Insights

Several litigation trends set in motion by recent  events continued in 2018 and have now become the “new normal.” In 2018, D. Delaware, as predicted, overtook E.D. Texas for the largest number of patent cases filed, a trend set in motion by the May 2017 Supreme Court decision in T.C. Heartland, which made personal jurisdiction for corporations a driving force in patent litigation forum selection. Another continuing trend: trade secret litigation has skyrocketed—tripled since 2016. This is no anomaly. Macro trends like the digitization of intellectual property, surging employee mobility, and reduced patent protection for software and business methods have combined with the Defend Trade Secrets Act of 2016 to make trade secret litigation an increasingly popular and effective tool for protecting high-tech assets. D. New Jersey has the most product liability filings, in large part due to the Johnson & Johnson Talcum Powder Products Liability Litigation multidistrict litigation (MDL) filed in the last months of 2017. But D. New Jersey is also the most frequent venue for non-MDL medical device and pharmaceutical product cases, due to the large number of device and drug manufacturers headquartered in that venue, again based on T.C.Heartland.

While past events are no guarantee of the future, certain litigation trends can be useful barometers. For example, the national downward trend for patent litigation has continued since the advent of the America Invents Act. But while the overall trend is downward, E.D. Texas still maintains its place as the most popular location for new patent cases—at least for now. But that trend may not hold. Patent case filings in D. Delaware have exploded due to the Supreme Court’s May 2017 decision in TC Heartland, and Delaware is now a close second to E.D. Texas. N.D. California also saw a dramatic rise in patent filings. Instead of flocking to E.D. Texas, patent owners are pivoting to D. Delaware and N.D. California, where venue can be established based on corporate headquarters. While E.D. Texas may still have more total IP filings due to its pre-TC Heartland head start, since that decision, Delaware has had the most filings and that trend will continue. Another trend is the dramatic increase in antitrust filings in E.D. Pennsylvania, which is largely due to the many pharmaceutical companies based there, and the In re: Generic Pharmaceuticals Pricing Antitrust Litigation, which is ongoing.

Some 2016 litigation trends are new, while others continue to follow familiar patterns. The Eastern District of New York became the hotbed for antitrust complaints, while the Eastern District of Texas continues its long-established reign as the most popular court for IP litigation. The Eastern District of Virginia earned its title as the "Rocket Docket," as cases proceeded from filing to trial faster than those in any other district.

In today’s world of using data to make better decisions, jurisdictional intelligence should play a key role in managing corporate legal dockets. This Jurisdictional Analysis highlights some of the important variables that effective litigation management strategies must take into account.