On Sept. 18, Mayer Brown hosted its second annual AI Summit in
Los Angeles, which featured special keynote speaker California
State Senator Tom Umberg (D-Santa Ana) and focused on topics such
as AI governance, AI and antitrust, intellectual property,
contracting for AI and security challenges.
Litigation Daily caught up with four Mayer Brown partners and
summit panelists—John Nadolenco, John Mancini, Philip
Recht and Arsen Kourinian—in the weeks afterward to
hear their takeaways about the next wave of AI litigation and why
California is uniquely positioned to lead the charge on legislating
the ever-evolving regulatory landscape around AI.
The following has been edited for length and
clarity.
Lit Daily: The first Mayer Brown AI Summit was held in
Chicago last year. What prompted the firm's decision to move
the location to Los Angeles in 2025?
Philip Recht: We did it in California this time because it's
the epicenter of the legislative activity and it's the
epicenter of the industry.
60-plus percent of the AI companies are headquartered in
California, and there [are] more AI employees here in California
than anywhere else. But beyond that, California was the appropriate
place because, if you look at legislation and how the industry is
being regulated ... California is the center of it. And it is very
similar to what happened in the privacy world.
California enacted the first major state privacy law—[the
California Consumer Privacy Act]. As in the AI case, there was no
federal privacy law at the time. To the extent other states were
looking at the issue, they were not taking it on in a fulsome way.
California enacted this comprehensive data privacy law. It's
been amended any number of times since. But what it did is set the
trend for other states in the country to enact privacy laws
themselves. And it became the de facto national standard. And you
have very much the same thing happening in the AI world.
If you look at the current makeup of Congress, for the same reasons
that Congress was unable and has been unable for years now to act
in the privacy world, it's almost certainly unable to act in
the AI world. The bodies are just too closely divided to reach a
consensus, so in the absence of that, the states are going to
act.
[California has] a smart activist legislature, and as present facts
show, it's taking the lead. Unless the feds take some action,
what California does is probably going to lead the nation.
And I think you're going to see other states, just like in the
privacy world, pick up and follow the lead of California.
John [Mancini], you were a speaker on the Intellectual
Property panel. What themes emerged from your discussion about the
future of IP litigation in the AI industry?
Mancini: A little while ago, there was this sense in the
marketplace that maybe the IP cases had plateaued and that there
was this general understanding that, likely, there would be finding
the fact that this was fair use. But boy, did that change with the
[Bartz v. Anthropic] case.
So now a lot of what we talked about in our panel, and a key
takeaway is, how long is this going to be around? What are the
risks for other companies? And really trying to parse through which
companies are at risk, which ones [are] not, because there's
certainly a different factual pattern at play in the
Anthropic case than for many other entities.
Six months ago, maybe, there was a sense that they've
plateaued. But I think, as you've seen the last few weeks with
cases being filed pretty regularly now, the situation has changed.
And while we once may have thought we were in the eighth inning,
some people are saying we're probably just in the second or
third now.
You are going to see a considerable amount of activity in the
intellectual property realm. The number of cases just filed in the
last few weeks since the Anthropic settlement was put into the fray
are evidence of that. I think you'll start to see, maybe, even
a split of authority amongst the circuits. I think you're going
to see some challenges amongst the states trying to protect either
interests of individuals or interests of copyright holders against
what is at least a national concern to make sure that our national
AI companies are not at a competitive disadvantage.
What issues—after IP— do you expect to be part
of the next "waves" of litigation to target the AI
industry?
Arsen Kourinian: One area where there's been AI regulation is
conference recording. A video conference recording tool [records] a
conversation and AI transcribes it for you and also gives takeaways
and action items from it. And there's been a wave of—not
only in the AI context, but in other situations such as cookies on
websites—where they've been claiming that it constitutes,
allegedly, wiretapping when you're engaging in these recording
and AI transcription processes. So I think that's one area of
litigation.
The other area of litigation that may arise is if the chatbot or AI
system causes harm to individuals under product liability
theories—another area that may potentially evolve into being
a very litigious area.
What stood out to you about the keynote address presented
by California Senator Tom Umberg?
John Nadolenco: Senator Umberg basically just flat-out said,
"Look, in the absence of federal legislation, California
intends to fill that void and introduce bills that try to regulate
various aspects of AI governance." He has heard complaints of,
"Well, California doesn't get to set a national
standard." But his view certainly was, "Okay, that's
probably true, but a lot of times when California legislates, other
states follow and will de facto adopt those standards." So, he
has been particularly active, and I think California's
legislature as a whole has been particularly active on those
measures.
Mancini: The senator himself acknowledged some of the legislation
was actually vetoed by the California governor. So, there is a bit
of a dynamic in California where it is also the place where this
country's leading tech providers are in competitive races with
China and others. Yet the legislature is putting forward some laws
that could be, if not an impediment, at least a bump in the road in
terms of the advancement of their technology.
Some of that is a little bit inconsistent with what seems to be the
prevailing case law coming out of most courts, leaving aside what
happened with Anthropic, that it's fair use. So, it is really
interesting—the internal battles that California's
dealing with itself, trying to manage the growth of its tech
companies, yet trying to protect both information belonging to
copyrighted holders, as well as protect public interest.
But you're going to see, probably, some challenges to these
laws, probably some attempts to finally force federal legislation
to supplant the field. Certainly, if California passes some of the
laws, you might see Congress start to get involved to federalize
these issues because of either the national security concerns or,
simply, the concerns about the hindrance that we might cause to
some of our tech companies that are leaders in this space.
Reprinted with permission from the November 20 edition of Law.com© 2025 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.