A Morass in Mass Arbitration

Throughout 2024, we saw several plaintiff-side attorneys aggregating the claims of numerous consumers in an effort to overwhelm corporate respondents with multiple, individual arbitrations. This increase in “mass arbitrations” is likely to continue for at least two significant reasons. First, plaintiffs realize they can use the cost of these mass arbitrations as leverage to broker settlements without having to worry about the strictures of Rule 23. Second, the Ninth Circuit’s decision in Heckman v. Ticketmaster has created significant confusion as to whether companies can rely on certain provisions in arbitration agreements intended to arrest the costs of mass arbitration going forward.

More Prop 65 Litigation

California’s Safe Drinking Water and Toxic Enforcement Act of 1986, known in the vernacular as “Prop 65,” requires businesses to provide a clear and reasonable warning before knowingly and intentionally exposing anyway to a chemical on the Prop 65 list. On December 29, 2023, California added bisphenol S (BPS), an analog of bisphenol A (BPA), to the Prop 65 list. Enforcement commenced December 29, 2024. BPS and other bisphenols are common replacements to BPA, which has been on the Prop 65 list for years. BPS can be found in various consumer products, including sportswear, infant clothing, blankets, food can coatings, nonstick pans, and thermally printed receipts produced at gas stations and cash registers. The addition of BPS to the Prop 65 list is certain to increase Prop 65 litigation, particularly against small businesses, which might not even be aware of the change.

Stop Looking at Me: Privacy Litigation Continues

Privacy-related litigation, especially those involving wiretapping statutes and the federal Video Privacy Protection Act, continued to rise throughout 2024, and it seems unlikely to slow down appreciably in 2025. Courts continue to give mixed decisions on whether decades-old statutes, intended for physical wiretapping equipment, cover the modern-day, ubiquitous tracking pixels used by numerous social media platforms. And where courts say these statutes do not apply, there is always the potential that the legislature will step in to clarify that “yes, they do”—or otherwise craft new statutes that clearly apply.

I Want My Day in Court

Here’s a noncontroversial sentence: COVID had a significant effect on many things. One of those was that the backlog of cases pending increased, while the odds of proceeding to trial decreased. As we approach the five-year anniversary of the worldwide shutdown, we’ve finally started to return to normalcy. Jury trials resumed with a vengeance in 2024, and numerous high-stakes matters resulted in significant jury verdicts, followed by post-trial motion practice regarding those verdicts. We expect that trend to continue. Now that the possibility of proceeding to trial is significantly more pronounced than in the last few years, many plaintiffs will say that’s precisely what they want—either because that’s true (they want their day in court) or because they view the threat of an impending jury trial as leverage in settlement discussions. But defendants don’t seem to be backing down; instead, they too are preparing for trial, either because they are ready to vindicate their own positions or because they see little value in settling at such a late stage. Either way, all signs point to the same thing: more trials in 2025.

Transactions

Show Me the Money Markets

In 2025, we expect that real estate transactions will reflect a mix of opportunities and challenges as economic and market forces continue to evolve. Industrial and multifamily properties will remain in high demand, driven by e-commerce growth and housing shortages, while office and retail sectors adapt to changing work patterns and consumer preferences following the pandemic. Investors will increasingly prioritize ESG-compliant properties, and that will influence investment decisions and transaction terms. In the financing markets, economic stabilization and interest rates normalization should lead to stabilization, but more stringent lending policies may create headwinds on overall deal volume. However, we expect that these factors—coupled with pent-up demand and alternative capital sources—are likely to drive increased activity.