From the concussion-related injury suits in the NFL to the Affordable Care Act, the Litigation Forecast 2014 provides a comprehensive coverage of several different industries, illustrating the impact that complex litigation has on the business world.

Click through the following slides for an overview of some of the biggest litigation trends for 2014.

For more details on legislation, upcoming cases, and regulatory impacts, read the full report on Crowell & Moring's website.

Health Care – Legislation driven change sets the stage for litigation

It is no surprise that the Affordable Care Act is a major driver of litigation. In order to take advantage of the increased federal funding and to keep costs down, some states have expanded eligibility for their managed care programs, presenting an appealing opportunity for health plans as many moved into the Medicaid managed care business.

For these states, the transition has not been easy, with some facing financial problems as a result. Some plans have been forced to exercise early termination rights arising from arrangements made with states based on disputes concerning the state's accuracy in claims data when they bid on the business.

Christopher Flynn, Crowell & Moring partner says that understanding the expanding Medicaid market is imperative to avoid future losses. The states need to work with plans to create agreements based on mutual success.

Additionally, the federal Mental Health Parity and Addiction Equity Act of 2008, and several similar state laws subsequently enacted, will impact the health care industry. These laws call for similar insurance coverage for medical treatments and behavioral treatments, including counseling and psychiatric treatments. However, this is not as clear as it seems. For example, if an insurance plan allows an unlimited number of visits concerning a broken leg, does it also need to allow unlimited visits for the treatment of depression?

“The trick lies in determining what's comparable from the medical health side to the behavioral health side because, in reality, they don't always line up so neatly,” said Flynn.

“Some advocacy groups argue that utilization review leads to coverage that is too restrictive for behavioral treatments compared to general medical treatments, and are therefore unlawful. But utilization review is an accepted part of modern-day health care, and is often mandated by employer groups because it helps ensure that members receive appropriate medical care. So there's a lot at stake here.”

Financial Services – State courts: the new M&A battleground

Merger and acquisition activity has increased significantly over the last few years, resulting in a growth of a new “cottage industry,” whose practitioners file class action lawsuits that serve to delay every deal involving a public company. As a result, this has become a commonplace issue that bankers and lawyers who arrange the deals have to expect.

Smaller class action firms that once focused on securities litigation in federal courts are filing strike suits in state courts after almost every merger involving a public company is announced because federal procedures have made it difficult for smaller firms to get lead counsel appointments in these cases.

“These firms routinely post trolling notices on the Internet within hours or even minutes after an M&A deal is announced,” said Crowell & Moring partner Edwin Baum. “They then race to file putative class actions in state courts. In essentially cookie-cutter fashion, they assert state-law breach-of-fiduciary-duty claims, typically claiming that the sale process was deficient, the proxy disclosures are inadequate or misleading, and the agreed share price is inadequate.”

It is not uncommon for merging companies to face multiple suits in several states because of these practices. Cases are generally settled quickly to avoid delaying the closed deal.

“There is usually no change in the deal price or in any cash payments made to the putative shareholder class. These suits have become a virtual private 'tax' on public company M&A deals,” said Baum.

Energy – New Generation: Who decides what, where and when to build?

In the past, the division of authority between state and federal regulators in the electric utility industry was clear. The states would authorize the construction of power plants within their borders and regulated retail rates, while the Federal Energy Regulatory Commission regulated wholesale rates.

But with the industry restructuring and the wholesale capacity markets overseen by the federal government evolving, some wonder whether the resource planning by state regulators could be replaced by a market-based system, where price signals drive developers to construct new plants.

“In reality, nothing new was being built, or if it was, it was a pitifully small amount of capacity compared to what would be needed to replace generating units that were going to be retired,” said Larry Eisenstat, partner in Crowell & Moring's Environment, Energy & Resources group.

Subsequently, a number of states required utilities to enter into long term contracts with power plant developers in order to give incentives for the construction of new generation, which has also prompted lawsuits from utilities and existing power generators challenging the states' authority.

“The question is, do states have the authority to require their jurisdictional utilities to build generation capacity when they see a need, be it for reliability, policy, or other reasons, even if a FERC-overseen capacity marketplace might not be recognizing that need,” said Eisenstat.

Two recent cases were recently decided by federal district courts, partially siding with the utilities and existing generators, saying that the activity of the states was unconstitutional. After appeal, however, these cases will ultimately make their way to the Supreme Court.

“The outcome of these suits might well lead to the development of new ground rules for how a state may encourage the development of the power generation resources it believes it needs within or near its borders, and whether the states are permitted to treat different types of power differently,” Eisenstat said.

E-discovery – TAR enters the mainstream

Technology Assisted Review (TAR), also known as “predictive coding,” uses computer analytics to identify the patterns of words and phrases in documents to analyze the content, which provides a richer assessment of documents than more traditional e-discovery methods. For lawyers, this means having the ability to sharpen its focus on documents to specific topics.

In Crowell & Moring's experience, the accuracy rate in identifying relevant documents is as high as 95 percent, requiring less effort and cost. The court's view of TAR has evolved, with a growing number finding its use acceptable, compared to several years ago when parties were concerned that the cost of defending the use of TAR would outweigh the savings, or it would just be rejected by the courts.

“Concerns have largely disappeared. Courts are being more diligent about requiring parties to confer on the issues related to the discovery process. Because of that we're seeing parties reaching agreements on the use of TAR, including the processes for validating results,” said Jeane Thomas, co-chair of Crowell & Moring's E-discovery and Information Management group.

Insurance/Reinsurance – Burgeoning concussion lawsuits and changing principles

With the highly-publicized lawsuits involving former NFL players and traumatic brain injury, concussion lawsuits have taken center stage. In August, the NFL announced a $765 million settlement, which if approved, would resolve the claims of thousands of retired players. But these suits have also raised a number of insurance coverage issues, leading the NFL and its insurers to file competing coverage actions.

“There will undoubtedly be a need to address the serious coverage issues related to the lawsuits against the NFL,” said Jennifer Devery, partner in Crowell & Moring's Insurance/Reinsurance group.

Similar cases have been filed against the NCAA as well as the NHL, and subsequently, individual lawsuits have been filed against Pop Warner football, school districts and high school coaches, helmet manufacturers and more.

“While the concussion-related lawsuits have resulted in a great deal of recent public interest given the nature of the allegations and the parties involved, potential coverage disputes are likely to require the attention of insurers and policyholders,” Devery said. Advertising – False Advertising: Injunction rules get tougher, and the stakes get higher

More class action firms are shifting their focus from products liability to false advertising litigation, which is simpler and less expensive in most cases. These firms are on the lookout for false advertising, and companies know it.

“Today, if you file a false advertising claim, you are almost certainly going to get a counterclaim,” said Christopher Cole of Crowell & Moring's Advertising & Product Risk Management group. “If you lose on the counterclaim, you know you're going to get sued in a consumer class action.”

Because of this, some companies are reconsidering their situation before getting involved. But as false advertising claims still make their way to the courts, the rules of injunction have been changing. Traditionally, plaintiffs in false advertising cases did not need to prove harm to get an injunction, but in recent cases, plaintiffs are required to provide evidence of harm to get the injunction, which can be difficult considering proving specific harm from an advertisement may require surveying customers to see if the advertising has affected their purchases.

White Collar – Challenges from the inside and overseas

The Dodd-Frank Act gave authorization to the SEC to reward whistleblowers who provide information that leads to successful enforcement actions. Within the last year, the SEC has increased its activity in this area, and in October, it announced more than $14 million in an investment fraud case—the largest whistleblower payout to date. According to Crowell & Moring, actions like this could become increasingly familiar.

As cases are resolved, the media generates increased awareness of the program and its large rewards among corporate employees.

“We are seeing concerted efforts by the plaintiffs' bar to drum up SEC whistleblower cases, including cold-calling employees at large financial services companies, broker-dealers and other enterprises that operate in high risk environments. So momentum for these cases is likely to increase in 2014,” said Stephen Byers, partner in Crowell & Moring's White Collar and Regulatory Enforcement group.

Under the Dodd-Frank Act, whistleblower complaints can proceed directly to federal courts instead of having to go through an administrative proceeding first. And now, the SEC itself can initiate retaliation suits of its own, scrutinizing employment severance and settlement agreements that make it difficult for whistleblowers to report problems.

Trade Secrets – Potential New Laws and New Risks

Trade secret fraud has become an increasingly high profile issue, resulting in new legislation. The Private Right of Action Against Theft of Trade Secrets Act of 2013 would allow anyone who suffers injury as a result of violation of the Economic Espionage Act to seek damages, adding a civil cause of action to the existing criminal law.

“That would give companies a new arrow in the quiver in the fight against trade secret theft,” said Mark Romeo of the Litigation and Labor & Employment groups at Crowell & Moring.

Other bills would target cyber theft by foreign entities. The Cyber Economic Espionage Accountability Act would create immigration and financial penalties for individuals involved in cyber espionage. This would mean that foreign officials and agents engaged in espionage would be ineligible for a U.S. visa and would be at risk of having their U.S. assets frozen. The Deter Cyber Theft Act would require a similar approach, requiring the director of National Intelligence to compile a list of countries engaged in cyber espionage and the U.S. intellectual property being misappropriated or targeted by foreign entities.

Additionally, the U.S. Attorney's office is willing to work with U.S. companies to pursue foreign trade thieves, and Congress has proposed a bill, SECURE IT (Strengthening and Enhancing Cybersecurity by Using Research, Education, Information and Technology).

“This fits with the idea that government and business should be more collaborative in protecting against trade secret theft by foreign governments or entities,” said Romeo.

Tax – New Truces and New Battle Lines

According to Don Griswold of Crowell & Moring's Tax group, there is an increasing lack of trust for the corporations.

“As the taxpayer pendulum swings away from creativity toward more conservative positions, the government pendulum continues to swing the other way, reflecting a continuing mistrust of the corporate community,” Griswold said.

This shift has a number of consequences. Penalties are getting tougher, and the IRS has accelerated its audit processes, partly to expand its window into evolving taxpayer strategies, and partly to avoid allowing the statute of limitations to run out. The IRS announced a new enforcement policy for taxpayers who fail to respond promptly to Informational Document Requests during inquiry. Now, taxpayers can work with the IRS to set initial response deadlines, but if those deadlines are missed, the taxpayers will be subject to a new enforcement procedure that may culminate in a summons.

“These matters previously could be handled within the company's tax department, but now they require closer collaboration with the legal department,” Griswold said.