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Exploring the Affect of the Pandemic on Litigation in Federal District Courts (January by way of October 2020)

While a drop-off in activity is expected as the COVID-19 pandemic continues to affect our daily lives, various factors have proven to be significant in affecting activity in a specific practice area or stage of litigation.

Lex Machina monitors and reports on how courts are affected by the social changes due to the COVID-19 (coronavirus) pandemic through our COVID-19 blog posts, the COVID-19 Impact Analyzer App that is publicly accessible, and in-product case tagging for litigation caused by COVID-19. 

As the year is winding down, we can start to see a comprehensive picture of litigation activity throughout 2020. We looked at the first 10 months of the year to understand trends at different points during the pandemic. Much of this blog post compares activity in January through October with the same months in 2018 and 2019, in order to get an understanding of what has changed. 

Our analysis of federal district court activity revealed the following: 

  • Overall case filings (excluding Product Liability cases) for the first 10 months of 2020 were down 10% from 2019. Looking at only March through October, case filings were down 12% in 2019 compared to 2020.
  • May had the biggest drop-off in case filings. Case filings were 26% lower in May 2020 than May 2019.
  • Insurance, Patent, Securities, and Contracts all saw increases in 2020 case filings compared to 2019. While Insurance, Securities, and Contracts saw cases filed in direct response to the pandemic, Patent cases likely increased for a few reasons discussed in the second section below. 
  • Copyright, Bankruptcy, and Torts saw the biggest decrease in case filings in 2019 compared to 2020. However, we expect more pandemic-related Bankruptcy and Torts cases to make their way into federal court in the coming years.
  • The number of cases with findings were down in every judgment event in 2020 compared to the previous two years.
  • Trials plummeted in 2020 as there were only 477 findings at trial this year versus 980 findings at trial in 2019 (a 51% drop). 

This blog post specifically focuses on litigation activity in civil trial courts of the United States federal district court system. We compared court activity in January through October of 2018, 2019, and 2020. 

Case Filings by Month

The first figure below shows monthly case filings in federal district court for 2018, 2019, and 2020, excluding Product Liability filings. Product Liability filings are not included because multidistrict litigation in that area would skew the data, but they are included in the next section. The second figure is a table that includes the case filings for each month and the percent change from the previous year.

As expected, January and February began on par with previous years. Then case filings dropped in March through May with only 11,643 case filings in May 2020, a vast difference from previous years. Case filings were 26% lower in May 2020 compared to May 2019. Cases began to increase in June and reached similar numbers to previous years in July and September. However, case filings are down again in October compared to previous years. 

Overall case filings for the first 10 months of 2020 were down 10% from 2019. Looking at only March through October, case filings are down 12% in 2019 compared to 2020.

Total Federal District Court Case Filings (Excluding Product Liability*) By Month 

Total Federal District Court case filings by month; chart courtesy of Lex Machina.

Case Filings With Percent Changes (Excluding Product Liability*) by Month

Case filings with percent changes; chart courtesy of Lex Machina.Case filings with percent changes; chart courtesy of Lex Machina.

Case Filings by Practice Area

While case filings excluding Product Liability are down 10% overall, different practice areas fared differently over the last 10 months. As discussed, a large MDL case set in Product Liability concerning ear plugs used in the military resulted in a 387% increase in case filings between 2019 and 2020. While no other practice area had a major increase, a few practice areas did have increases over 2019. 

Insurance had a 15% increase likely due to business interruption cases as a result of pandemic-related shutdowns. In January through October of 2020, 1,394 business interruption cases were filed versus just 417 in the same time period in 2019. The majority of those (963) were filed in response to the pandemic. 

Other increases include Patent cases (15%), Securities cases (5%), and Contracts cases (3%). While Securities and Contracts have a significant number of cases attributable to COVID-19, Patent cases may have increased for a few reasons. Cases have increased in the Western District of Texas as it has plaintiff-friendly patent rules that increase speed of case and delay 101 invalidity findings. Additionally, patent owners may be reevaluating their portfolios this year due to increased patent fees and the economic downturn, which may have led to increased conflict over valuable patents. 

Copyright had the biggest drop-off in case filings with a 37% decrease compared to 2019. Large numbers of Copyright cases are filed by a small number of companies in file-sharing cases (claims of infringement for BitTorrent/P2P file sharing brought against anonymous John Doe defendants or anonymous defendants’ IP addresses). These cases specifically dropped off in the first two quarters of the year. 

Lex Machina tracks cases in federal district courts, and Bankruptcy cases decreased 29% since 2019. We expect to see more Bankruptcy litigation make its way to federal court as a result of the pandemic in the coming years. Torts cases decreased 28% compared to 2019, but were more on par with the number of Torts cases filed in 2018. This pattern may be due to a large number of related cases filed in 2019 surrounding the opiate epidemic. Pandemic-related Torts cases may make their way into federal court as they get closer to the statute of limitations or cases are removed.

Case Filing by Practice Area Including Percent Changes

Case filings by practice area including percent changes; data courtesy of Lex Machina.Case filings by practice area including percent changes; data courtesy of Lex Machina.

Year-to-Date Findings Activity

The following bar graphs, from Lex Machina’s COVID-19 Impact Analyzer App, show the number of cases with a finding in the listed judgment event occurring in 2018, 2019, and 2020. Specifically, this data differs from the data above because it includes January 1st through November 8th for each of the years at issue. Findings are court-enforceable determinations such as “Infringement” or “No Breach of Contract.” Lex Machina tracks findings for our 16 practice areas.

The number of cases with findings were down in every event in 2020 compared to the previous two years. While cases with a finding during consent judgment and default judgment were both down 13% from 2019, cases with findings on the merits had even larger decreases. It is no surprise that trials plummeted in 2020 as there were only 477 findings at trial this year versus 980 findings at trial in 2019 (a 51% drop). 

Federal district courts have adopted online hearings and adjusted protocols to facilitate court access (e.g., time extensions, alternative filing options, etc.), but overall activity is still considerably impacted by the pandemic.

Cases with findings by event; graphic courtesy of Lex Machina.Cases with findings by event; graphic courtesy of Lex Machina.

While a drop-off in activity is expected as the COVID-19 pandemic continues to affect our daily lives, various factors have proven to be significant in affecting activity in a specific practice area or stage of litigation. Our team continues to monitor litigation data for changes and aims to present meaningful updates to trends as they unfold. 

This data was gathered from the Lex Machina platform on November 16 and 18, 2020. Lex Machina has federal district court civil cases pending since 2009, except Prisoner Rights and Social Security cases. We do not have data on appeals. The Lex Machina platform updates daily and therefore any numbers in this report will change as new cases get added to PACER with new information. This report is meant to provide trends and general research information as of the date of publication.

This article was written by Rachel Bailey for Lex Machina. LegalReader thanks our friends at Lex Machina for permission to republish it. The original is found here.

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