Commercial Litigation Update

Mass arbitration has quickly evolved into a major pressure point for companies, with filings surging into the hundreds of thousands each year. In a May 2025 infographic, the American Arbitration Association (AAA) reported receiving 82 consumer mass arbitrations that involved 247,327 individual filings. Only a small percentage of these individual claims—about 10% for consumer cases and 1% for employment cases—advanced through the AAA’s updated mass arbitration process. The top industries where mass arbitrations arose in the year 2024 were gaming and entertainment, telecommunications, healthcare, financial services, and tech. Projections for 2025 are expected to increase as mass arbitrating has become a growing litigation strategy, aimed at overwhelming companies with high volumes of filings. 

Although the window for filing lawsuits under the Child Victims Act (CVA) closed over four years ago, thousands of cases remain pending in courts throughout New York State.  Many of those cases involve public school districts. 

While we U.S. Supreme Court practitioners and observers await decisions in several already-argued cases of great significance regarding the separation of powers and executive authority, the Court this morning issued a per curiam opinion in the somewhat obscure case of John Doe v. Dynamic Physical Therapy, LLC.

To plead securities fraud, a plaintiff must allege that the defendant made a false statement or omitted a material fact, did so with scienter, and that the plaintiff relied on that misrepresentation and suffered injury. Many cases rise or fall on the scienter element—did defendant have the requisite “intent to deceive, manipulate, or defraud”?  That’s where a familiar refrain often surfaces:  “My lawyer said it was fine.”  The so-called advice-of-counsel defense can be a powerful shield.  When a defendant has laid out all the facts for their lawyer and acted with the lawyer’s blessing, it becomes harder for a plaintiff to prove the intent required under §10(b) of the Securities Exchange Act and related provisions.

Yet this defense carries a significant cost.  As Oklahoma Firefighters Pension & Retirement System v. Musk et al., 22-cv-03026 (S.D.N.Y. 2022), illustrates, asserting an advice-of-counsel defense is likely to trigger an implied waiver of the attorney-client privilege—effectively exposing confidential communications with counsel to discovery.  The rationale is simple: a defendant who claims a good-faith belief in the lawfulness of their conduct necessarily places at issue the communications that shaped that belief.

The U.S. Supreme Court has several highly contentious matters under consideration, or soon to be argued, including whether various presidential executive orders can survive separation-of-powers analysis.

Yesterday, however, the Court began the flow of this term’s decisions with two per curiam opinions (that is, unsigned rulings of a unanimous Court) that reached easily predictable conclusions.

That is not to say that these decisions are unimportant. Indeed, for those of us who, if only occasionally, defend criminal cases, the two decisions provide useful procedural advice. Given the tenor of recent arguments, though, this term’s early harmony is unlikely to last. So, let’s revel in the peace of the day.

New episode of our video podcast, Speaking of Litigation: This Veterans Day, Speaking of Litigation brings you a special episode featuring Epstein Becker Green attorneys Stuart Gerson, Jack Fernandez, Ron Green, and Ken Kelly, who share their unique journeys from military service to impactful legal careers.

Discover how their military experiences shaped their leadership, resilience, and approach to the practice of law. This episode also celebrates the service of the broader Epstein Becker Green community, including employees and their families.

In Summer 2025, the U.S. Court of Appeals for the Sixth Circuit issued a strongly worded decision in In Re: FirstEnergy Corporation (No. 24-3654)—confirming the core concept that internal investigations conducted by counsel and in anticipation of litigation are privileged and protected from disclosure. When securities plaintiffs in the case sweepingly sought all documents “related to the internal investigation,” the district court incorrectly ordered their production. After much legal wrangling, the Sixth Circuit rebuked the district court on August 7, 2025, and reaffirmed in a per curiam opinion filed October 3, 2025. 

The U.S. Court of Appeals for the Eleventh Circuit held in United States ex rel. Sedona Partners LLC v. Able Moving and Storage Inc., No. 22-13340 (11th Cir. Jul. 25, 2025), that while a district court has the discretion to dismiss a relator’s complaint before or once discovery has begun, it may not disregard the allegations of qui tam relators at the motion to dismiss stage solely because those allegations reflect information obtained in discovery.

In September 2025, the U.S. Attorneys’ Office for the Eastern District of Pennsylvania (EDPA) announced that it would be implementing a White-Collar Justice Program to strengthen its white- collar enforcement framework. Among other things, the program will “empower Assistant United States Attorneys to aggressively pursue complex investigations and significant new matters on their own initiative.”

This announcement demonstrates another step in federal districts ramping up their white-collar enforcement efforts while encouraging robust procedures for compliance and self-disclosure. This is a trend several years in the making: in September 2022, then-Deputy Attorney General Lisa Monaco directed U.S. attorneys and others within the DOJ to review their policies on corporate voluntary self-disclosure, and to draft and share a formal written policy to incentivize such self-disclosure, if one was lacking.

The federal Telephone Consumer Protection Act (the “TCPA”), 47 U.S.C. § 227, was enacted in 1991 to protect consumers from unsolicited telemarketing calls, faxes, and now text messages.  For businesses that engage in telemarketing, the TCPA poses significant legal risk for noncompliance.  The TCPA's strict regulations and severe financial penalties mean that even inadvertent violations can lead to substantial fines and costly class-action lawsuits.

Adding more compliance risk to telemarketers, Texas enacted its own TCPA (known as the Texas “mini-TCPA”) in 2009 to further protect the privacy of Texas residents by imposing more requirements on businesses engaged in telemarketing activities in Texas and by implementing more robust enforcement mechanisms.