DISTRICT OF COLUMBIA: An Introduction to Litigation: General Commercial: The Elite

Attempts to forecast litigation trends generally do not look prescient in hindsight—but particularly so today, given the public health and economic uncertainties created by the COVID-19 pandemic. Assuming the recovery continues, however, it is a fair bet that commercial litigation will heat up in Washington D.C. and across the country over the next year as courts continue to reopen and take civil cases out of their holding pattern.

The Return of the Civil Jury Trial 

Civil jury trials came to an abrupt stop in 2020. Only 594 trials were held in federal district courts across the country, most of which occurred before the COVID-19 pandemic took hold around March. This number marked a precipitous drop from the 1,534 civil jury trials that occurred in 2019 and the 1,690 civil jury trials that occurred in 2018.

At the same time, civil case filings have continued to grow, driven largely by increases in personal injury and products liability lawsuits. For example, in 2020, pending civil cases grew 56% year-over-year from 2019, driven in large part by over 200,000 new personal injury and products liability lawsuits filed in multidistrict litigations.

It has been suggested that bench trials will be more commonly used to ease some of this backlog, but we do not think that such trials will become significantly more common. Bench trials generally require the consent of the parties, and even if both parties were to agree, finding an open spot on judicial calendars will prove even more difficult than usual.

Together, these facts suggest a significant uptick in jury trials is likely on the horizon.

The question is: when? In Washington D.C., criminal trials have resumed, but civil trials remain on pause until at least June 2021, at which time the Court has indicated that it will continue to give precedence to working through its backlog of criminal trials even if civil trials resume. This means that jury trials still won’t begin in force for at least a few months. But assuming recovery from the COVID-19 pandemic continues, we expect civil jury trials to become more common in the second half of the year, and to heat up considerably nearer the end of the year and into next.

Government Enforcement Actions 

Government enforcement actions have long been a major part of commercial litigation in Washington D.C., which is a hub of administrative forums. To name a few: the administrative courts of the Federal Trade Commission, which can bring a variety of consumer protection actions, sit in Washington D.C.; the Department of Justice has wide authority to bring civil antitrust actions in federal courts across the country, but it files most of these actions in Washington D.C., including historically some of its most significant cases; the International Trade Commission, which addresses intellectual property disputes involving imported goods and has become a popular forum for such disputes over the last decade, is also located here. And there are others.

Agencies brought a number of landmark cases last year that continue to be litigated today. In 2020, the Federal Trade Commission filed an administrative complaint alleging that Altria Group and JUUL Labs entered into several anticompetitive agreements. The Department of Justice’s high-profile lawsuit against Google, alleging that the company has unlawfully maintained its monopolies in several of its businesses, is pending in Washington D.C. And the Federal Trade Commission filed a similar lawsuit against Facebook in federal court in Washington D.C. as well. On top of federal actions, state attorneys general have become increasingly active in pursuing suits against businesses, including parallel claims in many of the litigations described above.

This trend is likely to increase in the coming years. Most expect agency enforcement actions, including high-stakes lawsuits against tech giants, to increase under the Biden administration. These cases, many of which pose the threat of significant monetary damages and penalties, are likely to occupy, and at times, perhaps threaten to overwhelm, the D.C. legal market for the next few years.

COVID-19 Pandemic-Related Litigation 

As has been widely reported, the COVID-19 pandemic has given rise to a variety of different commercial lawsuits: event-driven securities action precipitated by the 'Coronavirus Crash', employment-related actions arising out of a variety of actions taken by employers addressing pandemic-related issues, contract actions related to the failure to deliver goods or services, and others.

We have seen similar lawsuits in Washington D.C., and we expect that lawsuits filed over the next year are likely to contain many pandemic-related issues. But these lawsuits have not overwhelmed the judicial system, at least here. In Washington D.C., 3,912 civil lawsuits were filed in federal court in 2020, about the same number that were filed each of the past two years before that.

The other outstanding question is whether there will be any tort reform that will provide protection for businesses facing pandemic-related litigation. Efforts to pass a federal statute in Congress largely appear to have stalled for now, with most of the action moving to state legislatures. And Democratic control of both the Senate and the House seemingly makes it less likely that such a bill would pass. But, if pandemic-related litigation begins to heat up, it is possible that calls for federal legislation will heat up again.