The Mass Arbitration Morass Continues

Throughout 2025, 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 as 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.

In response, many companies are implementing mass arbitration-specific rules in their arbitration agreements--a trend we expect to continue. Similarly, most arbitration providers are amending their own rules to account for such mass arbitrations.

Artificial Intelligence to the Forefront

Issues surrounding the use of artificial intelligence in litigation are likely to come even further to the front. We anticipate we will continue to see sanctions motions for the sloppy use of AI, but we also anticipate that several aspects of artificial intelligence will go on trial--from the use of AI in directing internet traffic to the use of AI to create intellectual property.

Hey, quick question: If you use an AI engine to create a picture, who owns the copyright? You? The AI? The creater of the AI engine? Some combination? The crystal ball remains hazy, but in 2026, we might finally get a better answer.

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 2025, and it seems unlikely to slow down appreciably in 2026...unless DTO can put a stop to at least some of them. 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. But a petition for writ of mandate crafted by DTO lawyers has been taken up by the California Second Appellate District. If the relief sought is granted, it could put an end to CIPA litigation attacking the use of tracking pixels.

Marketing Emails Under Scrutiny

In 2025, we saw a notable rise in litigation targeting marketing email practices—particularly under state “Anti‑Spam” statutes. A recent Washington Supreme Court decision significantly broadened exposure by effectively imposing strict liability for any potentially false or misleading statement in an email subject line under Washington’s Commercial Electronic Mail Act (CEMA).

Importantly, the Court held that clarifying language in the body of the email does not cure a misleading subject line, and plaintiffs need not show actual harm to pursue a claim. This ruling has emboldened the plaintiffs’ bar, leading to a surge of putative class actions in Washington and California, among other states with analogous Anti-Spam statutes.

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.