In the criminal trial of Atlanta rapper “Young Thug,” the prosecution introduced lyrics from the defendant’s songs as evidence to support claims of knowledge, intent, and motive, begging several questions: Are lyrics admissible under the rules of evidence? Are lyrics still a “statement” when contained in an artwork? To what extent does prejudice outweigh relevance, and how is that measured? White-collar trial lawyer Jack Sharman will address the implications of these questions for both the defendant and the criminal prosecution or civil plaintiff.

Mass arbitrations – where plaintiffs’ firms organize claimants to bring tens of thousands of arbitrations against companies with arbitration provisions and class action waivers in their consumer terms-of-use agreements – are on the rise. In this session, Smith Gambrell Russell’s Kathy Ehrhart explores defense tactics, how to assess the merit of claims, discovery strategies, and what companies can do to mitigate the risk of facing mass arbitrations.

The plaintiff’s bar is moving away from the reptile theory –  an emotional, fear-based approach where attorneys ask the jury to put themselves in the injured plaintiff’s shoes – and toward “strict compliance,” focusing instead on company conduct and internal violations to sway jurors in their favor. In this session, Wheeler Trigg O’Donnell’s Marissa Ronk explores this emerging trend and provides strategies for corporate defendants to manage this new approach.

Climate change litigation in the United States has proliferated in recent years, stemming from a myriad of sources, including the continued use of fossil fuels around the world. Mark Clark from Texas member Parsons McEntire McCleary will explore the challenges to prove liability, causation, and damages in mass climate change litigation. He will also discuss how plaintiffs’ lawyers are approaching climate change litigation to change long-held tort law concepts, shift the paradigm of cause and effect, and win for plaintiffs at significant costs to corporate defendants.

The National Labor Relations Board has declared broadly worded confidentiality, non-disclosure, and non-disparagement clauses unlawful in severance agreements with employees, leaving employers with little guidance on the extent to which they can restrict departing employees from disclosing separation terms and how employers should update their severance agreement templates. Nikki Nesbitt from Maryland member Goodell DeVries will walk you through the policy justification for these new prohibitions as well as the linguistic pitfalls and semantic safe zones for your revised agreements.

Are you wondering how to formulate an effective strategy for restrictive covenant use and enforcement in the face of the rapidly evolving legal landscape? Are you frustrated by inconsistent state laws on non-competition and non-solicitation covenants? This panel of experienced in-house and outside counsel will discuss the latest trends and best practices for using restrictive covenants and other legal tools to protect what matters most – your company’s talent, confidential information, and customer relationships.

Panelists:
Bruce Batista – Sherwin-Williams
Scot Elder – Treace Medical Concepts
Jeremy Glassford – EPIC Insurance Brokers
Sherin Sakr – WellBiz Brands

Trade secret litigation is on the rise. Since the Federal Circuit clamped down on excessive patent damages awards, states updated trade secrets laws to the Uniform Trade Secrets Act, and Congress passed the federal Defend Trade Secrets Act, plaintiffs have increasingly turned to trade secrets as a means of pursuing IP claims. In this breakout, in-house and outside counsel will explore developments in trade secrets law; ways to favorably shape future regulations; and strategies to mitigate risk, respond to post-separation demands, and achieve favorable litigation outcomes.

Discussion Leader:
Ken Mathieu – Berkeley Research Group

Reviewing the relevance, risks, and consequences of certain contract terms can dramatically reduce the risk of conflict and litigation. Drawing on decades of experience handling contract disputes, Christian & Barton’s David Harless will review the Top 10 contractual terms that result in conflict and litigation, including arbitration, indemnification, and restrictive covenants, and will discuss strategies for crafting those provisions to minimize the potential for disputes.

Discussion Leader:
Lee Hollis – Lightfoot Franklin & White
Katie Reilly – Wheeler Trigg O’Donnell
Tony Rospert – Thompson Hine
Amy Sorenson – Snell & Wilmer

Why don’t in-house counsel run bi-weekly calls to review outside counsel’s progress on their action items? Who says the decision-maker should stay in the room during a mediation? In this breakout, session leaders share how they have embraced unconventional roles for clients and share their tips for a smoother ride.

Discussion Leader:
Christallyn Williams – Sigma Aldrich
Tina Wills – Smith Gambrell Russell

Data breaches and ransomware attacks continue to be a pressing issue for in-house counsel. This breakout session will equip participants to identify the extent of a breach or impact of a cyberattack; explore best practices for response strategies; cover legal and notice obligations; and provide tips for mitigating the risk and impact of future attacks.

Discussion Leader:
Greg Marshall – Snell & Wilmer

A clever plaintiffs’ lawyer can make a federal case out of anything – or nothing – literally. Unfortunately, courts often allow no-injury cases to proceed past pleadings, into discovery, and even past certification. This session highlights the trend of no-injury class actions, explains how the courts are responding, and provides practical tools for bucking the trend.

As the line between personal and professional social media becomes blurrier and the digital landscape continues to evolve, it is imperative for lawyers to consider ethical issues arising from their social media presence. In this presentation, David Atkinson from Swift Currie will examine considerations for commenting on pending (or potential) litigation; confidentiality issues; advertising regulations; implications of social network connections; and best practices for nonlawyers, in-house lawyers, and their staff.

Preserving attorney-client privilege and navigating the common-interest doctrine are essential litigation skills. In this important presentation, Sandberg Phoenix attorney Katrina Smeltzer will discuss practical considerations for preserving the attorney-client privilege, including when it is most vulnerable and when it should be exercised. She will also explore the common interest doctrine in both co-defendant and affiliated corporate settings, including its application, limitations, and strategic considerations.

When it comes to the strategic use of deception in settlement negotiations, how far can a lawyer go to achieve client goals? Tony Rospert from Ohio member Thompson Hine will consider the ethical dilemma trial lawyers face between their obligation to be fair and truthful and the use of deception to mask their client’s true settlement position.

Strict products liability has expanded to include online platforms and digital marketplaces that help connect businesses with potential customers. In deciding to revise the definition of “product seller” to include new categories of defendants, courts have applied factors that pre-date – by several decades – the applicable technologies. These factors are not only outdated, but they are also heavily weighted against defendants. In this presentation, Steve Finley from Pennsylvania member, Gibbons, argues that it is time to develop a new framework for strict products liability, better define “product seller,” and protect against further expansion of strict liability.

The False Claims Act imposes liability on those who defraud the government by submitting false information to secure payment from government programs. The False Claims Act also counts as fraud the failure to fulfill an obligation to the government by withholding truthful information, known as “reverse false claims.” Panelists in this session will identify those instances when neglecting government payments and holding onto mistaken government overpayments falls under the False Claims Act, as well as reveal how to mitigate liability.

Panelists:
Brandon Essig – Lightfoot Franklin & White
J.B. Perrine – Huntington Ingalls Industries
Jack Sharman – Lightfoot Franklin & White

The evidentiary rule governing admissibility of expert testimony in federal court – Federal Rule of Evidence 702 – was amended effective December 1, 2023, to clarify how judges, as gatekeepers, should rule on expert admissibility issues. This breakout will provide an overview of those recent changes and the relevant case law, as well as best practices for leveraging Rule 702 in litigation.

Discussion Leader:
Ken Mathieu – Berkeley Research Group
Derek Stikeleather – Goodell DeVries Leech & Dann

When in-house and outside counsel’s approaches to litigation management are in sync, matters proceed more efficiently, potentially saving the client time, money, and a lot of headaches. Drawing from recent trials and decades of experience, Porzio’s Vito Gagliardi will share best practices for establishing and maintaining this partnership from the initial case assessment through post-trial, including how to stay aligned through the most stressful aspects of trial.

Discussion Leaders:
Jeremy Glassford – EPIC Insurance Brokers
Cammy Kennedy – DR Horton
Maureen Middleton – Primerica
Charlotte Ritz – Fannie Mae
Jennifer Sova – Amazon
Tiffanee Wade-Henderson – International Paper
Kerri Wright – Porzio Bromberg & Newman

Staying abreast of the latest changes to employment regulations and monitoring litigation trends can help employers identify and correct problems before plaintiffs’ attorneys come knocking. In this breakout, Lauren Fisher White will explore changes to equal pay, independent contractor, and non-competition regulations, and provide proactive strategies to mitigate litigation risk, such as pay audits and critical updates to handbooks and contract templates.

Discussion Leader:
Bruce Batista – Sherwin-Williams
Tina Wills – Smith Gambrell Russell

The jury pool is evolving: jurors today are increasingly angry and untrusting, strongly risk-averse, and less prone to compromise. Safetyism – a series of thought fallacies – appears to be a key culprit in these shifts, which are driving an uptick in “nuclear verdict” frequency and dollar amounts. In this session, breakout leaders will examine independent research supporting these troubling trends and provide solutions for voir dire, jury selection, and themes to counter the risk of nuclear verdicts.

Discussion Leader:
Jill Leibold – IMS Consulting
Greg Marshall – Snell & Wilmer
Jennifer White – Volkswagen