USA Trends and Developments Contributed by: Ronald R. Rossi, Daniel J. Koevary, Jonathan L. Shapiro and Matthew B. Stein, Kasowitz LLP
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How Three Disparate Trends in Commercial Litigation Are Reconfiguring the Legal and Regulatory Environment in the USA In 2025, commercial litigation trends have evolved to reshape the legal and regulatory environment. Com- panies face growing exposure to the regulatory state, whiplash in ESG compliance, increasing cybersecurity risk, data privacy issues, IP challenges, and ever-more opportunistic plaintiff attorneys combing massive data sets armed with AI pattern recognition tools and analytics. This article focuses on three disparate areas where change in 2025 has been manifest: • AI as a tool to enhance litigation efficiency; • the ongoing battle over circumscribing non-com- pete agreements; and • the use of selective creditor incentives in Chapter 11 restructurings. This year, AI tools are being integrated into commer- cial litigation practices with rocket-like velocity. Law firms and in-house teams are widely adopting AI for tasks such as e-discovery, legal research, contract analysis, drafting pleadings, summarising depositions, and managing complex document sets. This article discusses the benefits, limitations and pitfalls these tools present. 2025 has also brought the emergence of notable trends around the Federal Trade Commission (FTC)’s effort to treat non-competes as unfair methods of competition, even as its attempt at a blanket ban has been rolled back. Likewise, in 2025 – and as shall be discussed in more detail − bankruptcy courts have
increasingly signalled a tightening of the rules around selective creditor incentives in Chapter 11 restructur- ings. By discussing these disparate areas of the law, and the shifting landscape seen in US litigation, the authors hope this article serves to illustrate that litigators need to constantly adapt or risk being left behind. Generative AI in commercial litigation: useful, but not yet transformative Three years after ChatGPT’s public debut, genera- tive artificial intelligence (“GenAI”) has become part of some litigators’ toolkits. Many large firms now use some form of AI-assisted research or drafting software and vendors are integrating GenAI into e-discovery platforms and case management systems. The tech- nology’s arrival sparked widespread predictions about disruptions across white-collar professions, including the legal industry. The result has been less dramatic: a steady evolution marked by efficiency gains in routine work, not transformation. Practical uses with real impact In commercial litigation, GenAI has proven useful in several areas. Discovery teams use GenAI to organ- ise large data sets, cluster related documents, and identify patterns and key documents that might oth- erwise take significant time to detect. In deposition and trial preparation, GenAI can summarise lengthy transcripts, extract key testimony, and flag inconsist- encies across witnesses. These tools can also help litigators develop timelines and factual summaries.
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