AI Tools Drove Up Claims by Pro Se Plaintiffs and Small Plaintiffs’ Firms The use – or, more aptly, misuse – of generative AI programs in the preparation of court filings skyrocketed this year among pro se plaintiffs and small plaintiffs’ firms. This reality required many in-house counsel teams to budget more money due to the significant increase of claims brought by pro se plaintiffs. It also led many courts to establish standing orders banning the use of GenAI tools in the preparation of court filings and sanction parties for submitting filings riddled with inaccuracies and non-existent cases attributed to AI “hallucinations.”
LITIGATION AND TRIALS
2025 PREDICTIONS RECAP
PREDICTIONS FOR 2026
Just as we predicted, the Supreme Court ruled that employers need only meet a “preponderance of evidence” standard – and not a heightened “clear and convincing” standard” – in order to prove they properly classified employees as exempt under federal wage law. The January decision was a win for businesses and sets a consistent national standard under the Fair Labor Standards Act. Supreme Court Rejected Higher Standard of Proof in OT Exemption Cases We also correctly predicted that SCOTUS would establish a bright-line rule for determining whether certain civil rights plaintiffs are eligible for fee awards as “prevailing parties.” We covered how the Court’s February decision in a driver’s license case could impact employers in litigation matters – in both positive and negative ways. SCOTUS Made It Harder for Civil Rights Plaintiffs to Recover Attorneys’ Fees
Disparate Impact Claims Will Decrease – But Majority-Group Bias Claims Will Rise President Trump issued an executive order in April that aims to eliminate the use of disparate impact liability in all contexts to the maximum extent possible – potentially giving employers new leverage against disparate impact claims (which employees may still bring under federal and state law). However, the Trump administration’s anti-DEI stance, along with a Supreme Court decision in June scrapping an extra hurdle for “majority-group” discrimination claims, will lead to a rise in similar workplace bias claims in many parts of the country. Increased State-Level Litigation and Enforcement As many states work to fill perceived gaps created by federal deregulation, we will see a major uptick in state-level litigation and enforcement of workplace law claims. You should also stay tuned for more court challenges over states’ attempts to step into areas of federal oversight, such as the NLRB’s recently filed lawsuits against California and New York for attempting to expand their power to regulate private sector labor.
AI-Generated Evidence Will Become a Core Discovery Battlefield In 2026, AI-generated ESI – especially from AI notetakers, meeting summaries, auto-drafted emails, and chat assistants – will be routine in litigation. Parties will be fighting over accuracy, admissibility, consent, privilege, preservation obligations, and more. New Litigation Danger as Employees Claim Green Card Favoritism Discrimination claims are rising against employers accused of favoring foreign national workers over US workers. Attorneys from our Immigration Practice Group spotted this new litigation danger earlier this year, and we don’t see it going away in 2026.
Todd Alan Ewan Philadelphia/Pittsburgh Partner, Co-Chair Litigation Practice Group
Suzanne Kelly Michael Seattle/Portland, OR Partner, Co-Chair Litigation Practice Group
OUR PREDICTIONS WERE CORRECT
HOW DID WE DO?
MORE FROM 2025 Supreme Court Significantly Limited Courts’ Power to Issue “Universal” Injunctions
Karl R. Lindegren Irvine/Los Angeles/Portland, OR Partner, Co-Chair California Litigation Practice Group
In a decision that is sure to have reverberations for employment law for years to come, the Supreme Court held in June that district courts cannot issue injunctions that are broader than necessary to provide complete relief with respect to each plaintiff who has standing to sue. These so-called “universal” injunctions came under increasing fire over the past decade as they frequently stalled workplace-related policies for both Republican and Democrat administrations. Want more SCOTUS? Check out our Employer Impact Guide to the Supreme Court’s 2024-2025 Term, as well as our Employer Preview of Top Supreme Court Cases to Watch This Term.
Kristen J. Nesbit Los Angeles Co-Regional Managing Partner, Co-Chair California Litigation Practice Group
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