Five Litigation Trends that can Keep Executives Awake at Night

The author identifies several trends in litigation that should be of concern to executives.

First on his list is false advertising claims. These include false benefit claims, false claims about how the product is constituted and false claims about performance.

False advertising claims can extend to almost any product or service, but are particularly popular in the food and beverage space. Proposition 37, though recently rejected by California residents, sheds light on the future of false advertising claims: If you wanted to label something as “all natural,” you’d have to verify how it is grown and what type of seed it is derived from.

Wage and hour litigation is a fast-growing type of litigation in the labor and employment context. The Department of Labor is implementing an initiative, as part of its Strategic Plan for Fiscal Years 2011-2016, to “shift the burden of compliance to the employer or other regulated entity rather than relying exclusively on enforcement interventions. No more `catch me if you can’ regulation and enforcement.”

The thread that ties these litigation trends together is exorbitant expense for a company once it becomes a target. The issues involved in these matters are complex, and therefore typically take longer to resolve. Motion practice is more common, and discovery costs – mostly relating to producing electronic communications – are substantial.

The author recommends a number of strategies intended to address these kinds of matters before they actually come up.