Norton Rose Fulbright releases 17th Annual Litigation Trends Survey

Global law firm Norton Rose Fulbright today released its 17^th Annual Litigation Trends Survey. This year’s findings—derived from a poll of more than 250 general counsel and in-house litigation practitioners on disputes-related issues and concerns—highlight the challenges companies continue to face because of the COVID-19 pandemic and other evolving trends.

While most participants felt their teams had largely adjusted to changes such as remote and hybrid working, many feared that a host of evolving trends could pose financial and reputational risks to their organizations. Notably, respondents said they were facing significantly more lawsuits, with the median number of suits against them rising from four to six during the past year. This was driven by the fact that just 14% of respondents said they had no litigation pending against them compared with 26% in the previous two years.

Cybersecurity and data protection were cited as a main catalyst of emerging dispute concerns, driven by an increased remote workforce more reliant on technology and exposure to risks around phishing, ransomware and social engineering. Concern over environmental, social and governance (ESG) and diversity, equity and inclusion (DEI) issues also grew significantly, with employment and labor cases making up about half of the respondents’ highest volume matters.

Since 2020, the proportion of respondents citing class actions as among their most common dispute types has doubled. While the major driver of this appears to be cybersecurity and data protection incidents, there is also a rising concern in the market over ESG-related class actions. Legal leaders worry that these trends could also lead to more regulatory investigations in the future.

Steve Jansma, Norton Rose Fulbright’s US Head of Litigation and Disputes, said:

“Our survey results reflect the impact that important cultural and social issues are having on businesses today and the effect those issues are having on litigation activity. We are also seeing that increased lawsuits have redirected litigation spending back to outside counsel after a previous shift inward.”

A comprehensive report detailing the survey’s findings is available at litigationtrends.com. Highlights of the report include:

• Two-thirds (66%) of respondents said they felt more exposed to disputes related to cybersecurity and data privacy—an increase from 44% in the previous survey.
• While only 3% of respondents cited cybersecurity and data protection disputes as among the most common, four times that number listed them as the single most concerning dispute types.
• Respondents reported that 73% of their litigation spend was allocated to outside counsel in 2021, compared to 66% in 2020.
• Concern over ESG issues increased, with 37% of respondents saying they were more concerned compared to 21% in the last survey.
• Employment disputes were among the top concerns for 27% of respondents this year, compared to 19% in the previous survey.
• DEI and discrimination were identified as the largest non-legal factor influencing new dispute trends at 17%.
• One-third (33%) of respondents are more concerned with regulatory and investigation matters, compared to 24% in the last survey.
• Regulatory and investigations matters were reported as the single greatest concern for 19% of respondents compared to 11% in the previous survey.
• Consumer and retail respondents reported the highest volume of class actions, with 36% citing them as their most frequent dispute type.
• More than half of respondents in the consumer markets sector said class actions are a concern, but 29% said it is the greatest concern facing their department.

Introduced in 2004, Norton Rose Fulbright’s Annual Litigation Trends Survey is the longest-running survey of corporate counsel on litigation issues and trends.