USA Trends and Developments Contributed by: Eric Wachter, Jeff McAndrews, Kelly Kimberly and Nedra Pickler, FGS Global
the market, pumping billions of dollars into liti- gation activity and driving up the volume. This further fuels growth in litigation, as more par- ties have access to capital that allows them to file patent, antitrust and other competitor ver- sus competitor lawsuits. Another implication is litigation financing to fund mass torts against companies or even entire industries, as well as responsive legislative and advocacy efforts to restrict such financing. The upshot is more mon- ey coursing through the legal system, enabling more lawsuits to be brought and maintained to and through trial and increasing the odds that any given organisation can become caught up in high-stakes, high-profile and longer-term liti- gation. Backlash against diversity, equity and inclusion (DEI) Following the US Supreme Court’s decision to end affirmative action in higher education, and in response to demands by activist sharehold- ers, there has been a wave of actual or threat- ened litigation, investigations and enforcement, along with other pressure campaigns, taking aim against diversity, equity and inclusion (DEI) initia- tives in the workplace and elsewhere. And that was before the Trump Administration moved to declare DEI effectively illegal across all of Ameri- can society. Several companies and other organ- isations have settled lawsuits or made changes to their DEI policies and programmes, includ- ing dropping, narrowing or rebranding them, to reduce litigation exposure and reputational risk related to “reverse discrimination” charges from the administration or activists. It is expected that these challenges to DEI pro- grammes will continue, with many companies, educational institutions and non-profits left uncertain about next steps and whether their programmes comply with the law. It is no over-
statement to say the controversy over DEI is transforming US business culture and practice. How organisations respond to the competing views and demands of employees, customers, investors, government officials, activists and the general public, while attempting to implement (or modify) their stated values and commitments regarding diversity and inclusion, is a complex challenge that will continue to have a huge impact on legal vulnerability as well as reputa- tional standing and trust among stakeholders. Cybersecurity and AI-driven risk Today, every company is a data company. Busi- nesses’ and organisations’ executives and boards remain increasingly concerned about the continually evolving nature of cybersecu- rity risk and the threat of “digital crises” in gen- eral. When a cybersecurity incident occurs, the method of attack, threat actor and ultimate scope are entirely unpredictable, making cyber- security a particularly costly and inconvenient threat facing enterprises of all kinds. Moreover, between tightening national and international requirements for disclosure of cyber-incidents and increasing interest from mainstream media outlets, particularly in those incidents that affect large, well-known companies and brands, navi- gating cyber crises continues to be a complex, high-stakes event. Preparing for and anticipat- ing the risk of a potential cybersecurity incident is thus critical to maintaining not only business continuity, but also trust and credibility among a company’s most important audiences. Supercharging this area is the growing introduc- tion of generative AI, which complicates the pic- ture, but can ultimately present an opportunity to better manage a highly complex landscape. The use of generative AI by threat actors to pro- duce sophisticated, realistic audio/visual deep- fake content poses a new and distinct level of
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