Litigation: The year in review

As we wrap up our presents, it’s time to wrap up the year with a look at lessons learned in 2011

In keeping with the spirit of the holidays, it’s time to reflect on 2011 and think about ways to improve in the year to come. As the adage goes, those who cannot remember the past are doomed to repeat it, and looking back, there’s much both to be grateful for and to learn from. Legally speaking, reviewing a year of seminal cases, legislation and events is the best way to forecast next year for inside and outside counsel alike. To maintain a holiday tradition of sorts, for my end-of-year column here are a few takeaways from 2011 and tips for 2012, using this past year’s columns as a guide.

Deck the halls with SEC enforcement actions. In the post Dodd-Frank world, the SEC has enthusiastically brought actions against big and small violations at an unprecedented rate. Earlier this year, in “Broker-Dealers Beware,” I wrote about the SEC’s push for a uniform fiduciary standard for brokers, dealers and investment advisers when providing personalized investment advice to customers.

Predictably, there isn’t a resolution on the appropriate standard. But the SEC’s commitment to protect investors saw it commit to a more aggressive pursuit of alleged violators. The SEC had a record year, filing more enforcement actions than ever before. In the year to come, it is important for both inside and outside counsel to be aware of this increased vigilance.

Checking it twice. In “How the 2nd Circuit opened the door to double recovery,” I warned that spurned investors may now have a vehicle to recover twice—through a class action or tangentially related suit and then again via FINRA-mandated arbitration. For in-house counsel and their companies it is important to know that the end is just that—the end.

Complete relief and finality is the goal and the increasing use of this method for double recovery is something to keep in mind. In-house counsel should be aware of investors’ repeated attempts to recover their losses using a different adjudicator or with different claims. An onus must be placed on careful crafting of settlement agreements.

Look for change. The Foreign Corrupt Practices Act (FCPA) continued to make its way into the headlines this year. In “Who is a foreign official under the FCPA,” I noted that courts were broadly defining the term “foreign official” under the FCPA and that U.S. v. Noriega was the tip of the iceberg for the Department of Justice (DOJ). And it was. In 2010 and 2011, FCPA actions by the DOJ doubled. In 2012, look for companies to push back.

Last week, the New York City Bar Association issued a report to the government calling for changes to the FCPA, citing its disproportionate burdens on U.S. regulated companies. Take the opportunity in 2012 to push back yourself by writing to the government and voicing your concerns.

Be the change. I recently spoke to a group of first-year associates on the importance of doing pro bono work. Some were eager to get involved but weren’t sure how, some were worried about time commitments and others didn’t know what type of case they wanted to accept. Whatever the reasons are, it’s important to overcome that fear and dive in. I always enjoy urging new attorneys to embrace pro bono work, but it shouldn’t stop with young lawyers—it extends to all of us. For inside counsel, if you’re able, consider partnering with your outside law firms and asking about involvement in their pro bono programs.

I wish all of you a happy and healthy holiday season and New Year. It’s been a pleasure writing this column in 2011. Thanks to all of you for reading it.

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