2025 LITIGATION TRENDS Weil, Gotshal & Manges LLP
We are pleased to introduce the 2025 edition of Weil’s Litigation Trends Report. We often remark during production of the Report about the staggering pace of the changes impacting business, government, and the entire legal industry. This past year was no exception. Our litigators remain as committed as ever to providing clients with advice about evolving business risks and opportunities. Weil’s global Litigation Department, as well as the Firm as a whole, has undergone tremendous positive change over the past year. We have welcomed new litigation leaders with fresh perspectives across the Firm, promoted outstanding new homegrown partners and counsel, and continued to enhance our platform through strategic lateral acquisitions. These are fitting developments, with the Firm fast approaching the 100th anniversary of its founding, as well as important milestones in our Washington, D.C. and Silicon Valley offices, which will soon celebrate 50th and 35th anniversaries, respectively. These practitioners and offices have played a large role in preparing this year’s Report, particularly our new features on the Sports industry and the fast evolving topic of ESG – both topics of intense focus and specialization across the Firm. For example, our Sports experts examine how all key stakeholders in the sports ecosystem, including teams, leagues, unions, and players, are increasingly using litigation to challenge and disrupt established norms of league governance, compensation, and player wellbeing. They also assess, among other issues, the business risks facing regional sports networks and their implications for teams and leagues that have stood to benefit from their revenue streams. In the ESG space, a global team of litigators, regulatory experts, and corporate counselors explores the rise of regulatory “greenwashing” enforcement actions and a possible shift of these cases from U.S. federal to state courts. They also examine global ESG litigation risks and liabilities, particularly potential exposure caused by forward-looking or aspirational corporate statements regarding sustainability, and multi-faceted disputes playing out in English, Dutch, and U.S. courts focusing on responsibility for carbon emissions and labor conditions in companies’ global supply chains. Reading on, you will find the practical analysis you have come to expect from across Weil’s Dear Colleagues and Friends practice groups, much of it focused on our predictions about federal regulatory enforcement, as well as related carry-over effects at the state enforcement level and in private litigation. We hope you and your inhouse teams will review the entire Report, but we have excerpted some highlights below: ▪ Antitrust: We foresee consistent, if not heightened, enforcement at the U.S. federal level, including in merger enforcement and monopolization cases. But don’t overlook the potential for state AG enforcement activity to increase as well, either independently or as a result of shifting federal priorities; and be mindful of a growing surge of opt-out collective actions in the UK, underscored by the first trial of such a case since the passage of the Consumer Rights Act 2015. ▪ A ppeals and Strategic Counseling: Though the U.S. Supreme Court issued several seminal decisions in what our appellate lawyers term a “banner” year for administrative law, and a “generationally significant” bankruptcy decision, we analyze the High Court’s otherwise shrinking commercial docket and reluctance to rule in potentially broad-impact cases, epitomized by its dismissal of two important securities law matters. ▪ Class Actions: We canvass some of the most important multi-plaintiff risk centers today, including those arising from so-called “hidden fees,” the use of advertising technology, and allegedly toxic ingredients, which can ensnare a broad range of companies and, coupled with related and uncertain regulatory risks, present potentially staggering litigation costs and liabilities. ▪ C omplex Commercial Litigation: Our commercial litigators assess how companies have adjusted to the plaintiff bar’s innovative use of mass arbitrations to circumvent the U.S. Supreme Court’s David Lender Drew Tulumello John Neuwirth LITIGATION TRENDS 2025
endorsement of class action-banning arbitration clauses, enshrined in its seminal Concepcion decision in 2011. We also look at the plaintiff bar’s continuing efforts to develop the next generation of mass torts, with ultra-processed foods and medication likely to sustain the growth of the federal court MDL docket driven by cases involving allegedly defective earplugs and social media additions. ▪ Employment: Our labor and employment law experts tackle a number of subjects of broad relevance to our management-side clients. Chief among these are significant changes to workplace protection laws, including groundbreaking judicial decisions and federal and state executive branch orders and agency rules that will reshape the Title VII standard, impact certain corporate workforce initiatives, and further protect employee pay transparency and paid parental leave. ▪ International Arbitration: The rise of artificial intelligence is having a profound impact on the practice of international arbitration. We examine not only the impact of AI in cross-border disputes, but also the effect of economic sanctions on traditional arbitral neutrality, and the possibilities open to a party that wishes to challenge an arbitrator’s appointment. ▪ IP/Media: The Supreme Court’s most recent Term featured several opportunities to clarify damages under the Copyright Act and remedies under the Lanham Act, as well as address First Amendment issues regarding social media content moderation. Our IP/ Media litigators weigh in on what the High Court did – and did not – adjudicate. ▪ Patent Litigation: Likewise, SCOTUS decided several important cases in the patent space. Our patent litigators take a close look at the Loper Bright ruling limiting judicial deference to administrative agency interpretations of the law, and its effect on proceedings at the U.S. Patent Office. Other developments impacting the patent sphere, including a new obviousness test for design patents and the rise of third-party litigation funders, receive in-depth analysis, as well. ▪ Product Liability: The heightened use of artificial intelligence technology presents another interesting issue for consumer products companies: what happens when AI malfunctions? If AI-enabled products become subjected to product liability laws, then companies may be exposed to additional liability, including threatened “nuclear verdicts” similar to what we have seen in cases involving more conventional consumer products. We look at both of these dynamics, as well as the new threat of David Lender Co-Chair of Weil’s Litigation Department John Neuwirth Co-Chair of Weil’s Litigation Department Drew Tulumello Co-Chair of Weil’s Litigation Department LITIGATION TRENDS 2025 public nuisance claims appearing in lawsuits alongside of traditional product liability claims, and an increase in false advertising claims tied to environmental issues. ▪ Securities Litigation: Our securities team, with its wealth of expertise in Delaware corporate law, has been closely tracking efforts by public companies to re-domicile from Delaware to other states, and the response of the Delaware legislature to the so-called “DExit” movement. We also take note of other developments impacting shareholder jurisprudence, particularly involving claims brought against third-party acquirers, and the continued powerful impact of the Goldman argument in challenging class certification in securities class actions. ▪ White Collar: The new administration has enacted sweeping changes regarding the focus and direction of federal criminal enforcement, shifting focus away from corporate fraud and anti-corruption measures and more towards issues such as illegal immigration and international cartels. Cryptocurrency enforcement appears to have softened as well. However, the DOJ will likely continue to prosecute False Claims Act cases, and has also implemented a new corporate whistleblower program, signaling that the regulatory agencies will remain closely engaged. We hope Litigation Trends 2025 will help you navigate a dynamic and rapidly changing litigation landscape, and we’re excited to share our insights with you as we look forward to the year ahead.
LITIGATION DEPARTMENT AND PRACTICE GROUP LEADERS Department Co-Chairs David Lender New York View Bio david.lender@weil.com +1 212 310 8153 John Neuwirth New York View Bio john.neuwirth@weil.com +1 212 310 8297 Drew Tulumello Washington, D.C. View Bio drew.tulumello@weil.com +1 202 682 7100 Antitrust Jenine Hulsmann London, Brussels View Bio jenine.hulsmann@weil.com +44 20 7903 1767 Brianne Kucerik Washington, D.C. View Bio brianne.kucerik@weil.com +1 202 682 7034 Michael Moiseyev Washington, D.C. View Bio michael.moiseyev@weil.com +1 202 682 7235 Jeffrey Perry Washington, D.C. View Bio jeffrey.perry@weil.com +1 202 682 7105 Appeals and Strategic Counseling Robert B. Niles-Weed New York View Bio robert.niles-weed@weil.com +1 212 310 8651 Mark A. Perry Washington, D.C. View Bio mark.perry@weil.com +1 202 682 7511 Greg Silbert New York View Bio gregory.silbert@weil.com +1 212 310 8846 Zack Tripp Washington, D.C. View Bio zack.tripp@weil.com +1 202 682 7220 Class Actions David Singh Silicon Valley View Bio david.singh@weil.com +1 650 802 3010 Complex Commercial Litigation Greg Silbert New York View Bio gregory.silbert@weil.com +1 212 310 8846 David Singh Silicon Valley View Bio david.singh@weil.com +1 650 802 3010 Employment John Barry New York View Bio john.barry@weil.com +1 212 310 8150 Environmental, Social & Governance Hayley Lund London View Bio hayley.lund@weil.com +44 20 7903 1361 Arianna Scavetti Washington, D.C. View Bio arianna.scavetti@weil.com +1 202 682 7291 International Arbitration Jamie Maples London View Bio jamie.maples@weil.com +44 20 7903 1179 IP/Media Benjamin Marks New York View Bio benjamin.marks@weil.com +1 212 310 8029 Patent Litigation David Lender New York View Bio david.lender@weil.com +1 212 310 8153 Product Liability David Singh Silicon Valley View Bio david.singh@weil.com +1 650 802 3010 Diane Sullivan New York View Bio diane.sullivan@weil.com +1 609 986 1120 Securities Litigation Caroline Zalka New York View Bio caroline.zalka@weil.com +1 212 310 8527 Sports Yehudah Buchweitz New York View Bio yehudah.buchweitz@weil.com +1 212 310 8256 Hayley Lund London View Bio hayley.lund@weil.com +44 20 7903 1361 Arianna Scavetti Washington, D.C. View Bio arianna.scavetti@weil.com +1 202 682 7291 White Collar Defense Daniel Stein New York View Bio daniel.stein@weil.com +1 212 310 8140 LITIGATION TRENDS 2025 | 7
CONTRIBUTORS Elaina Aquila New York View Bio elaina.aquila@weil.com +1 212 310 8814 Meagan Bellshaw Washington, D.C. View Bio meagan.bellshaw@weil.com +1 202 682 7140 Anne Cappella Silicon Valley View Bio anne.cappella@weil.com +1 650 802 3141 Courtney Carpinello New York courtney.carpinello@weil.com +1 212 310 8405 Celine Chan New York View Bio celine.chan@weil.com +1 212 310 8045 Sarah Chaplin New York View Bio sarah.chaplin@weil.com +44 20 7903 1732 Evert Christensen New York View Bio evert.christensen@weil.com +1 212 310 8144 Colleen Connors New York View Bio colleen.connors@weil.com +1 212 310 8241 Jennifer Brooks Crozier New York View Bio jennifer.crozier@weil.com +1 212 310 8005 Andrew Dean New York View Bio andrew.dean@weil.com +1 212 310 8970 Wes Derrick Silicon Valley View Bio wesley.derrick@weil.com +1 650 802 3005 Charlotte de Vitry London View Bio charlotte.devitry@weil.com +44 20 7903 1594 Jessica Falk New York View Bio jessica.falk@weil.com +1 212 310 8511 Tom Fiascone Boston View Bio tom.fiascone@weil.com +1 617 772 8314 Clyde Freeman New York clyde.freeman@weil.com +1 212 310 8036 LITIGATION TRENDS 2025 | 9 Matt Gang New York View Bio matt.gang@weil.com +1 212 310 8342 Matthew Gibbon London View Bio matthew.gibbon@weil.com +44 20 7903 1362 Clare Godfryd New York clare.godfryd@weil.com +1 212 310 8503 Jon Greenstein New York View Bio jon.greenstein@weil.com +1 212 310 8193 Christopher Hall New York View Bio christopher.hall@weil.com +1 212 310 8885 Jenna Hann New York View Bio jenna.hann@weil.com +1 212 310 8416 Jasmine Harris Dallas View Bio jasmine.harris@weil.com +1 214 746 8147 Jenna Harris New York View Bio jenna.harris@weil.com +1 212 310 8245 William Hereward New York View Bio william.hereward@weil.com +1 212 310 8371 Shane Kuse New York View Bio shane.kuse@weil.com +1 212 310 8449 Charles Lee Silicon Valley View Bio charles.lee@weil.com +1 650 802 3045 Brian Liegel Miami View Bio brian.liegel@weil.com +1 305 577 3180 Morgan MacBride Silicon Valley View Bio morgan.macbride@weil.com +1 650 802 3044 Katheryn Maldonado Washington, D.C. katheryn.maldonado@weil.com +1 202 682 7122 Christopher Marks London View Bio christopher.marks@weil.com +44 20 7903 1363 8 | Weil, Gotshal & Manges LLP
CONTRIBUTORS (CONTINUED) Peter Mee Boston View Bio peter.mee@weil.com +1 617 772 8303 Rosalind Meehan London View Bio rosalind.meehan@weil.com +44 20 7903 1146 Rob Meyer Washington, D.C. View Bio robert.meyer@weil.com +1 202 682 7193 Alex Rahmanan New York View Bio alex.rahmanan@weil.com +1 212 310 8564 Helena Rickards New York helena.rickards@weil.com +1 212 310 8579 Jasmine Rosner Washington, D.C. View Bio jasmine.rosner@weil.com +1 202 682 7150 Noah Rushin Washington, D.C. noah.rushin@weil.com +1 202 682 7265 Zach Schreiber New York View Bio zach.schreiber@weil.com +1 212 310 8739 Jordan Siskind-Weiss New York jordan.siskind-weiss@weil.com +1 212 310 8462 Rebecca Sivitz Boston View Bio rebecca.sivitz@weil.com +1 617 772 8339 Robert Stern Washington, D.C. View Bio robert.stern@weil.com +1 202 682 7190 Elizabeth Sytsma New York View Bio elizabeth.sytsma@weil.com +1 212 310 8027 Michael Taddei New York View Bio michael.taddei@weil.com +1 212 310 8697 Zhi Yang Tan Silicon Valley View Bio zhiyang.tan@weil.com +1 650 802 3136 Stella Tregear London View Bio stella.tregear@weil.com +44 20 7903 1467 LITIGATION TRENDS 2025 | 11 Cole Uzat Silicon Valley View Bio cole.uzat@weil.com +1 650 802 3275 Stefania Venezia New York View Bio stefania.venezia@weil.com +1 212 310 8303 Amber Venturelli New York View Bio amber.venturelli@weil.com +1 212 310 8678 Michael Verdichizzi New York View Bio michael.verdichizzi@weil.com +1 212 310 8635 Amy Waddington London View Bio amy.waddington@weil.com +44 20 7903 1469 Sanjay Wadhwa New York View Bio sanjay.wadhwa@weil.com +1 212 310 8750 Jenae Ward Dallas View Bio jenae.ward@weil.com +1 214 746 7749 Craig Watson London View Bio craig.watson@weil.com +44 20 7903 1218 Jeff White Washington, D.C. View Bio jeff.white@weil.com +1 202 682 7059 Katie Williams London View Bio katie.williams@weil.com +44 20 7903 1454 Rhys Williams London View Bio rhys.williams@weil.com +44 20 7903 1207 Nicholas Wing New York View Bio nicholas.wing@weil.com +1 212 310 8508 Nicole Zelada Silicon Valley View Bio nicole.zelada@weil.com +1 650 802 3135 10 | Weil, Gotshal & Manges LLP
14 Antitrust 22 Cross-Practice Focus: Appeals and Strategic Counseling 28 Cross-Practice Focus: Class Actions 34 Complex Commercial Litigation 44 Employment 54 Cross-Practice Focus: Environmental, Social & Governance 66 International Arbitration 74 IP/Media 84 Patent Litigation 96 Product Liability 106 Securities Litigation 118 Cross-Practice Focus: Sports 130 White Collar Defense LITIGATION TRENDS 2025 LITIGATION TRENDS 2025 | 13 12 | Weil, Gotshal & Manges LLP
LITIGATION TRENDS 2025 | 15 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C In the United States, the Biden Administration continued its aggressive antitrust enforcement agenda until its last days, including by launching two antitrust suits on the Friday before Inauguration Monday. Early signs from the second Trump Administration suggest antitrust scrutiny is unlikely to ease as much as some have predicted. Meanwhile, the rise of antitrust class actions in the UK raises risks for companies doing business across the pond. Clients should continue to anticipate antitrust scrutiny for both transactions and business practices that could lead to anticompetitive harm. U.S. Merger Scrutiny Unlikely to Abate Under Trump While the change in administration and leadership at the federal agencies may be more favorable to business generally, initial signals suggest that active antitrust enforcement and merger litigation will continue under the second Trump Administration. First, the Federal Trade Commission and Department of Justice Antitrust Division under the first Trump Administration brought several high profile merger cases, including challenges under both horizontal and vertical theories of harm. For example, federal enforcers litigated AT&T/Time Warner and opened investigations into Nvidia/ Arm and Illumina/Grail, with Republican FTC Commissioners nominated by Trump voting with their Democratic colleagues to challenge the latter two transactions. Second, the FTC and DOJ leadership under the second Trump Administration have signaled that they intend to follow certain policies from the Biden Administration. On February 18, 2025, the DOJ and FTC each announced their commitment to maintaining the 2023 Merger Guidelines, which advocates a presumption of illegality for mergers with a combined market share starting at 30% and is perceived as a lowering of the standard for government merger challenges. Newly appointed FTC Chairman Andrew Ferguson explained that maintaining the 2023 Merger Guidelines promotes predictability and stability and saves limited government resources from having to rewrite guidelines with each Antitrust Jenine Hulsmann Co-Head, Europe London, Brussels jenine.hulsmann@weil.com Brianne Kucerik Co-Head, U.S. Washington, D.C. brianne.kucerik@weil.com Michael Moiseyev Co-Head, U.S. Washington, D.C. michael.moiseyev@weil.com Jeffrey H. Perry Co-Head, U.S. Washington, D.C. jeffrey.perry@weil.com I 14 | Weil, Gotshal & Manges LLP
LITIGATION TRENDS 2025 | 17 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C new administration. We believe this leaves open the possibility that the second Trump Administration may not scrutinize or challenge mergers to the full extent contemplated under the 2023 Merger Guidelines, but nevertheless have decided to leave the Guidelines in place to preserve resources and avoid undermining the value of the Guidelines to courts by rescinding them too early or too often. Third, within weeks of Trump taking office, the federal antitrust enforcers initiated two merger challenges. On January 30, 2025, the DOJ sued in the Northern District of California to block Hewlett Packard Enterprises’s proposed acquisition of Juniper Networks, a transaction involving a horizontal overlap between the alleged second- and third-largest providers of enterprise-grade Wireless Local Area Network (WLAN) solutions. Notably, the parties’ combined market share would be relatively low (20-30%) and the transaction was unconditionally cleared in the UK and European Union on seemingly similar facts. Nonetheless, the DOJ challenged the transaction, citing the 2023 Merger Guidelines and alleging that the transaction would eliminate “fierce” head-to-head competition, “weaken innovation,” and facilitate coordination among the remaining WLAN providers. The lawsuit reveals that antitrust enforcers still are willing to push the envelope in challenging transactions that they believe are anticompetitive, although the theory of harm – i.e., head-to-head competition between rival firms – is hardly groundbreaking. Antitrust Enforcers Still Have a Full Docket of Monopolization Cases While many credit the Biden Administration with the anti-monopolist movement, most of the Big Tech monopolization investigations were launched by the DOJ and FTC during Trump’s first term. Since that time, there has been a historic wave of monopolization lawsuits brought by federal antitrust enforcers and state attorneys general – and 2024 was no exception. We expect the Trump Administration will continue to vigorously prosecute these cases, particularly given the Trump Administration’s apparent focus on Big Tech. In the biggest antitrust news of 2024, DOJ secured a liability victory in the Google Search monopolization case, which found that Google’s exclusivity agreements with other tech companies allowed it to monopolize internet search queries and certain search advertisements. In March 2025, DOJ filed an updated remedy request seeking for Google to divest the Chrome browser, suggesting that the Trump Administration is committed to an aggressive approach. The case now has a trial on remedies slated for April 2025. The DOJ’s Google Ad Tech trial concluded in November and is awaiting an opinion, while the State of Texas trial against Google’s Ad Tech practices begins in March 2025. As the DOJ’s Google trials were winding down, DOJ launched monopolization suits against Apple (monopolization in the smart phone market), Live Nation-Ticketmaster (live events), and Visa (debit card networks). DOJ also sued RealPage for monopolization in commercial revenue management software used for apartment pricing, as well as alleging that instituting algorithmic pricing was an illegal agreement on price between RealPage and its landlord customers. These cases are all in early days, and while a Antitrust The lawsuit reveals that antitrust enforcers still are willing to push the envelope in challenging transactions that they believe are anticompetitive, although the theory of harm is hardly groundbreaking. I 16 | Weil, Gotshal & Manges LLP
LITIGATION TRENDS 2025 | 19 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C change in administration sometimes brings a change in priorities, it seems unlikely that Trump’s DOJ will withdraw its support for all of these litigations. In 2024, the FTC’s monopolization caseload focused on ongoing litigations. Its trial against Meta challenging the Instagram and WhatsApp acquisitions begins in April 2025, and its case against Amazon for alleged anti-discounting practices that ensure Amazon offers the lowest price among retailers and alleged tying of Amazon’s fulfillment service for “Prime” eligibility is scheduled for trial in 2026. New leadership at the FTC seems poised to continue these cases. Among FTC Chairman Andrew Ferguson’s priorities is “[f]ocus[ing] antitrust enforcement against Big Tech monopolies, especially those companies engaged in unlawful censorship.” While the federal antitrust enforcers seem to have full dockets and limited resources, DOJ and FTC leadership may see a mandate to continue to pursue monopolization matters against dominant firms. In nominating Gail Slater to be Assistant Attorney General for Antitrust, President Trump noted that she would fight against Big Tech’s “stifling competition [and] using its market power to crack down on the rights of so many Americans.” Moreover, states attorneys general are poised to take on the mantle of antitrust enforcement should federal enforcers’ priorities shift. Democratic Attorneys General from Colorado, California, Michigan, and other states have vowed to independently enforce the antitrust laws. Meanwhile, Republican Attorneys General are expected to use antitrust to pursue at least a narrower agenda related to anti-ESG and anti-DEI priorities, as with the suit by eleven Republican state AGs against BlackRock, State Street, and Vanguard for allegedly conspiring to restrict coal production as influenced by their public commitments to reduce carbon emissions. Given the recent activity and focus on antitrust by various U.S. enforcers, we expect antitrust to be a key area of U.S. litigation in the years to come. The Rise of Standalone UK Class Actions Legislative and case law developments and consequent industry changes over the past decade have led to a surge in opt-out collective proceedings before the UK’s Competition Appeal Tribunal (CAT). Increasingly, complainants are bringing high-value standalone abuse of dominance claims, often based on novel theories of harm, leading to heightened antitrust risks for those doing business in the UK. Previously in England, private followon damages actions were the typical route for those affected by competition law breaches to seek direct redress following a finding of infringement by the UK or EU antitrust agencies. This started to change with the Consumer Rights Act 2015, which introduced a groundbreaking collective action regime, including U.S.-style opt-out actions, and has contributed to an increase in standalone claims. The first applications to the CAT for collective proceedings orders soon followed, including the 2016 Merricks v. Mastercard claim. After an initial refusal and appeal to the Court of Appeal, in 2020, the Supreme Court lowered the hurdle for certification and, in doing so, was seen to pave the way for future claims. Indeed, 85% of active CAT proceedings were issued from 2021 onwards, and all but one are opt-out claims or claims that include opt-out elements. The majority of these claims relate to alleged abuses of a dominant position, often based on novel or unusual theories of harm rarely pursued by competition regulators, such as excessive pricing or unfair trading terms. Companies across a range of sectors have been targeted, with a particular emphasis on large tech platforms such as Alphabet/Google, Amazon, Apple and Meta. First Claim Dismissed But Uncertainty Abounds On December 19, 2024, the CAT delivered its judgment in Le Patourel v. BT Group. This £1.3bn claim, relating to Antitrust I 18 | Weil, Gotshal & Manges LLP
LITIGATION TRENDS 2025 | 21 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C historic alleged excessive pricing of telecom landline services, was the first opt-out collective action to proceed to trial. The claim followed a provisional finding by the UK telecoms regulator, Ofcom, in 2017 that BT had charged prices above competitive levels. The claim was unanimously dismissed by the CAT, which found that BT’s charges were ‘excessive’ – in that they significantly exceeded a competitive benchmark price based on a reasonable rate of return – but not ‘unfair’ when other factors such as the economic value of the services were taken into consideration. While the Le Patourel claim may have failed, it did so on highly fact specific grounds, which are unlikely to give businesses confidence that further claims of this nature will be deterred. Further collective action claims are due to be heard by the CAT in 2025, including the Rachel Kent v. Apple claim, relating to Apple’s App Store policies, the outcome of which will be closely watched for the potential impact on the increasing use of the CAT as a forum for bringing such claims against large tech companies. As the landscape for collective actions in the UK continues to unfold, companies will need to be ever more vigilant with their business practices and take steps to mitigate exposure to largescale competition claims. With novel theories of harm and potentially substantial damages awards, the heightened risks do not appear to be abating any time soon. Antitrust I With novel theories of harm and potentially substantial damages awards, the heightened risks do not appear to be abating any time soon. 20 | Weil, Gotshal & Manges LLP
LITIGATION TRENDS 2025 | 23 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C Robert B. Niles-Weed Co-Head New York robert.niles-weed@weil.com Mark A. Perry Co-Head Washington, D.C. mark.perry@weil.com Greg Silbert Co-Head New York gregory.silbert@weil.com Zack Tripp Co-Head Washington, D.C., New York zack.tripp@weil.com Major Action on Administrative Agencies from the Supreme Court The Supreme Court’s 2023-2024 Term was a blockbuster for administrative law. While prior Litigation Trends Reports have covered various aspects of the Supreme Court’s decisions in this area, the Court’s decisions last year are among its most significant in generations. These cases are likely to affect the government, individuals, corporations, and other entities for generations to come. First, in SEC v. Jarkesy, No. 22-859, the Supreme Court held that the Securities and Exchange Commission cannot pursue civil penalties for securities fraud claims in in-house tribunals, and instead must pursue such claims in court. Writing for a 6-3 majority, Chief Justice Roberts reasoned that the Seventh Amendment’s jury trial right was implicated by these statutory securities fraud claims – meaning that defendants have a right to defend such claims in court rather than in front of the agency’s own adjudicators – because of the close relationship between those claims and common law fraud. The Court held that Appeals and Strategic Counseling these claims do not fall within the “public rights” exception that allows Congress to delegate adjudication of certain claims to a non-Article III administrative tribunal. Jarkesy’s impacts are significant, both for the SEC and for other agencies. Most immediately, Jarkesy will force the SEC to bring suits for civil penalties in federal court, where defendants have greater procedural protections and a jury trial right. This change of forum may reduce the government’s success rate in such cases, or, perhaps, chill the SEC from bringing certain cases at all. As Justice Gorsuch noted in his concurrence, the “SEC won about 90% of its contested in-house proceedings compared to 69% of its cases in court.” Jarkesy’s effects, however, are likely to be felt far beyond the SEC. As Justice Sotomayor noted in dissent, “more than 200 statutes authoriz[e] dozens of agencies to impose civil penalties for violations of statutory obligations.” And some of those agencies – including the Occupational Safety and Health Review Commission, the Federal Energy Regulatory Commission, the Department of Agriculture, and others – can seek civil penalties only in agency proceedings, meaning that Jarkesy may leave those agencies with no avenue to seek such penalties going forward. Second, in Loper Bright Enterprises v. Raimondo, No. 22-451, the Supreme Court overturned its 1984 decision in Chevron v. Natural Resources Defense Council, and held that an agency’s interpretation of a statute it is charged with administering is not entitled to any deference in a judicial proceeding. In another 6-3 decision, also written by Chief Justice Roberts, the Court held that deferring to an agency’s interpretation is inconsistent with the Administrative Procedure Act, which requires a court to decide all relevant questions of law. The Court emphasized that Chevron’s alternative approach allowing deference to an agency’s interpretation was “unworkable” and “fundamentally misguided.” Loper Bright is likely to impact a variety of diverse areas of administrative law – and its impact is already being felt. To be sure, Loper Bright does not CROSS-PRACTICE FOCUS 22 | Weil, Gotshal & Manges LLP
LITIGATION TRENDS 2025 | 25 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C immediately invalidate any existing regulations, and the Supreme Court narrowed its holding by stating that prior decisions applying Chevron remain good law. But in the months following the Court’s decision, a number of lower courts have already invoked Loper Bright to rule against agency action. And the case’s greatest impact may be in its disciplining effect on agencies, who will likely hesitate to advance aggressive interpretations of statutory language and may be inclined to adopt a more cabined view of the scope of agency authority. Third and finally, the Supreme Court’s decision in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, No. 22-1008, has received somewhat less attention than either Jarkesy or Loper Bright, but it is nonetheless significant since it expands the availability of potential challenges to agency action. In Corner Post, the Supreme Court held 6-3, in an opinion by Justice Barrett, that the six-year statute of limitations for challenges to agency rules under the Administrative Procedure Act does not begin to run until the date the plaintiff is first injured by the rule, even if that occurs long after the rule’s promulgation. As Justice Barrett explained, the Administrative Procedure Act “embodies the plaintiff-centric traditional rule that a statute of limitation begins to run only when the plaintiff has a complete and present cause of action.” Especially when coupled with Loper Bright, Corner Post is likely to expand the number of agency rules that are litigated and increase challengers’ success rate in such challenges. Now, rules may be challenged long after they are promulgated, including by newly-incorporated entities funded or supported by other regulated entities whose own claims to a particular rule would otherwise be time barred. While the full scope of the impact of these three decisions remains to be seen, they are likely to limit the scope of agency oversight over regulated entities and expand the aperture for industry challenges to agency action. And there is little indication that the Supreme Court’s role in this area is likely to diminish any time soon, as actions by the Trump Administration are already raising novel administrative law issues that the Court will likely address before long. The End of Third-Party Releases in Bankruptcy? The Supreme Court in its 2023-2024 Term did not limit its blockbuster rulings to the area of administrative law; it also issued a generationally significant bankruptcy ruling in Harrington v. Purdue Pharma LP. Nonconsensual third-party releases have become a common feature of mass tort bankruptcy cases. Such releases, which release claims against non-debtors without the express consent of affected claimants, have commonly been included in proposed plans of reorganization and have facilitated global resolutions of a number of complex bankruptcies. In Purdue Pharma, the Supreme Court held in a 5-4 decision that the Bankruptcy Court does not authorize bankruptcy courts to confirm a Chapter 11 plan that includes nonconsensual CROSS-PRACTICE FOCUS Appeals and Strategic Counseling ANOTHER BANNER SCOTUS TERM FOR ADMINISTRATIVE LAW Case SEC v. Jarkesy Loper Bright Enterprises v. Raimondo Corner Post, Inc. v. Board of Governors of the Federal Reserve System Holding SEC cannot pursue civil penalties for securities fraud claims in in-house tribunals A regulatory agency’s interpretation of a statute is not entitled to deference in court The six-year statute of limitations for challenges to agency rules under the APA begins after plaintiff is first injured by that rule 24 | Weil, Gotshal & Manges LLP
LITIGATION TRENDS 2025 | 27 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C third-party releases. Justice Gorsuch, writing for the majority, focused on Section 1123(b)(6) of the Bankruptcy Code, which provides that a bankruptcy plan may “include any other appropriate provision not inconsistent with the applicable provisions of” the Code. The Court reasoned that this broad language does extend so far as to authorize third-party releases, given that the focus of the Code’s bargain and the other provisions in Section 1123(b) is on the debtor and not third parties. “A debtor can win a discharge of its debts if it proceeds with honesty and places virtually all its assets on the table for its creditors,” the Court explained. But, the Court held, bankruptcy courts may not “effectively extend to nondebtors the benefits of a Chapter 11 discharge usually reserved for debtors.” The broader impact of Purdue Pharma remains to be seen. Most directly, the opinion scuttled the specific bankruptcy plan that had been proposed – and agreed to by nearly all involved parties – in that case. More broadly, while the Court was clear that nonconsensual third-party releases are off the table in bankruptcy (except where they may be expressly authorized by statutes, as in asbestos cases), the Court was careful to leave open the possibility of consensual releases. This has led to ongoing litigation in bankruptcies in Purdue Pharma’s wake about the precise form and process that securing such consent must take, including whether “opt-out” mechanisms are sufficient to protect claimants’ rights in this context. Supreme Court’s Shrinking Business Docket Leaves Important Questions Unanswered In a prior Litigation Trends Report we noted the Supreme Court’s shrinking docket and willingness to avoid ruling on issues of significance to the business community even in the few commercial cases it chooses to hear. The Court’s 2023-2024 Term was no different, with the Court again issuing fewer than sixty opinions and refusing to decide several key business issues – this year by dismissing two important securities law cases on which it had granted review. The first case, Facebook, Inc. v. Amalgamated Bank, concerned the scope of public companies’ risk factor disclosure obligations under Item 105 of SEC Regulation S-K. Specifically, the Court granted review to decide whether risk disclosures that fail to disclose that a specific risk has materialized in the past are false or misleading if the past event does not present any known risk of ongoing or future harm to the company. But, at oral argument, the Justices’ questions suggested that the case involved more of a fact-intensive dispute about the specific events and risk disclosures in the case, rather than raising a clean legal issue for the Court to resolve. The Court dismissed the case as improvidently granted just over two weeks after the argument. The second case, NVIDIA Corp v. E. Ohman J:or Fonder AB, leaves unresolved two questions about the Private Securities Litigation Reform Act (“PSLRA”). First, this case presented the question of whether plaintiffs seeking to allege scienter – a necessary element of a private securities fraud claim under the PSLRA – based on allegations about a company’s internal documents must plead the contents of those documents with particularity. And second, the case involved the question of whether plaintiffs’ can satisfy the PSLRA’s falsity requirement by relaying on an expert opinion as a substitute for particularized allegations of fact. In this case, too, oral argument revealed that the dispute hinged less on abstract principles of law and more on determining whether the lower court had erred in applying settled law to the particular facts of this case. As Justice Sotomayor put it at oral argument, “We don’t often grant cert to error-correct. Is this entire case just an error correction?” And, as the argument went on, Justice Kagan found it “less and less clear why we took the case.” The Justices dismissed this case as improvidently granted, this time about a month after argument. With these two cases off the docket, the Supreme Court ducked two more opportunities to resolve issues of importance to the business community, at a moment when the Court’s business docket is already historically diminished. CROSS-PRACTICE FOCUS Appeals and Strategic Counseling 26 | Weil, Gotshal & Manges LLP
LITIGATION TRENDS 2025 | 29 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C David Singh Partner Silicon Valley david.singh@weil.com Class Actions Targeting Hidden Fees Hidden fees have become a major concern for consumers, leading to a rise in class action lawsuits and regulatory enforcement. Hidden fees – often referred to as “junk fees” or “drip pricing” – are fees that are not disclosed upfront to consumers, but are added at the final stages of transactions. These fees can appear in various forms, including service charges, administrative fees, or processing costs, often making the total price of a product or service significantly higher than what was initially advertised. The FTC has made clear that eliminating hidden fees is a regulatory priority, signaling that businesses engaging in these practices will face increased scrutiny and potential enforcement actions. Private plaintiffs may also utilize new laws against hidden fees to bring their class actions in the coming year. Effective May 12, 2025, the FTC’s Rule on Unfair or Deceptive Fees will prohibit businesses that sell live-event tickets and short-term lodging from: (1) failing to clearly and conspicuously disclose the maximum total of all fees or charges a consumer must pay for any good or service (the “total price”); (2) displaying the total price less prominently than other pricing information; (3) failing to clearly and conspicuously disclose all fees excluded from the total price; and (4) misrepresenting the fees associated with the purchase. California’s Senate Bill 478 (“SB 478”), Class Actions effective July 1, 2024, also amended the California Legal Remedies Act to prohibit advertising prices that do not include all mandatory fees or charges. Besides these new additions, traditional state consumer protection laws remain a viable avenue for consumers to challenge hidden fees. To mitigate future risk, businesses should consider adopting proactive strategies to ensure they are transparently communicating their pricing to customers. Business should clearly disclose all fees upfront, near the advertised price, and prominently display the final price inclusive of those fees. Third-party audits can also help businesses identify areas for change, such as hidden fees that appear late in the transaction, vague terms like “processing fee” without explanation, or inconsistent fee disclosures. By adopting transparent pricing structures and regularly reviewing their practices, businesses can reduce legal risk and maintain consumer trust. Ad Tech Privacy Class Actions: A Growing Legal Risk for Businesses As companies collect vast amounts of user data for personalized advertising, they face growing litigation risks over privacy violations, improper data sharing, and noncompliance with consumer protection laws. Ad tech, or advertising technology, refers to the digital tools used by nearly all major website operators to track and collect user information and activity, and deliver targeted ads to consumers across websites, apps, and social media. There has been a surge in privacy concerns based on businesses that leverage consumer data through the use of tracking technologies such as cookies, pixels, and session replay tools, triggering a wave of class action lawsuits. In 2024, plaintiffs filed more than two hundred class action complaints in jurisdictions across the country concerning the use of tracking technologies such as the Meta Pixel or Google Analytics. Plaintiffs often allege that companies implementing CROSS-PRACTICE FOCUS 28 | Weil, Gotshal & Manges LLP
LITIGATION TRENDS 2025 | 31 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C these tools are unlawfully collecting and transmitting data without user consent and violating privacy laws such as the federal Wiretap Act and its state counterparts, the California Consumer Privacy Act (“CCPA”), and the Video Privacy Protection Act (“VPPA”). Ad tech privacy lawsuits pose significant challenges for companies. Many companies lack full control over how these tools operate, which can result in inadvertent data sharing and noncompliance with privacy laws. Small and medium-sized companies, in particular, often may adopt off-the-shelf technologies without fully understanding their privacy implications. This lack of visibility, coupled with the failure to secure proper user consent and make adequate disclosures about data collection, can lead to significant exposure. Recent legal developments have also made it increasingly difficult for companies to avoid liability in ad tech privacy cases. These rulings have expanded the interpretation of privacy statutes, making it easier for consumers to successfully challenge companies under broad legal theories. Additionally, these lawsuits often involve fact-intensive questions that make early dismissal difficult. Moreover, courts frequently allow cases to proceed past the motion to dismiss stage because they require deeper analysis of how tracking technologies function, whether user consent was obtained, and whether the company’s data collection practices violate privacy laws. Statutory damages for violations can also quickly add up, as many laws impose per-violation penalties, meaning even small infractions against individual users can potentially lead to multimillion-dollar liabilities. To mitigate risks, companies should consider conducting regular privacy impact assessments to identify potential risks in their data collection and tracking practices. This includes internal audits of all tracking technologies in use, ensuring that third-party tools like Meta Pixel, Google Analytics, and session replay scripts comply with applicable privacy laws. Businesses must also ensure that their data-sharing agreements with vendors include strict contractual limitations on data usage to prevent unauthorized data transfers. Companies have found success investing in firstparty analytics tools that do not rely on external data sharing, and using anonymized data processing methods that strip personal identifiers before any tracking occurs. Additionally, companies should ensure they obtain explicit user consent, particularly when collecting sensitive data such as health or financial information. Companies should also ensure that opt-in mechanisms for tracking are readily apparent to the user, clearly communicate the tracking that may take place, and avoid pre-checked boxes or excessive steps to opt out of certain tracking. Finally, tracking technologies should be configured to limit data collection to only what is strictly necessary for business operations. By proactively incorporating these strategies, companies can reduce their exposure to legal risk while maintaining a competitive edge in an increasingly privacy-conscious marketplace. Toxic Ingredient Class Actions Many everyday consumer products contain chemicals that have come under increased scrutiny due to potential health risks. As awareness of these risks has grown, two main types of litigation have emerged – personal injury or mass tort suits based on an injury suffered directly from their use CROSS-PRACTICE FOCUS Class Actions THE AD TECH PRIVACY TRIPLE THREAT Expanded Judicial Interpretation of Privacy Statutes Challenging Pre-Trial Motion Practice Landscape High Exposure Tied to Statutory Per-Violation Penalties 30 | Weil, Gotshal & Manges LLP
LITIGATION TRENDS 2025 | 33 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C of the product, and false advertising or consumer protection class actions based on a manufacturer’s marketing practices. Regulatory complexity adds yet another layer of difficulty – some products comply with FDA or EPA standards but are still at risk of litigation, as some plaintiffs have successfully argued that legal compliance does not necessarily equate to safety. As scientific research and consumer protection laws evolve, plaintiffs in toxic ingredient class actions are leveraging multiple legal theories to try to hold manufacturers accountable. Plaintiffs commonly bring failure to warn claims, arguing that companies knew or should have known about potential health risks but failed to provide adequate warnings to consumers. As new studies emerge linking chemicals to health concerns, courts are beginning to accept these arguments even where regulatory agencies have not explicitly banned a substance. For instance, class actions have been initiated against manufacturers based on a single study by testing laboratory Valisure, linking benzoyl peroxide acne products to impermissibly high levels of benzene. Contaminated products may be subject to a recall, leaving companies with considerable damages and reputational damage. Another key theory is false advertising, whereby companies that market their products as “safe,” “natural,” or “non-toxic” may face liability if their products contain harmful substances. This legal theory can also bring significant damages, as plaintiffs seek to recover the difference between the price they paid for the product and the true market price that reflects the alleged misleading or false advertising. Defending against toxic ingredient lawsuits presents significant challenges for manufacturers. Scientific uncertainty is a major hurdle, as many cases rely on emerging research rather than definitive scientific consensus. This introduces factual disputes that can extend the lawsuit past the pleading stage. Class certification also poses a risk for defendants, as plaintiffs argue that exposure to a toxic ingredient creates a common injury, even if individual consumers experience different health effects. To reduce litigation risks, manufacturers should take a proactive approach to ingredient safety and consumer transparency. Legal exposure may be reduced by clearly listing all ingredients and avoiding misleading marketing claims. Regular safety testing should also be implemented, as independent lab verification can help manufacturers confirm the safety of their products. Further, by verifying scientific studies and reformulating products based on the latest research, companies may be able to stay ahead of potential litigation. In an era where consumer safety concerns are paramount, companies that demonstrate a commitment to transparency and compliance are more likely to maintain consumer trust and avoid costly litigation. CROSS-PRACTICE FOCUS Class Actions MITIGATING TOXIC INGREDIENT CLASS ACTION RISK Clearly list all ingredients and avoid misleading marketing claims 1 Implement regular safety testing via independent laboratories 2 Reformulate products based on latest scientific studies and best practices 3 32 | Weil, Gotshal & Manges LLP
LITIGATION TRENDS 2025 | 35 T O C E M P E S G A N T I I P C A P R O W C S P O R T C O N T A C T I N T A P P P A T C C L S E C Companies Continue to Develop Strategies to Combat Mass Arbitration In 2011, the United States Supreme Court upheld class action-banning arbitration clauses in standard-form contracts. AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 343 (2011). In the nearly fifteen years since the Concepcion decision, the plaintiffs’ bar has worked assiduously to chip away at arbitration’s supremacy, but without much success. Recently, however, plaintiffs’ lawyers have attempted to exploit class-action banning arbitration clauses by bringing “mass arbitrations” – i.e., arbitrations in which lawyers file hundreds or even thousands of separate arbitration demands on behalf of claimants asserting identical claims. These lawyers reason that respondents will settle early in order to avoid the staggering cost of arbitrating a multitude of individual arbitration demands. Companies have responded to the threat of mass arbitration with several strategies. For example, companies have amended their standard-form contracts’ arbitration provisions by requiring that claimants personally participate in a pre-filing settlement conference before filing arbitration demands. See, e.g., Terms and Conditions, SAMSUNG (last visited Feb. 19, 2025). Companies have also moved away from traditional arbitral providers to providers whose rules require the parties to split fees and costs or require the non-prevailing party to pay fees and costs. See, e.g., Snap Inc. Terms of Service, SNAP INC. (last visited Feb. 19, 2025). Some companies have attempted to deploy the smallclaims election clauses in their standard-form contracts, which permit either party to elect to resolve disputes in small claims court. See, e.g., Baker v. Match Grove, Inc., No. 22-cv-6924, 2023 WL 3737808, at *1 (N.D. Ill. May 31, 2023). Still other companies have imposed rules that require the “batching” of mass claims – i.e., the use of bellwethers for the resolution of common issues. See, e.g., Terms of Use, OPENAI (last visited Feb. 19, 2025). L Complex Commercial Litigation Greg Silbert Co-Head New York gregory.silbert@weil.com David Singh Co-Head Silicon Valley david.singh@weil.com 34 | Weil, Gotshal & Manges LLP
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