LITIGATION TRENDS 2024 We are pleased to introduce the 2024 edition of Weil’s Litigation Trends Report, featuring insights and guidance from our partners, counsel, and associates about business and legal risks we believe are worth closely monitoring in the near- and long-term. Government agency priorities are a continuous area of focus in this year’s Report, underscoring the need for companies to maintain undivided attention on regulatory risks, and to plan for them as part of overall business and corporate strategy, especially as we approach the next presidential election season. Nowhere is such focus more important than in the transactional context, where numerous agencies, especially but not limited to the FTC, have become more aggressive. Our antitrust team, battleproven against these government enforcers, is the tip of the spear, kicking off our Report as they usually do. They help cut through the FTC’s recent mixed federal court merger enforcement record – with notable losses in challenges to Meta’s acquisition of Within and Microsoft’s acquisition of Activision followed by a later win in a challenge to Illumina’s acquisition of Grail – and foresee a similar approach in 2024, marked by a willingness to block transactions outright in lieu of negotiating remedies. Bookending the Report, our White Collar team explores several new DOJ programs, including its Mergers & Acquisition Safe Harbor Policy, which aims to incentivize timely pre- and postacquisition due diligence and voluntary self-disclosure of criminal conduct, by offering the presumption of declination of prosecution to acquirers in return for early cooperation, investigation, and remediation. Of course, regulatory enforcement and guidance remains active outside of the corporate transactional space, including on issues drawing attention from multiple agencies simultaneously. For example, our Antitrust and Employment groups each Dear Colleagues and Friends address agency priorities in the labor markets, including the DOJ’s unsuccessful attempts to criminally challenge no-poach agreements, the FTC’s coming final vote on its proposed rule that would outlaw most non-compete agreements between employers and employees, and the NLRB General Counsel’s recent (non-binding) memorandum holding that non-compete clauses for non-supervisory employees violate the NLRA. Together with a sustained uptick in private antitrust laborrelated suits targeting no-poach and similar clauses, a bevy of state antitrust civil enforcement actions, and a growing list of state laws that ban or severely limit restrictive covenants, these agency efforts present a stark reminder that companies of all stripes need to closely monitor their workforce rules, policies, and contracts. Elsewhere, our Securities Litigation & Enforcement team previews the likely sustained impact of the SEC’s newly adopted rules mandating disclosure, within four days, of a cyberattack, while our White Collar group examines how the newly enacted Foreign Extortion Prevention Act is a watershed moment in U.S. anti-bribery enforcement, empowering the DOJ for the first time to prosecute foreign recipients of gifts, not just the payor of those gifts, as had been the case for 50 years under the FCPA. Complicating the corporate regulatory risk calculus, albeit beneficially, are judicial restraints on government agency action and authority, which we anticipate will continue to evolve this year. First and foremost, as discussed by our Appeals & Strategic Counseling and Patent litigators, is the Supreme Court’s coming decision in two cases that could spell the end of 40 years of the so-called “Chevron doctrine,” David Lender Jonathan Polkes Elizabeth Stotland Weiswasser
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