Commercial Litigation and Liability

The litigation chain continues

Those who thought that litigation dealing with the fallout from the financial crisis had reached its peak were mistaken. Even though large D&O disputes, such as HSH, SachsenLB and BayernLB, have been wrapped up for the most part, other proceedings are only just picking up speed, as shown by the cross-border proceedings involving Hypo Alpe Adria (today Heta) before the courts in Munich, Frankfurt and Vienna.

The Neubürger ruling by Munich Regional Court (Landgericht) left behind great uncertainty for many companies in terms of organizing compliance structures. On top of actual breaches of contractual duties by company directors, they are now facing inspections of potential compliance infringements more often. The coexistence of criminal and civil proceedings is decreasing in relevance somewhat when it comes to suits against former executives and supervisory board members. What is notable in this context, however, is the exponential growth in advisor liability cases against tax advisors, accountants and lawyers, who are being held accountable not only in corporate rescue cases, but also after transactions.

Investment protection also remains a central issue – especially because of the discussion surrounding the Transatlantic Trade and Investment Partnership (TTIP).

Firms still restructuring

Dispute resolution practices are reacting to the current market with two opposing trends: large outfits are emphasizing interdisciplinary competences, so as to cultivate complex and lucrative cases. Small firms, on the other hand, are pursuing highly specialized work and capitalizing on the commercial conflicts of interest faced by large firms.

Among the large-firm litigation practices, DLA Piper, Clifford Chance and Noerr are leading the way when it comes to tapping synergies between criminal and civil law expertise. Freshfields Bruckhaus Deringer is also taken as a role model by many, as it is demonstrating how criminal law expertise can be integrated into a large team, with its hiring of a lateral from the judiciary.

Boutiques thriving

Other firms also set about sharpening their practice focus, as Noerr had already done: Luther and CMS Hasche Sigle are streamlining their previously widespread competencies within one practice. Firms are demanding higher quality from their lawyers in the hope that this will lead to a specialized practice generating higher quality work and higher fees.

At the same time, boutiques are thriving. Hanefeld, Borris Hennecke Kneisel, Wach + Meckes and Schmitz & Partner are the underdogs in the market: small, agile and highly specialized, they have gained a substantial share of the market.