The International Lawfirm of Fulbright & Jaworski recently released their 6^th Annual Litigation Trends Survey (“Survey”), which detailed the responses from senior corporate counsel at 276 U.S. and 125 U.K. firms across various industries.

According to the Survey, the number of companies reporting corruption/bribery investigations over the last year nearly doubled (from 7% in 2008 to 12% in 2009), corroborating DOJ’s frequently repeated cautions of their own increased enforcement activity in this area.  If this corporate trend follows what DOJ and the SEC are saying this year, we can expect another doubling or more of companies reporting this sort of investigation next year.  Also, despite the economy, the Survey found an increase in entities conducting proactive due diligence in the riskiest corruption & bribery areas (from 7% to 18% among US companies), most notably M&A.

Another area of significant increased enforcement activity was in export/import sanctions (ITAR, OFAC, etc.).  The Survey found that 13% of their respondents reported working with outside counsel in undertaking such an investigation in the last year.  As it related to publicly-held and the largest companies responding to their Survey, the percentage was 17%.  This too follows a marked increase in enforcement activity in this area that began with the formation of the “Export Enforcement Initiative” in October of 2007.  Given that the task forces formed as part of that initiative are only 18 months young and not yet the well-oiled machine that DOJ’s FCPA team is, you can bet what’s left of your 401K that this Survey statistic will increase significantly next year.  Interestingly enough, though it was not a part of this Survey, over the course of 2009 I have found that proactive work in this area lagging.  Expect that to increase too, much like in FCPA matters, as the increasing enforcement trend continues and the pain of penalties (which were increased five-fold in October 2007) begins to be felt.

As it relates to internal investigations, the Survey found a decrease in the number of respondents using external counsel to conduct internal investigations, surmising that much of this work may be taken on in-house.  To the extent that they did engage external counsel, they ended up reporting the matter to a regulatory agency 33% of the time.  Overwhelmingly, respondents expected an increase in internal investigations over the next year.

Other highlights of the Survey include:

-         An increase in dispute activity over the next year;

-         Over 33% of respondents increased their use of alternative fee arrangements;

-         About 40% of respondents found an increase in wage& hour, multi-plaintiff and employment matters compared to last year;

-         Bankruptcy, class-action lawsuits and regulatory actions all increased this year and;

-         Nearly 25% of public companies and those with revenues over $1B expect more international arbitrations.

You can get a copy of this Survey from Fulbright using the following link: http://www.fulbright.com/litigationtrends12