The MoloLamken U.K./U.S. Cross-Border Litigation Summit

From left: MoloLamken partners Steve Molo, Robert Kry, Megan Church, Justin Ellis and counsel Remy Gerbay.

Every year, litigation becomes a more global affair. Complex international disputes pit law firms from different countries against each other, or bring them together against a common adversary. In that environment, it is hard to deny that lawyers across the globe have much they can profitably learn from one another. That holds true even for countries like the United States and the United Kingdom that share common legal roots.

That spirit forms the basis for the U.K./U.S. Cross-Border Litigation Summit, an annual half-day conference hosted in London each summer by the U.S. litigation boutique MoloLamken LLP. Held in Inner Temple’s stately Parliament Chamber, this year’s event on July 3 saw representatives from 17 different law firms discuss emerging trends and cutting-edge issues before an audience of more than 100 solicitors, barristers, U.S. lawyers, and others.

The format is straightforward: For six different topics, a moderator and two or three panelists discuss recent developments in areas that affect both U.K. and U.S. legal practice. The panels bring together English lawyers practicing in London or elsewhere in the United Kingdom, U.S. lawyers practicing in North America, and U.S. expatriates at global firms abroad.  The firms those lawyers represent run the gamut from litigation boutiques to global powerhouses.

That diversity ensures that the panels provide informative insights for practitioners in all areas.  The event’s short duration and “no powerpoints” rule keep the presentations fast-paced and engaging. The goal is to expose U.S. lawyers to a U.K. perspective and vice versa, illuminating both the similarities and differences in grappling with common problems and opportunities.

Selecting topics is key. In many instances, the selections are driven by the latest developments. This year, for example, the summit coincided with arguments before the Court of Appeal of England and Wales in Serious Fraud Office v. Eurasian Natural Resources Corp., a landmark case concerning the scope of U.K. litigation privilege for a company’s internal investigations.

That topic was a natural fit for the summit. Not only is legal privilege and work product protection an important topic for lawyers on both sides of the Atlantic, it is also one with inherently international ramifications. If a court in England orders documents disclosed, it may be difficult to shield them in parallel U.S. proceedings. Panelists not only offered their perspectives on the Eurasian proceedings and speculated about how the Court of Appeal may rule, but also compared the English approach with the corresponding U.S. doctrine and discussed effective ways to preserve or attack privilege in an interconnected legal environment.

Collective actions were a topic in both this year’s event and the inaugural event last year. Many claims are too small to be worth pursuing on an individual basis – a reality no less true in England than in the United States. Yet the two countries diverge dramatically in how they address that problem. Opt-out class actions have been a fixture of American law for decades.  But they are largely unknown in England, where courts normally require individual consent before claimants may pursue relief on a collective basis.

The same essential conduct might give rise to claims in both countries – as has been the case with actions against Volkswagen alleging emissions-testing fraud. That litigation formed an interesting point of reference for discussing the complications that arise under either country’s approach, like disputes over which law firm or plaintiff should be appointed to spearhead the litigation.

A related topic this year was data breach litigation. Lawsuits over improper disclosures of confidential customer data are already common in the United States, thanks largely to the class-action device. Massive data breaches like the one at Equifax have allowed U.S. lawyers to explore novel and complex issues such as the appropriate measure of damages in an area where many injuries may be too speculative to quantify.

The absence of opt-out class actions has not posed an insuperable bar to data breach suits in the United Kingdom. Just this past year, the High Court ruled in favor of more than five thousand employees who sued Morrison’s Supermarket after an employee illicitly published their personal data – a groundbreaking data-breach suit in that country. The solicitor who brought that case was one of the panelists at this year’s summit, and he provided unique insights from a U.K. perspective. Meanwhile, a U.S. panelist discussed the issues that data breach suits encounter in the United States – and may yet encounter in this nascent field of U.K. litigation.

On another panel, leading arbitration lawyers weighed in on investment treaty arbitration, discussing a recent decision on bilateral investment treaties among EU member states as well as dispute settlement under the North American Free Trade Agreement. Another panel addressed sovereign immunity, highlighting both recent statutory developments in the United States as well as decisions in both countries concerning asset discovery and seizure. Those topics are particularly relevant for a cross-border audience, given that asset recovery often involves parallel proceedings in multiple countries.

Finally, the summit concluded with an engaging panel on social media in litigation.  Practitioners described the state of the law on defamation, the use of social media for service of process, and the availability of discovery into private content.

Audience members appreciated both the insightful presentations as well as the opportunity to meet other practitioners from the United States and the United Kingdom during the breakfast that preceded and the light luncheon that followed the panels. MoloLamken looks forward to continuing the tradition it has now established at Inner Temple. Plans for next year’s summit are already underway, and while it is too soon to make any firm predictions over the topics that will be covered, there will surely be no shortage of areas were American and British lawyers can learn from one another and forge productive relationships.

About MoloLamken LLP: MoloLamken provides experienced advocacy – for plaintiffs and defendants – before juries, judges, arbitral forums, and appellate courts, including the U.S. Supreme Court.  The firm’s international client base includes leading corporations, hedge funds, private equity firms, investors, inventors, executives and foreign sovereigns.  With offices in New York, Chicago, and Washington, D.C., MoloLamken is involved in some of the most significant litigation pending in the U.S. courts today. The firm is a founding sponsor of the upcoming Lawdragon 500 Global Dispute Resolution Guide.