PENNSYLVANIA: An Introduction to Litigation: General Commercial

Pennsylvania Litigation Trends to Watch in 2024 

In 2023, Pennsylvania courts continued with accelerated trial schedules to clear their pandemic-induced backlogs. While jury trials had remained in-person by necessity (with a near-complete pause in jury trials in 2020 and 2021 during the pandemic), many courts had been holding bench trials via remote technology in 2021 and 2022. In 2023, there was a shift where most Pennsylvania courts resumed holding bench trials in the courtroom. However, the state and federal courts are now conducting nearly all other hearings, including discovery motions and status conferences, on Zoom or Teams. This has made better use of attorneys’ and judges’ time, and allowed easier attendance by out-of-state counsel and parties.

Pennsylvania courts produced larger verdicts in 2023, continuing a trend over the last three years. There have been over a dozen Pennsylvania trial verdicts exceeding USD10 million in the last year. One factor may be third-party litigation funding, which continues to expand and become more prevalent in both personal injury and commercial litigation, and allows (and encourages) plaintiffs to avoid the need for early settlements due to growing legal fees and instead take their cases to trial. Another factor may be increasingly aggressive lawyer advertising, with frequent news of high dollar awards giving juries and parties an expectation of larger verdicts.

Life sciences and biotech continue to be hot growth areas in the Philadelphia and Pittsburgh regions, giving rise to numerous intellectual property trade secrets and patent infringement lawsuits, as well as shareholder disputes and class actions pending in the Pennsylvania state and federal courts.

The FTC’s “Non-Compete Ban” Will Dramatically Affect Businesses and Lead to Litigation 

In April 2024, the Federal Trade Commission (FTC) approved a Final Rule banning almost all worker noncompetes. The Final Rule will go into effect 120 days following its publication in the Federal Register. This “noncompete ban” will impact companies across the Pennsylvania region that rely on noncompete agreements as part of their business strategy, because it not only prohibits noncompetes going forward, but also invalidates nearly all existing noncompetes. There are exceptions to the FTC rule, including for existing senior executive noncompetes (for those in “policy-making positions” and earning over USD151,164 per year), for noncompetes already the subject of pending litigation, and for noncompetes tied to the sale of a business. These exceptions will undoubtedly be hotly litigated in Pennsylvania courts. The only way to challenge the FTC Final Rule is through litigation against the FTC. One of the first such cases was filed in late April 2024 in the Eastern District of Pennsylvania (ATS Tree Svcs. LLC v. FTC) and bears watching.

Monsanto “Roundup” Trials in Philadelphia State Court Bring Mixed Results, Nuclear and Defense Verdicts 

In the last year, agricultural chemical manufacturer Monsanto has defended four jury trials in the Philadelphia Court of Common Pleas. In the first trial, in October 2023, a Philadelphia jury found Monsanto liable for USD175 million in damages relating to a man’s claim that he developed non-Hodgkin’s lymphoma from exposure to Monsanto’s herbicide Roundup, and claiming that Monsanto failed to warn customers about carcinogens in the product. In the second trial, in December 2023, Monsanto and its parent company Bayer AG were hit with a smaller USD3.5 million verdict by a Philadelphia jury after a woman sued alleging she developed cancer from exposure to Roundup. In the third trial, Monsanto was walloped with a USD2 billion punitive damages verdict by a Philadelphia jury in a case brought by a Pennsylvania man who claimed Monsanto failed to warn users that the product contained carcinogens and contributed to his development of non-Hodgkin’s lymphoma. In the fourth trial, Monsanto won a defense verdict. The fourth case followed a February 2024 ruling that excludes any references to the International Agency for Research on Cancer, which found the active ingredient in Roundup can cause cancer. That ruling will be critical in future Roundup cases coming to trial in 2024.

Pennsylvania Expands Scope of Discrimination Protections 

In August 2023, the Pennsylvania Code was amended to define new protected classes under the Pennsylvania Human Relations Act and the Pennsylvania Fair Educational Opportunities Act. The regulations will become effective after a legislative review period and publication in the Pennsylvania Bulletin. The newly expanded regulations apply to landlords, realtors, property management companies, schools, colleges and universities, and Pennsylvania employers with four or more employees. The regulations specifically include protections for the LGBTQ+ community and broader definitions of sex, race and religious creed. Although the PHRC took the position that these protections were already covered by the Act, these more specific regulations will undoubtedly lead to new claims and litigation in Pennsylvania, and employers should take note.

Opioid Cases Winding Down in Pennsylvania 

In December 2023, Judge Barry Dozor of the Delaware County Court of Common Pleas, who oversees Pennsylvania’s coordinated opioid litigation, approved a USD28.4 million contingent fee award for eleven law firms representing Pennsylvania plaintiffs (those firms are designated payees, who then distribute portions of their awards to other plaintiff’s firms representing clients in the settlement). The fee award was paid out of the Pennsylvania Opioid Fee Fund—Pennsylvania’s approximately USD1 billion share of the USD26 billion global settlement between state and local governments and various pharmaceutical companies. The fee calculation and award are part of the larger wind-down of Pennsylvania’s opioid litigation. Most of the long-running opioid lawsuits have been resolved at this point.