiliate. Denny has been a partner in the firm's Houston office since 1981.
The Fulbright survey polled 392 in-house attorneys. Of the respondents, most are general counsel, and 14 percent are head of litigation. Seventy percent of respondents are based in the United States, 26 percent in the United Kingdom, and 4 percent in other countries.
The companies represented in the survey are roughly 50 percent public and 50 percent private. Their sizes varied: 49 percent were large companies, with gross revenues of $1 billion or more; 31 percent were mid-size, over $100 million; and 20 percent were small, less than $100 million.
The number of companies that retained outside counsel for assistance in regulatory investigations in 2011 jumped considerably in the United States (from 43 percent to 55 percent). In 2012, the number rose again, hitting 60 percent in the United States, the report said.
About one-third of respondents in last year's survey reported having spent more time addressing regulatory investigative requests. This year's survey found that overall rate continuing to increase to 42 percent.
And Denny says many respondents expect an increase in regulatory investigations in the coming year. "Those are here to stay," he remarks. Probes by the U.S. Department of Justice, the Securities and Exchange Commission, and attorneys general led the list. The report said nearly three-quarters of respondents from the energy, health care, and manufacturing sectors have been the target of a regulatory investigation.
Denny says the response on increased regulatory litigation "was not surprising." But on the brighter side, in-house counsel noted decreased activity in class action suits, he adds.
Among other findings from the report: