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WILL ROBOTS EVER GET WORKER’S RIGHTS?
LAWYER
MAY 2019 ISSN 2052-6474
MONTHLY
CONNECTING THE LEGAL & BUSINESS PROFESSION, GLOBALLY
ARE REGULATORS
STRUGGLING TO TACKLE
MONEY LAUNDERING?
MAY 2019 Editor’s Note 5
A NOTE FROM THE EDITOR PUBLISHER
Welcome to the May 2019 edition of Lawyer Monthly

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decades for our money to be scammed from us, so what can
be done to deal with this?
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EDITOR
Jaya Harrar
Editor@lawyer-monthly.com
PRODUCTION MANAGER
Emma Tansey
Production@lawyer-monthly.com
Jaya Harrar
SALES MANAGER
Editor - Lawyer Monthly James Southern
James.Southern@universalmedia365.com
6 Inside This Issue MAY 2019
INSIDE THIS ISSUE

WORLD REPORT EXPERT INSIGHT
10. International News
10 12. Lawyer Moves 27
30. Money Laundering
34. Employment Law
36. Monetising Your IP
SPECIAL FEATURES 38. Intellectual Property
41. Licensing Your IP

16. Will Robots Ever Get Workers’ Rights?
16 By Jaya Harrar 42. IP Disputes
44. IP Infringement
18. The Artificial Intelligence Hype
What Do Our Clients Really Expect?
EXPERT WITNESS
20. When Are DPAs a Risk to Senior Executives?
48. Architecture
22. Reforms In Divorce Law: Simpler, Faster,
47 50. Computer Forensics
Friendlier 52. Chartered Surveying
53. Energy Law
24. You’ve Been Served!
GDPR Fines Hit Home… Time for Legal IT Teams 54. Otorhinolaryngology
to Embrace Cyber Best Practices?
LEGAL LADDER
56. 5 Simple Mistakes Law Student Make
55
57. How Do I Get A Career In Law?
58. The Rise of the Legal Freelancer
59. The Importance if Networking in the Legal

Industry
MAY 2019 Inside This Issue 7
THOUGHT LEADER
62. The Gig Economy
61
65. Investments
66. Pension Fraud
SUPER LAWYERS
70. How Has the Bulgarian Legal System
69 Progressed?
PROFESSIONAL EXCELLENCE
74. Music Copyright
73
76. Superyacht Law
LM USA
80. Personal Injury
78 - Super Lawyers
82. Criminal Convictions & Discrimination

- Expert Insight
COMPLETING THE DEAL

86. Key Points on Fundraising Strategy
85
TRANSACTIONS
89. What’s happening in the world of M&As and
88 IPOs?
LEGAL LIFESTYLE
98. The Althoff Grandhotel Schloss Bensberg
97
#MonthlyMoot
M ONTHLY
MOOT
Should Robots Ever Get
Workers Rights?
20%
80%
NO YES
1,188 votes ● Final Result
G O TO PAG E 1 6 TO R E A D
@LawyerMonthly
"Whats the definition of a robot?

Genetic engineering and [a] supersoldier
program mean robots could be technically
made of flexible structures like skin."
"That's a very deep

question!"
"This could potentially overhaul

employment legislation, impacting
unions, workplace violence,
termination, IP and a whole array of
other employment issues."
D O U R S P E C I A L F E AT U R E
10 Monthly Round-Up MAY 2019
FRAUD
7.5 Million Brits Fall Victim to Seller Fraud

Nearly half (47%) of peo- who take a greater finan- items were damaged in and opened up the world some responsibility, great-
ple who have sold an item cial hit, losing an average the post. A further 8% of of buying and selling to er protection must be put
or service online have fall- of £544 more than men. sellers weren’t fully paid millions more people. in place to safeguard sell-
en victim to fraud accord- for the work they com- ers online. The adoption of
ing to new Fraud Tracker Looking at the tactics that pleted and 7% had buyers “However, this doesn’t increasingly sophisticated
data from Shieldpay. fraudsters employ, one threatening to post a bad come without risk. While technology is one solu-
in five (18%) sellers have buyer fraud is well docu- tion that can help elimi-
review online if they didn’t
This totals some 7.5 million1 been forced to give the mented it’s clear that seller nate the risk. Shieldpay
pay them money or do
people and the financial buyer a refund after they fraud also impacts millions gives sellers and buyers
additional work.
impact is not to be under- said they never received of people. This isn’t right. confidence by verifying
estimated; the average the item, 13% of sellers People should feel con- the parties and holding
amount lost to fraudsters had to refund buyers who Tom Clementson, Direc-
fident when selling items money for a transaction
is £2,054, with 10% of sellers stated that the product or tor of Consumer and SMB or services online and not securely until all parties
defrauded by more than service wasn’t what they at Shieldpay, said: “From have to worry they will be are happy to release the
£5,000. While men and expected and one in ten cardigans to cars, e- short-changed by buyers funds, enabling stress-
women are equally likely (11%) were defrauded commerce sites and apps looking to pull a fast one. free and safer shopping
to fall victim, it’s women by a buyer who said the have risen in popularity “While sellers need to take online.”
BREXIT
Home Office Announces Start Date for Major

Changes to Tier 1 Visa Routes
Artificial Intelligence plat- For example, investment trading, sales, operations,
form, Talent Ticker, has re- bank J.P. Morgan, for ex- middle office and Risk &
vealed the impact Brexit is ample, have reportedly Compliance.
having on those working made 300 employees
in the financial services agree to move to France The AI platform has found
industry. or Germany in the event that banks are relocating
of a no-deal Brexit, as the
away from London and
A review of the platform’s firm seeks to reduce risk of
the UK, cutting down on
data has revealed an in- disruption by a hard exit
costs in the UK in search
crease in the number of from the European Un-
of more stable and cheap
financial services compa- ion. Talent Ticker predic-
tive analytics reveals that alternatives. Talent Ticker data shows banking. Most of the tal-
nies expanding to open
the industry is likely to see low-cost centres such as ent who build these great
European offices, and
more companies follow In the event of a no-deal Glasgow has seen an 80% products are still based in
even completely relocat-
suit. Brexit, it is predicted that increase in jobs created the UK and want to stay
ing from the UK in favour
more and more financial in the financial services here so London will always
of offices in EU member
Ireland, France and Ger- service firms will move out industry. remain as a talent power-
states.
many are the most promi- of the capital to allow house, globally.”
nent countries likely to see them to continue trading Talent Ticker founder and
While London remains a CEO, Nick Vaughan, says: “It’s now more crucial
an influx of financial ser- within the EU.
hub for the financial ser- “However Brexit unfolds, than ever that financial
vices employees accord-
vices industry, companies ing to Talent Ticker with gaining access to great service companies speak
Although many traditional
have generally shown Frankfurt the most popular talent will play a big part to their staff to understand
caution in hiring in the city financial services firms are
destination. Luxembourg in the future of the bank- what is keeping them up
in recent months. Talent shying away from London
is also a likely place for re- ing world. Trends show at night. There needs to
Ticker’s investigation has and the UK, other major
location according to the growing consumer trust be clear internal commu-
revealed a 30% increase UK cities such as Cardiff,
AI platform. in online banking and nication about whether
in banks making job cuts Bristol, and Glasgow are
this has enabled more staff are going to be af-
compared to the same According to Talent Tick- becoming hubs for tech- fected. This reassurance
emerging technologies
period in 2017 which sug- er, the financial services nological innovation, to also enter the arena, could be the difference
gests that the UK could roles most at risk of being with emerging FinTechs with things such as AI and between keeping and
be losing out as a result of lost to European locations appearing across the UK automation playing an losing the top players on
Brexit. include: private banking, every week. increasingly bigger part in your team.”
MAY 2019 Monthly Round-Up 11
IP LAW
Intellectual Property Vital for British Economic Growth
A House of Commons dustry” but I beg to dif- tion, which has seen the Duncan Clark added:
summit has thrown the Duncan Clark, director fer. I see something more introduction of AI and “Countless start-ups
spotlight on how British of Academy at Patsnap, exciting and exhilarating globalisation.” make the fatal mistake
businesses need to edu- said: “It is a well-known than ever before and IP of seeing IP as a ‘bolt-
cate themselves on intel- fact that 80% of a com- is the fulcrum of this trans- Chris Skidmore, minister on’, with many only
lectual property (IP) and pany’s value is in intan- formation.” of state for universities, coming across it when
how it can help them gible assets such as IP, science, research and in- they’re faced with a le-
succeed in a tough eco- but unfortunately many Stephen Lambert is head novation, said: “Britain is gal battle. The video-led
nomic climate – or if Brit- British companies aren’t of the automotive elec- a world leader because courses PatSnap runs on
ain leaves the EU. making it part of their trification at McLaren of IP. It underpins every- the Academy are not
business strategy. In- Applied Technologies, a thing we do in the econ- about making people le-
Top IP institutions, law stead, they’re only learn- leader in the power elec- omy itself and is funda- gal experts – rather, they
firms, universities and ing about IP when it’s far tronic sector contributing mental to this country’s educate them on the
business leaders from too late or when it be- nearly £50billion to the UK success. We need to pro- basics of what they really
the automotive industry comes a legal issue.” economy. He added: “In vide a smooth and effec- need to know in order to
attended the confer- our world, we face rapid tive IP system regardless be able to innovate and
ence which was hosted “If we can create the en- development, we have of Brexit and we need to commercialise success-
by the Intellectual Prop- vironment to help British to fix problems quickly be prepared for all even- fully. Unfortunately, many
erty Awareness Network businesses utilise IP in their and have an innovative tualities, whatever the start-ups fail because
(IPAN) and backed by strategy from the outset, mindset. But IP isn’t in the outcome. IP is not a “Cin- they do not harness the
the leading IP business we will have a strong average mindset of an derella” subject in gov- benefits of IP.”
intelligence solutions economic advantage engineer because filing ernment and we need
and open, online training over our competitors. This patents mean you lose to work together as one Since 2017, Academy
courses, PatSnap. will be particularly useful your competitive advan- single IP community.” by PatSnap has collabo-
to the British automotive tage. We need to use IP rated with some of the
The aim of the summit, industry which needs to more to retain our inno- According to WIPO, one world’s top IP experts in
held ahead of the World find a way to stay afloat vation culture and proof the biggest mistakes order to provide free,
Intellectual Property when Britain leaves the tect what we have.” start-ups make is failing open intellectual prop-
Organisation’s (WIPO) EU.” to create a well-thought- erty education to its
World IP Day, was to en- John Ogier, chair and out IP strategy. For this community of over 3,000
courage the influential David Wong is senior convenor of the Finance, reason, in 2017 PatSnap members. Academy was
attendees to work to- tech and innovation Business and Economics launched the first-ever recently welcomed as a
gether to develop policy manager at the Society Group, IPAN, said: “IP is free online Academy member of IPAN (Intellec-
and support education of Motor Manufacturers based on the power of for R&D organisations, tual Property Awareness
that will help British busi- and Traders, represent- innovative imagination. inventors and entrepre- Network), a non-profit
nesses harness the ben- ing the views of the UK’s The world is changing neurs to educate them- network of organisations
efits of IP to support in- £82billion automotive in- fast and motoring needs selves about IP and why and individuals that cam-
novation in order to stay dustry. He commented: to be reimagined for the it needs to be an inte- paigns to raise awareness
competitive in a global “Automotive is often 21st century alongside gral part of their business and understanding of in-
marketplace. seen as the “sunset in- the fifth industrial revolu- strategy. tellectual property.
LAWYERMOVES
14 Lawyer Moves MAY 2019
Tariq Imam Promoted to Partnership

Inaamul Laher and Nicola Reader
Promoted to Counsel
Leading international law firm Clifford Chance announced the

promotion in the Middle East of one lawyer to partnership and
two lawyers to counsel. The new partner promotion is part of a
global cohort of 30 lawyers elected to the partnership, drawn
from all of the firm's market-leading practices and across its
global network.
This follows the announcement of Mo Al-Shukairy's appointment

as Regional Managing Partner for the Middle East, commencing
a four-year term on 1 May.
Mo Al-Shukairy added, "We are very pleased to welcome Tariq

Imam to the partnership and to extend our congratulations
to Nicola Reader and Inaamul Laher on their promotion to DLA Piper Announces Partnership
counsel. Our new appointments reflect our continued success in Promotions for 2019
and commitment to the Middle East. Tariq, Nicola and Inaamul
are highly respected by our clients and in the market. These
DLA Piper announced that 77 lawyers have been promoted to its
promotions reinforce our capabilities in the region, to support partnership. The promotions were effective as of 1 April 2019 in the
the firm's clients in and out of the Middle East. We wish them United States and will be effective as of 1 May 2019 for EMEA and
every success." Asia Pacific. The promotions were made across many of the firm's
practice areas in 43 different offices throughout 20 countries.
The promotions take effect 1 May 2019. The promoted lawyers
are: Across the firm's practices globally, Corporate saw the largest
intake of new partners with 20 promotions, followed by Litigation
• Tariq Imam who leads the Middle East Real Estate Practice. and Regulatory with 18. Real Estate and Intellectual Property and
His primary areas of focus are large development projects and Technology had eleven and ten promotions respectively, whilst
real estate financing in the region, as well as investment deals there were six in Employment. Finance and Projects and Tax had
(both direct and indirect) and transactions in the hospitality five and four promotions respectively, while there was one each in
sector. Tariq also supports the firm's regional institutional investor Restructuring, Government Affairs and the firm's Office of General
clients on outbound transactions. He joined the firm in 2011 and Counsel.
is qualified in New Zealand.
In total, there were 23 promotions in the United States, four in
Canada, three in Latin America, 22 across Continental Europe,
• Inaamul Laher who leads the regional front-end Construction
eight in the United Kingdom, four in Asia, three in the Middle East,
group and is based in Abu Dhabi. He has a strong track record
five in Australia and a further five in New Zealand. A full list of
of working with sponsors/developers, government authorities,
partner promotions by office and practice is included below.
lenders (including ECAs, DFIs and Islamic financiers), institutional
investors and contractors on the construction and maintenance
Simon Levine, Global Co-CEO of DLA Piper, commented, "I would
of complex assets across all major industry sectors, including oil
like to congratulate all of our new partners on their promotions.
& gas, IWPs, conventional and renewable power, infrastructure/
They have all shown strong commitment to client service,
PPPs and major real estate schemes. Inaamul relocated from excellence and innovation, and will play an invaluable role in the
the London office in 2016. future growth and leadership of our business."
• Nicola Reader who is based in the Abu Dhabi office. Nicola Jay Rains, Global Co-CEO, added, "These promotions demonstrate
trained with Clifford Chance and qualified into the London our ongoing investment in our business and represent the quality,
restructuring practice, and she has been based in the region breadth, and depth of DLA Piper around the world. These
since 2015. Her primary area of focus is financial restructurings/ exceptionally talented new partners have made significant
distressed debt and general financings. Nicola was recognised contributions to the firm's growth and development, and we are
as a Rising Star at the IFLR Awards 2018. confident that they will continue to thrive in their new roles. I look
forward to working with them in the next stage of their career."
MAY 2019 Lawyer Moves 15
Jones Day's Washington Office Adds Ashurst Boosts Global Real Estate
Partners David Applebaum, Michael Team with Partner Hire
Oblon and of Counsel Amie Breslow
International law firm Ashurst announced the appointment of
The global law firm Jones Day has announced the arrival of three partner Andrea Caputo in the real estate team in Milan.
lawyers to the Firm's Washington Office. David Applebaum and
Michael Oblon both join the Firm as partners in its Energy and Andrea joins from Freshfields where he has worked since
Intellectual Property practices, respectively, while Amie Colwell joining from Delli Santi & Partners in 2005. He has over 16
Breslow comes to Jones Day as of counsel in the Tax Practice. years' experience in advising clients on significant transactions
involving the acquisition, disposal and letting (including long
Mr. Applebaum counsels energy industry clients, representing them
term leases and lease-back structures) of large scale retail, office
in energy regulatory enforcement matters before the Federal
and logistics portfolios, including through real estate investment
Regulatory Commission ("FERC") and other agencies and in complex
civil litigations, government enforcement, and internal investigations. funds. Andrea has also advised international and domestic
He previously served six years at the FERC as director of the division of investment and corporate clients on the development of real
investigations in the Office of Enforcement, where he was involved in estate projects and has also been active in the negotiation of
major legal, policy, investigative, and litigation matters and was the construction contracts and corporate joint ventures.
division's liaison to the Commodity Futures Trading Commission's office
of enforcement. Andrea will be also be joined by lawyer Diego Mallone from
Studio Legale Mannocchi & Fioretti and trainee Vincenzo
"David's experience at the FERC and his high-level client Esposito from Freshfields.
representations give him particularly good insight to the compliance
and enforcement matters that confront our energy clients," said Jeff Commenting on the appointment, Carloandrea Meacci,
Schlegel, who leads Jones Day's global Energy Practice. "His work with Managing Partner in Milan, said:
clients across different energy sectors make him a great addition to
our team in Washington, and we look forward to working with him."
"We are delighted that Andrea is joining the team. I have no
Mr Oblon focuses on patent and trade secret litigation and strategic doubt that he will make a significant contribution to developing
counselling for technology companies that develop software, our real estate capability in Italy. The arrival of Andrea follows
electronics and electromechanical products. On behalf of plaintiffs, the promotion of Elena Giuffrè and Umberto Antonelli to the
Michael has secured settlements totalling over $65 million. For partnership last year and reflects our commitment to having
defendants, he has won numerous patent cases on summary a team of highly qualified collaborative lawyers, who are
judgment of non-infringement, invalidity or both, and has won committed to excellence in client service."
affirmances of those judgments on appeal to the Federal Circuit.
Hugh Lumby, Head of Global Real Estate at Ashurst, added:
"As innovation continues to drive the global economy, it is essential "Real estate is a key area of strategic focus for Ashurst. With
to provide our clients with counsellors, like Michael, who have deep one of the highest performing teams in the market, we continue
experience litigating highly technical patent and trade secret cases.
to make focused and strategic investment in the group.
Michael is especially adept at explaining complicated technical
Andrea's appointment further demonstrates our commitment
concepts in a courtroom, with an animated and engaging style
to expanding our capability and operating at the forefront of
honed through years of teaching IP law as an adjunct professor," said
the global real estate market. Italy is a significant destination
Anthony M. Insogna, leader of Jones Day's global Intellectual Property
for capital investment, with many of our key international real
Practice. "Adding Michael to our team expands our IP litigation and
counselling capabilities in the electronics industry and we are excited estate clients in Asia, Australia and the UK having invested there
to work with him." over the past 12 months. We anticipate this trend will continue
and that Andrea's arrival will help to capitalise further on the
Ms Breslow comes to Jones Day with more than 20 years of significant market opportunities."
experience working in international tax planning. Most recently, Amie
worked at PwC where she advised clients on domestic and cross- As one of the leading real estate players globally, the firm has
border mergers, acquisitions, integrations, spin-offs and other divisive unparalleled end-to-end lifecycle capability. The team is known
strategies, and the pre-sale restructuring of assets and operations for advising on all aspects of real estate activity including high
located around the world. Her previous experience includes a profile acquisitions and divestments, asset management, large
position as senior tax counsel at GE, and serving for six years as an scale development schemes, real estate finance, funds, joint
attorney-adviser in the Office of Associate Chief Counsel (Corporate) ventures, construction, planning, environment and tax advice.
for the Internal Revenue Service.
Jones Day is a global law firm with more than 2,500 lawyers in 43
offices across five continents. The Firm is distinguished by: a singular
tradition of client service; the mutual commitment to, and the
seamless collaboration of, a true partnership; formidable legal talent
across multiple disciplines and jurisdictions; and shared professional
values that focus on client needs.
WILL
ROBOTS
EVER GET
WORKERS’
RIGHTS?
Written By Jaya Harrar
Sounds like a ridiculous question, doesn’t it? A prosecuted? The machine-specialists specifically
question that sounds like it almost belongs in designed their robot to eradicate human bias. Were
terminator, is slowly becoming our reality. With they negligent and did not try hard enough? Or, if
robots and machines expected to perform half of they had programmed it correctly, does it fall on the
all productive functions in the workplace by 2025, AI’s shoulders, as, after all, the system was the one
companies may be wondering if they need to develop picking and choosing. Or will it fall on Amazon’s giant
any regulations to protect their shiny, new automated lap, as surely there is at least one human, somewhere,
workers. vetting the process?
If we were to fast forward to when AI has advanced There are even controversial talks within the EU to
enough to create a world with robots that can give robots a ‘personhood’ status. It feels like a
convincingly simulate human intelligence (i.e., surreal topic to be debating, but EU lawmakers are
think iRobot), we (the judiciary and governments) considering whether or not the human inventor or
will be faced with an array of challenging questions robot should be held accountable for their actions.
regarding robots’ rights. Can a robot be harassed or In this debate, the EU are tampering with the notion
abused? Can they be discriminated against? Should that if personhood status was given to robots, they
robots be compensated for their work and if so, how? could be insured individually and be held liable for
Do robots have a right to their own union and if they damages; thus if something was to go wrong at work,
were to invent something, do they own that IP? they would face the consequences. Some say it is
common sense and will not guarantee that they will
We can take Amazon as an example of how robotics is have the same human rights, such as marriage, but
not as simple as we think it is. Back in October 2018, will put them on par with corporations. Others believe
the multinational tech company faced bad press after it is just a new way for manufacturers to avoid the
their machine-learning specialists realised that their responsibility of the actions of the machines they
AI recruitment ‘robot’ - which they had been working created.
on since 2014 - was discriminating against female
applicants.
If responsibility lands on the robot’s shoulders, they
also could be given the same rights as humans,
Effectively, their AI tool had taught itself that male
especially in workplace situations, in order for them
candidates were supposedly more preferable; it
to better integrate and work symbiotically with their
was trained to vet applicants by observing previous
human colleagues. This could potentially overhaul
patterns in applications and CVs and, unsurprisingly,
employment legislation, impacting unions, workplace
as the tech industry was male-dominated, most of the
violence, termination, IP and a whole array of other
CVs it analysed were from men.
employment issues.
Thus, even though the tool was devised to be neutral

And even though the philosophical elements of
and unbiased, the AI managed to single out phrases
robot’s legal rights are far from a priority at this given
it deemed less preferable, due to the lack of them
time, security, privacy and safety are all high on the
on successful applicants they previously analysed,
list of topical points of discussion that robotics will
such as ‘women’ in the phrase, ‘Chair at Women in
bring to the surface in the regulatory world in the next
Technology International’ in the list of recognised
decade.
accreditations on the CV.
From whether (human) employees should be

So where the AI system was thought to remove human
informed they are dealing with a robot - as it may not
bias all together and was specifically programmed
be obvious to the employee if they are liaising with
to not be biased against women, it failed, leaving
someone outside their department, such as HR - to
Amazon in a potentially sticky situation which could
who is liable for workplace bullying, if the robot is not
have led to litigation revolving around employment
a legal person but is technically the harasser, robot’s
discrimination.
workplace rights are actually more complex than we
would have ever thought.
But if things had escalated, who would have been
18 Special Feature MAY 2019
The Artificial Intelligence Hype

What Do Our Clients Really Expect?
Legal Tech, or Law Tech as it is often referred
to in the UK, is on the rise: booming global
start-up activity is proof that legal professionals
and investors alike believe in the imminent
technological transformation of the legal
landscape.
Although FinTech is the sector- industries, clients are beginning

specific technology that to develop expectations
everyone has heard of rather concerning the adoption of
than Legal Tech, it must be legal tech within law firms, which
recognised that a somewhat are sometimes as unrealistic
fragmented ecosystem of as the claims of some of these
legal technology companies start-ups.
has emerged over the last few
years across the world, seeking Historically law firms have never
to emulate the success of the been known as being early
Silicon Valley model. The Silicon adopters of new technologies.
Vikings, for instance, bridges However, client demand is
Nordic and Baltic Innovation the best driver for adoption. In
with the Silicon Valley, while in light of this, some of the most
Switzerland, the Crypto Valley tech-savvy market participants
has emerged as “one of the have begun to implement new
world’s leading distributed features, actively developing
ledger and blockchain their offering around legal
ecosystems”. Similar centres can tech. Some of the larger firms
also be found in London, New are establishing their own
York and Singapore, as well as “legal labs” to showcase their
many other jurisdictions around ability and willingness to invest
the globe. in the development of digital
efficiency. Other medium-sized
Increasingly, tech-clusters law firms are narrowing their
such as The Silicon Vikings are specialisations, focusing on ICOs
garnering the attention of key and blockchain technology.
stakeholders such as investors, Moreover, some single
venture capital, governments practitioners are starting purely
- which try to adopt innovation- online law firms that focus on
friendly legislation - as well as relatively narrow subject areas.
the media, who are always Ultimately, larger law firms tend
drawn to what is seen as to invest in business-to-business
the ‘cutting edge.’ Such technologies to increase their
attention has produced a efficiency and productivity as
hype that has influenced law a firm, while smaller law firms
firms, independently of the prefer to develop “single-
achievements of these start-ups. point solutions” that tend to be
Further, as a result of building customer-facing.
media attention and widely-
celebrated success stories Despite these developments,
By Georg C. Umbricht,
around the implementation of client expectations for law firms
Managing Partner of UMBRICHT Attorneys, Globalaw
AI and digitalisation in other to achieve better and more
MAY 2019 Globalaw 19
law jurisdictions. In the US, where gentler reminder of that is the

litigation is more common than Sorcerer’s Apprentice in Walt
in Europe, software analysing Disney’s 1940 movie “Fantasia”.
Other medium-sized law firms are the history of previous cases The current Legal Tech hype
to predict legal outcomes of is beginning to stir client
narrowing their specialisations, focusing on litigation can be more easily expectations despite a
ICOs and blockchain technology. Moreover, developed for the benefit of significant lack of successful
some single practitioners are starting purely clients. examples of AI implementation.
Undoubtedly, it will take time
online law firms that focus on relatively Independently of jurisdictions, AI to develop effective and
narrow subject areas. technology is increasingly being reliable tools, contrary to some
used for document review, of the press coverage of the
including summarising and scene. Nevertheless, the start-
analysing documents, such as up activities are great news for
in large M&A transactions. This a slightly faster evolving legal
cost-effective results through just lead to greater efficiencies
technology allows for efficiency market, and especially for an
artificial intelligence, machine and manage repetitive work.
and productivity gains; gains otherwise sometimes sluggish
learning, and new applications European economy. It is inherent
which free up lawyers to invest
are often too high. Regardless Effective AI solutions must be the time in thinking about the in the term ‘start-up’ that only
of the hype and the enthusiastic developed on the basis of large right questions to ask and the a small fraction of them will
press coverage of Legal Tech and reliable pools of data, right approach to take. Further, succeed over time. However,
start-ups, there are only a few something which is difficult to this technology can prove far as law firms are looking to adopt
AI applications within the law gather in a fragmented market. more accurate than a human the offerings of successful start-
profession currently available English-speaking jurisdictions lawyer could ever be. However, ups, the changes are welcome
that actually deliver results. have a great advantage in as the first analysis of the Boeing and the awareness of their
Most of the so-called “digital this regard, as well as common 737 MAX catastrophe seems potential has never been
solutions” are still simple law jurisdictions, with their to underline, one cannot risk higher. Ultimately, clients and
algorithms that have nothing to tradition of thorough legal leaving the human out of the law firms will profit from these
do with machine learning; they databases, compared to civil equation. An unparalleled technological advances. LM
When Are DPAs a Risk to Senior Executives?

By Ross Dixon
This April marks five years since Deferred
Prosecution Agreements (DPAs) were
introduced into the UK.
Although we have only seen four agreements

so far, all made by the Serious Fraud Office,
these deals between the state prosecutor
and a company under criminal suspicion
have changed the game for white collar and
corporate criminal investigations.
The attractions of a DPA to subsequent prosecution of
the SFO and any company it individuals. All DPAs have to be
is investigating are powerful. ratified by a court.
DPAs enable the SFO to bring a
company to book for complex The four DPAs that have been
financial crimes without the cost, agreed so far are with Standard
delay and risks of a criminal trial. Bank in 2015, an anonymous
At the same time, they allow the UK subsidiary of a US company
company to draw a line under in 2016, and in 2017 both Rolls-
a criminal investigation and to Royce and Tesco. More are
move on from any wrongdoing likely in the near future with the
without having to face criminal current Director of the SFO - like
proceedings. her predecessor - declaring
herself a fan.
But while the mutual benefits of
a DPA to both the SFO and the My experience defending
company concerned are clear, former Tesco UK managing
they may be less so for others. I director Chris Bush on charges
believe DPAs carry considerable of fraud and false accounting
risks for senior executives at the following a DPA, highlighted
company under investigation to me the way in which DPAs
- even those who may know may adversely impact justice for
nothing about any illegal individuals.
activity.
A DPA can only be agreed with

Adopted from the American the company itself and not with
model, DPAs were introduced individuals. In 2017, the SFO
into domestic law as part of the and Tesco agreed on a DPA
Crime and Courts Act 2013. with Tesco on the basis that
Tesco Stores Limited (Tesco’s
Companies can use a DPA UK subsidiary) was guilty of
to avoid criminal prosecution false accounting relating to a
on the basis they accept so-called ‘black hole’ in the
guilt, comply with the terms company accounts.
of the deal, and co-operate
with the SFO both during Because a company can only
the investigation and in any be criminally culpable of fraud or
MAY 2019 hickmanandrose 21
wrongdoing, but were named

as guilty parties in the DPA.
As a consequence, DPAs should For there to be a DPA, senior

individuals within the company
come with a serious health warning for those
had to be guilty and this was
who are running companies under investigation the basis on which the SFO
by the SFO. proceeded. The ‘not guilty’
verdicts in the criminal trial
demonstrate the shortcomings
of this. They raise the question
false accounting if an individual was based - was not supported whether these men would have
who embodies that company been charged at all if there
by the underlying evidence. The
- known as the ‘directing mind had not been such a focus on
prosecution’s account of what
securing a DPA.
and will’ - commits an offence, happened had been agreed
the DPA could only proceed on by the SFO and Tesco but it did FIRM PROFILE
The Tesco case was the first time
the basis that senior individuals Ross Dixon has more than
not stand up to the rigorous test that the factual basis of a DPA
had committed the crime. 20 years of experience as
of a criminal trial against the has been tested in a criminal
a criminal litigator and has
individuals. trial. It failed.
In this case, the SFO and Tesco been described in Legal
agreed on a DPA based on 500 as “highly intelligent,
At the end of the prosecution Not only were the defendants
three senior executives being committed and approach-
case, the very experienced trial acquitted when the prosecution
the wrongdoers. It was on able. One of the best
judge Sir John Royce agreed case was shown to be too weak
this same basis that the SFO criminal defence solicitors
that there was insufficient to put to a jury, but having been
prosecuted the three senior around”. He has a thriving
evidence to leave the case acquitted, they were powerless
executives from the company. white collar fraud and cor-
to a jury. The Court of Appeal to prevent the claims against
porate crime practice and
endorsed this decision and both them in the DPA from being
Following a first trial which ended is regularly instructed in
defendants were acquitted. published.
prematurely as a consequence some of the highest profile
of serious health issues for one
The SFO subsequently offered cases in this field.
DPAs are here to stay. However,
of the defendants, my client no evidence against the third
directing minds within a
and his co-accused John defendant in January this year.
company are at real risk of being
CONTACT
Scouler were tried together at unfairly blamed for wrongdoing
This was a very unusual outcome Ross Dixon
Southwark Crown Court at the when this is necessary to land a
as it was completely at odds Partner
end of last year. DPA. As a consequence, DPAs
www.hickmanandrose.co.uk
with the narrative on which the should come with a serious
As their case progressed, it DPA was based. It resulted in the health warning for those who
became clear that the SFO’s extraordinary situation in which are running companies under
narrative - on which the DPA three men were acquitted of all investigation by the SFO. LM
Reforms In Divorce Law: Simpler, Faster,

Friendlier
After sustained lobbying from all sides, the
government finally announced in April that
divorce laws in England and Wales will be
reformed and updated. The impetus for
reform has gathered significant momentum
over recent years. Prominent members of the
judiciary, the Family Mediation Taskforce and
Resolution, the national organisation of family
lawyers, have all argued in favour of no-fault
divorce.
The government announced is unwieldy and woefully out

the changes in response to of sync with contemporary
a public consultation which attitudes and the reality of
began last September. Justice relationships in 21st century
secretary David Gauke said that Britain. The key element of
as soon as parliamentary time the changes outlined by
became available, no-fault Gauke is to remove the
divorce would be introduced. requirement of having to rely
He added: “While we will upon unreasonable behaviour,
always uphold the institution adultery or two years’ separation
of marriage, it cannot be right in order to demonstrate that
that our outdated law creates the petitioner is automatically
or increases conflict between entitled to a divorce.
divorcing couples.”
So how will the new law be
The outdated law to which he different in practice? Essentially,
was referring is the Matrimonial it simplifies the process and
Causes Act 1973. Currently, shifts the emphasis from blame
anyone who is seeking a divorce to resolution. The irretrievable
has to provide evidence that breakdown concept as the
their partner is at fault either sole grounds for divorce will be
through adultery, desertion or retained, as will the two-stage
unreasonable behaviour - or process of a decree nisi followed
if both sides agree, they can by a decree absolute. But in
then part after two years of future, all that will be required is
separation. Without consent or for one or both parties to provide
evidence of fault, a statement that the marriage
has irretrievably broken down.
if one spouse does not agree
to the marriage being ended, Designed to allow both parties
the two parties must live apart to reflect on their decision, there
for five years before they can will be a six-month minimum
divorce. period between a petition
being lodged and the divorce
Lindsay Yateman,
Solicitor at Excello Law After nearly 50 years on the becoming final. But the new law
statute book, the current law will also prevent people from
MAY 2019 Excello Law 23
if one spouse refuses to agree.

Through his lawyers, Mr Owens LINDSAY YATEMAN
argued that his wife has failed Lindsay undertakes all
It will further introduce a new family law work including
to prove that the marriage had
concept where there can be a joint irretrievably broken down.
divorce, Children Act ap-
plications, cohabitation
application for divorce, which is intended to
disputes, civil partnership
“The appeal of Mrs Owens
remove unnecessary hostility and blame. The dissolution and pre-nup-
must be dismissed. She must
government and family practitioners hope tial agreements. She has
remain married to Mr Owens for
particular expertise in re-
that this will encourage greater consensus the time being”, the supreme
solving complex financial
court judge Lord Wilson said
and more amicable outcomes. in his ruling. “Parliament may
claims on divorce, which
often include company as-
wish to consider whether to
sets, trusts and pensions.
replace a law which denies
to Mrs Owens any present
refusing a divorce if their spouse a husband or wife to contest entitlement to a divorce in the
LINDSAY YATEMAN
still wants one after that time has is used less than two per cent above circumstances.” He Solicitor at Excello Law
elapsed. of divorces, this avenue was added: The Family court takes www.excellolaw.co.uk
given considerable publicity by no satisfaction when obliged to
It will further introduce a new the long-running case, Owens v rule that a marriage which has
concept where there can be Owens, which ended last year. broken down must nevertheless
a joint application for divorce, continue in being”.
which is intended to remove The Owens case was unusual
unnecessary hostility and because it reached the The verdict and the judges’
blame. The government and Supreme Court - the only comments in the Owens
family practitioners hope that contested divorce to do so case were the key catalysts
this will encourage greater for several years. By a majority for change. Although the
consensus and more amicable ruling, the judges upheld earlier new legislation will introduce
outcomes - in particular, helping rulings by a family court and a minimum timeframe of six
to ameliorate the position for the the court of appeal: that Mrs months, giving couples time to
children of divorced parents. Owens had to remain married reflect from petition to the final
to a man whom she wanted to divorce order/decree absolute,
Critically, the new legislation divorce because her husband it does not, however, go far
will also remove the ability of would not consent to a divorce. enough. Once someone has
one party to contest a divorce The judges “reluctantly” told her made the decision to petition
against the wishes of the that a joyless marriage was not for divorce even six months will
other. Although the ability of adequate grounds for a divorce feel like too long to wait. LM
You’ve Been Served!

GDPR Fines Hit Home… Time for Legal IT Teams to Embrace Cyber Best Practices
Almost a year has gone by since the biggest
change to Europe’s privacy laws in a generation
came into force. The GDPR turns one in May,
and according to the latest figures, it is already
having a positive impact on organisations in
terms of transparency and accountability. But
being open and honest will only get you so far.
For those in the legal sector, it’s particularly
important to use this opportunity to improve
corporate cybersecurity.
Not only will it help to avoid the GDPR fines that

are landing with increased regularity, but in so
doing, law firms can also protect their hard-
won corporate reputation.
The GDPR gloves are off 91 fines issued — most of which

Ever since the starting pistol related to breaches of personal
was fired on 25 May 2018, data — and over 59,000 breach
commentators had been incidents reported to regulators.
waiting for regulators to levy This is particularly important
the first major fine. After all, this for businesses operating in the
was the law that introduced legal sector. Why? Because
potentially astronomical fines the sensitive data they handle
of up to 4% of global annual and trusted links to client
turnover (or £17m, whichever organisations make them a
is higher) for non-compliance. lucrative target for hackers.
In the end it came, perhaps According to a study published
unsurprisingly, at the expense by the National Cyber Security
of a US tech giant. Google Centre (NCSC) in 2018, £11m of
was hit with a €50m (£44m) client money was stolen over the
fine by a French regulator in preceding year and 60% of law
January for failing to properly firms reported an information
inform customers on how it security incident — a 20% year-
personalised its ads. on-year increase.
However, it’s not alone. Although An attached report highlights

there have been no more fines the top four threats facing
quite that size, regulators have the sector as: phishing, data
been increasingly willing to breaches, supply chain and
penalise those seen to be failing ransomware attacks.
on compliance. Most recently,
the Polish regulator (UODO) Back-up now!
slapped a £187,000 fine on a firm While the link between data
for its failure to notify consumers breaches and GDPR is well
about using their personal understood, the potential
information. As of February, DLA impact of ransomware on
Piper claimed there had been compliance may be less so.
MAY 2019 Nasstar 25
are increasingly common on the

FIRM PROFILE
cybercrime underground.
Nasstar is a leading IT pro-
It’s not easy being an IT vider to the legal sector and
Time for action
security leader in the legal sector. Along It’s not easy being an IT security
has been providing fully
managed IT, cybersecurity
with the growing risk from hackers, there’s leader in the legal sector.
and cloud services to the
Along with the growing risk
new digital infrastructure to protect, including industry for over 20 years.
from hackers, there’s new
cloud deployments which have expanded For more information, visit
digital infrastructure to protect,
the Nasstar website.
the corporate attack surface including cloud deployments
which have expanded the
significantly.
corporate attack surface
significantly. That’s not to
mention persistent industry skills
shortages which can leave IT
Ransomware attacks typically It’s these details which make
security teams stretched to
make an organisation’s data the difference between cyber
breaking point.
unavailable, rather than steal protection that works, and a
that data for sale on the dark strategy which may actually give
However, by following best
web. However, according the organisation a dangerous
practices it is possible to reduce
to Article 32 of the GDPR, IT false sense of security. You
cyber risk and improve GDPR • Keep all devices and software
teams must put in place the may nominally have disaster
compliance efforts. It’s all up to date
“appropriate technical and recovery and incident response
about convincing the regulators • Follow best practice
organisational measures” not plans, for example, but when
you have the best interests standards and frameworks.
only to secure the data, but also was the last time they were
of customers and employees Start with Cyber Essentials. BS
tested effectively?
“to restore the availability and 10012:2017 personal
at heart. This doesn’t require
access to personal data in a spending millions on flashy information management
Similarly, you might have a
timely manner in the event of a technology, but nor does it system (PIMS) and ISO
watertight server and network
physical or technical incident.” mean doing the minimum you 27001:2013 information
security in place, but if your
This makes backing up an believe is necessary to stay security management system
employees are still using
essential requirement for any (ISMS) could also help
password-only logins for under the radar.
law firm if the worst-case • Consider outsourcing some
accounts; it’s the equivalent
scenario happens and they fall or all security functions to
of locking the front door to the Consider the following as a start:
victim to a ransomware attack. a managed security services
house and leaving the windows • Endpoint, network, server and
provider
But the devil is in the detail. As open. As I revealed last year, web/email gateway
World Backup Day on Sunday researchers found over one protection, ideally from a
Above all, remember that
31st March reminded IT leaders, million email addresses and single reputable provider GDPR compliance is not a
best practices require following passwords linked to the UK’s top • Tight access controls (least single process that you can tick
the 3-2-1 model: three copies, 500 law firms, up for sale on the privilege) and multi-factor off and move on. It will require
on two different media, with dark web. They’d been used by authentication (MFA) constant attention and a close
one off-site (e.g. in the cloud). employees to log-in to third party • Continuous networking eye on what regulators are
Otherwise, ransomware may sites like LinkedIn which were monitoring for threats demanding, as requirements
find its way into the backup subsequently breached. Such • End-user education (i.e. may change over time. Follow
data stores. troves of corporate log-in data phishing simulations) the ICO for updates. LM
Reputation - “The Best of the Best” in Employment Law
Workplace Harassment Stops Here!

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EXPERT
insight
As Lawyer Monthly’s flagship feature, our Expert Insight section brings
you the details and finer discussions surrounding numerous subjects
in the legal world. Over the next few pages our guest experts have
provided some very interesting topics and dialogues surrounding some
of the most crucial legal fields of today’s world.
This month, we gain insight into:
IP
From patent portfolios to IP disputes, we learn how businesses can
monetise their IP and when it is the best time for them to act on
infringement. Hearing from an array of experts in this area, we learn
the importance of effective IP management and how businesses can
use IP to their advantage.
28 Expert Insight MAY 2019
MONEY
LAUNDERING
Are Regulators Struggling to Tackle Money
Laundering?
A whopping USD 800 billion to USD 2 trillion is predicted to be laundered
every year, globally. And even though the gap between the two
figures is vast, it goes to show how governments and authorities
struggle to handle such a crime. Money laundering is often associated
with drugs or gang-related crime, and often, something as mundane
as real estate or business transactions are hiding the culprits. What is the connection
between money laundering
and the property market?
Reconnecting with Dennis Miralis this month, we discuss international
money laundering through Australian real estate. How easy is it and The laundering of illicit funds
through real estate is an
what can be done to tackle the issue?
established money laundering
method in Australia. Studies
have shown that criminals may
be drawn to money laundering
through real estate due to
the fact that it is relatively
uncomplicated and requires
Dennis Miralis little expertise. Furthermore,
Dennis Miralis is a leading Australian defence real estate can be bought
lawyer who practices in the following areas of using cash, true ownership can
complex domestic and international criminal law; be disguised, and property is a
white-collar and corporate crime; bribery and secure investment with good
corruption; cybercrime; money laundering; seri- potential to increase in value.
ous fraud; worldwide asset forfeiture; transnational
crime; extradition; Interpol Red Notices; anti-terror- What are some of the most
ism law; national security law and encryption law. common methods of money
laundering through real estate
He appears in all courts throughout Australia and
in Australia?
regularly travels outside of Australia to advise in
complex international criminal law matters.
Case studies have revealed
that criminals may buy real
Contact estate using a third party1 or

family member as the legal
Dennis Miralis, Partner
owner. Property is either
Nyman Gibson Miralis
purchased on their behalf,
Level 9, 299 Elizabeth Street,
or proceeds of crime are
Sydney NSW 2000
deposited into their bank
Tel: +61 2 9264 8884
account to make the purchase.
Fax: 9264 9797
This method allows criminals to
Mob: 0414 933 168
avoid direct involvement in the
ngm.com.au
money laundering process.
Loans and mortgages2 can

also be used as a cover for
laundering proceeds of crime,
MAY 2019 Expert Insight 29
and their repayment can be amount of illicit funds that can intention of conducting criminal How exactly do these
used to mix illicit with legitimate be laundered to service the activity at the property5, such professional facilitators help in
funds. Money launderers often debt. as drug production. the laundering process?
also collude with third parties
such as real estate agents The audit trail may be further Illicit funds can also be used to These professionals may
to manipulate the value of a confused by reselling property pay for renovations, thereby assist criminals to launder
property. in quick succession4. The increasing the value of money through real estate in
property is sold at a higher property. The property is then a number of ways including
sold at a higher price. establishing and maintaining
Can you explain more about value, either to related or
domestic or offshore legal
the manipulation of property acquainted third parties, or to
One of the most commonly entity structures, such as trusts
values? companies or trusts controlled
known methods is the or companies, facilitating
by the criminal. This gives an
use of front companies, or conducting transactions
The key methods used are over appearance of seemingly
shell companies, trusts on behalf of the criminal,
and under-valuation. legitimate profits while the
and company structures2 receiving and transferring large
criminal maintains ultimate
established in Australia or amounts of cash, establishing
Under-valuation3 involves control over the property.
overseas. Property held in complex loans and other credit
recording the property value
the name of one of these arrangements, introducing
on a contract of sale which is What are some other ways
companies allows criminals criminals to financial institutions
less than the actual purchase that money is laundered
to distance themselves from and facilitating the transfer of
price. The difference between through real estate that allow
ownership. ownership of property to third
the contract price of the criminals to evade detection in
parties.
property and its true worth is Australia?
How is the money laundering
paid secretly by the purchaser How and where do these
process facilitated? Which
to the vendor using illicit funds. Cash may be deposited below professional money launderers
parties are involved?
The purchaser is able to claim the $10,000 reporting threshold3 operate?
that the amount disclosed in across different banks/ The Financial Action Task
the contract as having been branches to avoid triggering Force (FATF) recently released Investigations and research
paid is within their legitimate threshold transaction reports to a report6 on the international have shown that they operate
financial means. If the property AUSTRAC. The funds are then activities of professional all over the world, and often it’s
was sold at the market or used to obtain bank cheques money launderers. The report a very sophisticated network
higher value, the apparent to buy real estate. shows that professionals such with various professionals
profits would serve to legitimise as lawyers, accountants, responsible for distinct portions
the illicit funds. This method Another common method real estate agents, financial of the money laundering
is also used to pay less stamp is leasing out the properties, advisers and trust and process, as well as associates
duty. providing tenants with illicit company service providers or contacts that coordinate
funds to cover the rental may assist criminals to launder with each other to facilitate
Criminals may also overvalue payments, in order to legitimise money through real estate. money laundering. Such
real estate with the aim of the illicit funds. These parties also commonly groups frequently conduct
obtaining the largest possible conduct legitimate businesses their activities and transactions
loan from a lender. The larger Criminals may buy property alongside their dealings with across multiple borders and
the loan, the greater the using illicit funds with the the proceeds of crime. countries.
How do these professionals What are the key risks relating 1)

Does the location of the What impact does this activity
evade detection and carry on to money laundering through property match the location of have?
their normal occupation? real estate, and how can they the buyer and seller?
be mitigated? Money laundering through real
2) Are the buyer and/or seller estate can distort real estate
The complexity, global scale,
In its briefing document9, located in a country with a prices, pricing legitimate
and expertise in the provision of
the European Parliamentary weak AML regime or a high buyers and even renters out of
services make combatting the
Research Service demonstrates degree of corruption? the market.
activities of professional money that unusual or suspicious
launderers a challenging task patterns can be identified There is clearly a strong
These factors can also affect
for law enforcement. relating to a number of key international element to
decisions about where to
areas: customer risk, transaction money laundering through the
live, resulting in a change
Something that contributes risk and geographical risk. Australian property market.
of neighbourhood and the
significantly to this is ‘layering’. Does this also apply to criminals
related displacement of less
Layering is the process through Spotting the money laundering based overseas?
affluent households.
which proceeds of crime risk behind the real estate
transaction can help to perform Yes, overseas-based crime
received by professional What do you see as the key
a risk-based assessment and groups and individuals may buy
facilitators are funnelled real estate in Australia using challenges for law enforcement
address the matter.
through an intricate and illicit funds to conceal assets agencies in combating money
complex web of transactions, from authorities in their home laundering through real estate,
Customer risk relates to the
often via multiple countries, to jurisdiction. Criminals may seek and the professional facilitators
ability to identify the real
disguise the origin of the funds, to integrate their funds into involved?
purchaser and ascertain any
prior to it being returned to third party involvement that Australian assets in an attempt
the criminal organisation from to avoid confiscation in their As is clear, the complexity
may be obscuring the true
which they originated. This home jurisdiction. Purchases and geographical spread
beneficial ownership.
can involve cross-border cash may be funded through of actions involved make it
overseas-based personal, difficult for authorities to pin
movements and underground Customer risk also covers
company or trust accounts. down this criminal activity
banking, the intermingling of purchases involving high-
Criminals may also use third and, even then, it is difficult to
funds through international ranking foreign officials or
parties to buy and sell property gather complete evidence
bank transfers, and multiple their families, who require
to further conceal ownership. of the source and movement
virtual currency transfers. specific attention either as
of funds. Consequently, law
politically exposed persons
Who is primarily responsible for enforcement is increasingly
(PEPs) or because of specific
Proxy networks are one layering reliant on international
international provisions, such as monitoring this type of activity
technique that serves as a in Australia? assistance and partnerships to
sanctions.
prime example of the difficulty effectively combat this type
posed by professional money Transaction risk relates to AUSTRAC is the main Australian of activity and the parties that
launderers to law enforcement elements such as a mismatch agency who can potentially help facilitate it.
in identifying and investigating between the buyer and detect money laundering
this type of criminal conduct. property, the use of complex through the property market, Do you feel that current
A proxy network uses a loans, or anything which and then involve other relevant legislation is sufficient in
does not appear to make agencies in the investigation effectively deterring money
series of international money
professional or commercial and prosecution of the laundering through the
transfers, for example, fake
sense. An example of the latter offence. Money laundering property market? How could it
trade contracts and loan
may be a purchaser who is not through real estate may be be more effective?
agreements through shell
interested in obtaining a better identified where transactions
companies ‘located’ in a
price or has not viewed the intersect with the regulated In Transparency International’s
variety of jurisdictions to AML/CTF sector, providing
property prior to purchase. recent ‘Doors Wide Open’
launder the proceeds of crime AUSTRAC with a degree of report8, it is posited that the
into seemingly legitimate Geographical risk can relate visibility over possible offences. ease with which money can be
funds. This activity is designed to both the property and the AUSTRAC’s approach to laundered through real estate
to eliminate the traceability of buyer. A number of questions regulation7 is further outlined in relates to insufficient rules
the original funds. to be asked include: a recent report. and enforcement practices
in attractive markets such information which is available country’s financial intelligence enforcement bodies working
as Australia. Transparency to law enforcement, and unit should be independent collaboratively to investigate
International proposed a set preferably also in a public and should have powers and collect the necessary
of reforms and measures to registry. This information should to request information and evidence across borders. The
establish an effective system include name, nationality, conduct on-site checks. use of mutual legal assistance
to detect and prevent money date of birth, address, and how requests, the issuing of Interpol
laundering through real estate: control is exercised. Sanctions in the sector should red notices and the freezing
be effective and dissuasive of assets are some of the
Coverage of anti-money Suspicious transaction report Administrative and criminal procedures often found in
laundering provisions should (STR) rules should be adequate sanctions should be enforced these cases. It is also likely
be adequate. and implemented against individuals and that a decision will need to be
All entities involved in real Governments should require companies to punish non- made about which jurisdiction
estate transactions (e.g. all parties involved in real compliance with anti-money
will ultimately prosecute the
real estate agents, lawyers, estate transactions to report laundering legislation.
offender, which in turn means
accountants and mortgage suspicious transactions to the
that there could be a request
lenders) should be required by financial intelligence unit,
Governments to conduct due and these reports should be for extradition. Individuals
What are some of the
diligence on customers. accessible by law enforcement who are being investigated
challenges faced when
agencies. Supervisory bodies and prosecuted against this
representing clients charged
Beneficial ownership should provide guidance on backdrop, therefore, face
with international money
identification should become identifying ‘red flags’ and on many legal and procedural
laundering?
the norm effectively submitting STRs. challenges in many jurisdictions
Governments should require Given what has been in a way that has never really
that real estate agents and Professionals who can engage said already about the been seen before in criminal
other entities engaging in in real estate transactions international nature of money law. It remains fundamental
property transactions keep should be registered and laundering and the difficulties to international criminal justice
records on the beneficial submit to “fit and proper” tests involved in detecting it, it is that all of these processes
owners of customers before All relevant parties should unsurprising that prosecutions comply with the rule of law
proceeding with the sale or be required to register with a and a suspect’s human rights,
for international money
purchase. designated public authority including the right to silence,
laundering are intelligence
and undergo anti-money bail, legal representation and
based and resource intensive.
Checks on foreign and laundering training.
Often, they involve several law a fair trial. LM
domestic politically exposed
persons (PEPs) should be Money laundering risks in the
enhanced sector should be understood 1. AUSTRAC, 2010. AUSTRAC typologies and case studies report 2010 (Case 9).
Governments should require all and fully acted upon http://www.austrac.gov.au/sites/default/files/documents/typ_rpt.pdf
reporting entities who engage Both governments and 2. AUSTRAC, 2009. AUSTRAC typologies and case studies report 2009 (Case 28).
in the buying and selling of reporting entities should http://www.austrac.gov.au/sites/default/files/documents/typ09_full_rpt.pdf
real estate to identify whether conduct risk assessments and 3. AUSTRAC, 2012. AUSTRAC typologies and case studies report 2012 (Case 9).
a customer is a PEP, a family use the findings to improve http://www.austrac.gov.au/sites/default/files/documents/typ_rprt12_full.pdf
member or an associate of a enforcement and compliance, 4. AUSTRAC, 2007. AUSTRAC typologies and case studies report 2007 (Case 39).
PEP – and conduct enhanced respectively. http://www.austrac.gov.au/sites/default/files/documents/typologies_report.pdf
due diligence. Foreign PEPs 5. AUSTRAC, 2010. AUSTRAC typologies and case studies report 2010 (Case 1).
http://www.austrac.gov.au/sites/default/files/documents/typ_rpt.pdf
and their associates should be Supervision of the sector should
6. FATF, 2018. Professional Money Laundering.
treated as high-risk clients. be consistent and effective
http://www.fatf-gafi.org/media/fatf/documents/Professional-Money-Laundering.pdf
Governments should determine
7. AUSTRAC, 2018. AUSTRAC’s approach to regulation.
Foreign companies should a single independent
http://www.austrac.gov.au/sites/default/files/AUSTRAC_ApproachRegulation1811_v2WEB.pdf
only gain access to the real supervisory body to oversee 8. Transparency International, 2017. Doors Wide Open – Corruption and Real Estate
estate market upon providing reporting entities’ compliance in Four Key Markets.
information on their real owners with anti-money laundering https://knowledgehub.transparency.org/assets/uploads/kproducts/2017_DoorsWideOpen_EN.pdf
Governments should require legislation. 9. European Parliamentary Research Service, 2019. Understanding money
that companies provide laundering through real estate transactions.
beneficial ownership Supervisory bodies and the http://www.europarl.europa.eu/RegData/etudes/BRIE/2019/633154/EPRS_BRI(2019)633154_EN.pdf
EMPLOYMENT
LAW
What Employment Issues Can Arise During
M&A Transactions?
What employment issues can potentially arise during a merger and
acquisition process? One of the most important aspects for corporations to
consider during a merger or acquisition process is human resources. Whether
the transaction is by way of sale of the business as a going concern or sale of
assets or court-approved merger schemes, it is important that the seller and
purchaser consider carefully the mode of employee transfer. Senior Partner,
Ms Nohid Nooreyezdan expands more below.
Accordingly, Section 25FF of payments if the terms were
the Industrial Disputes Act, not comparable.
1947 (“IDA”) re transfer of it is important for parties to
ownership or management review the terms and conditions of Accordingly, whilst statutorily
of an undertaking from the there is no consultation
former employer to a new
employment offered by the transferor entity
obligation in such a case
employer (“Section 25FF and map this against the new terms and (unless the employer has
Transfer”), that would trigger
a deeming provision where
conditions being offered by assumed such obligations
under an arrangement or
every “workman” who has the transferee entity. a settlement with workmen
been in continuous service individually or with their trade
for not less than one year unions), it is important that the
is deemed to have been to his being transferred, then How can clients avoid seller ensures that the Section
retrenched - unless inter the workmen who have such issues? What are the 25FF Conditions are fulfilled
alia the workman agrees been in continuous service premeditated measures they and the workmen accept
to be transferred - their for one year (i.e., 240 days) ought to take in this instance? the transfer. Additionally,
services are not interrupted
or more, would be deemed What measures must you for the transferee entity, it
by such transfer. In other
to have been retrenched by take when constructing new is important, to the extent
words, seniority benefits
the Transferor. Consequently, service agreements and possible, to achieve a
for the workman’s past
salary in lieu of notice and harmony of the service
period of employment are contracts?
retrenchment compensation conditions for these
preserved post transfer and
as laid down in Section 25F transferring employees with
the terms and conditions In light of Section 25FF, it is
of the IDA would be due to their existing employees for
of service offered by the important for parties to review
be given by the transferor to smooth integration into the
new employer are no less the terms and conditions
such employees. transferee entity.
favourable in comparison to of employment offered by
the one immediately before the transferor entity and
the transfer (“Section 25FF In such cases, the transferee In order to comply with
map this against the new
Conditions”). entity should ensure that Section 25FF of the IDA, the
all dues and social security terms and conditions being
transferee will be required
contributions due to the offered by the transferee to provide the workman
Therefore, in case of Section
transferring employees are entity. This takes on a greater with terms and conditions
25FF Transfer, if the Section
25FF Conditions are not cleared and paid by the significance where the client of service which are no less
complied with by the transferor entity to mitigate is the transferor who would favourable to the workman
Transferee entity or where the liability on the transferee otherwise have to bear the post transfer; however, there
workman does not consent entity for past dues. burden of the severance is no statutory restriction
on the transferee entity

to modify the workmen’s
service conditions at a later From the transferee entity’s
stage. This comes with the
viewpoint, the conditions of service
proviso that if the change at Ms. Nohid
a later stage to the specified being offered to the transferring employees Nooreyezdan
service conditions of the are identified at the time of the As a Senior Partner based out
workmen (such as basic of Mumbai, I have been with
wages, hours of work and
transfer of the undertaking the Firm since its inception
rest intervals, classification and head up the Employ-
of grades, leave with wages ment Law practice. Being
and holidays, withdrawal of Section 9A of the IDA. It is when the transferor entity in the profession for over 24
any customary concession or therefore advisable, from the would remain liable for a years, I have advised clients
transferee entity’s viewpoint, “deemed retrenchment” from various sectors on the
privilege, etc.) is prejudicial
rapidly evolving nuances of
to the workman, it can only that the conditions of situation, rather than at a
Indian employment law.
be affected after giving a service being offered to the later stage when they would
prior notice as required and transferring employees are have to follow the process
Contact
in the prescribed form and identified at the time of the for effecting any prejudicial Ms Nohid Nooreyezdan
manner as provided under transfer of the undertaking, change. LM Senior Partner
AZB House
Peninsula Corporate Park
Firm Profile Ganpatrao Kadam Marg
AZB & Partners is one of few firms in the country with a dedicated Employment Law practice, Lower Parel
with a focus on the same for more than two decades. Having witnessed and experienced Mumbai 400 013
the impact of globalisation and technological advancement on workforce engagement Tel: + 91 22 6639 6880
and workplace dynamics, the Firm has provided pragmatic advice and solutions to clients Fax: + 91 22 6639 6888
on the application of India’s complex employment law regime, bearing in mind the or- www.azbpartners.com
ganisation’s practices, objectives and culture. In addition to our robust Employment Law
practice, our industry-specific experts ensure that our advice is holistic, taking into account
the nuances of various sectors. The Firm has strong Litigation, Tax and Intellectual Property
practices, which provide the required support to ensure that our advice is thorough and
complete. The Firm also has excellent working relations with specialized labour counsels
and a Compliance and Investigation practice, bolstering the Employment Law practice,
especially with respect to investigations around misconduct by senior management and
workplace sexual harassment.
MONETISING
YOUR IP
How to Monetise Your IP
For a wide variety of businesses to grow and maintain their intellectual
property portfolios, they must enforce their intellectual property rights. With
his experience in the courtroom, Mark Mizrahi brings a litigator’s eye to IP
issues, taking care to ensure the IP right is enforceable; he speaks with Lawyer
Monthly about how you can get the most value from your IP.
How do you know the value of

IP?
You can appreciate the Without patent protection for

value of IP rights by looking at the product and trademark protection for
some of the most well-known the trademark, the company has no
and successful companies in
way of keeping its products and
the world, such as Samsung,
Apple, or Facebook In most trademarks proprietary.
cases, the product, be it
hardware, software, or a
business method, can be
easily replicated or reverse- would have paid much, much untapped revenue for an IP This presents a supplementary
engineered by any person less to acquire Gibson's assets rights holder. income stream to the IP rights
with skill in a particular field. had the assets not included the holder.
Likewise, it doesn't take much Gibson trademark. In fact, in all For instance, one may have
effort to replicate a company's likelihood, Gibson's trademark developed and patented a Would the above apply for
trademark. Without patent was the most valuable asset technology that was intended each industry?
protection for the product and acquired. initially for a particular industry
trademark protection for the and application that has a Whether or not such licensing
trademark, the company has What options are there for much broader appeal. In opportunities would apply to
no way of keeping its products businesses wanting to use their working with a good patent the IP assets of a particular
and trademarks proprietary. IP to their advantage? What attorney, he or she will help
industry depends much
creative methods can they the inventor realise the
on the nature of the asset.
In other words, in the absence embrace? applications for the technology
For example, while not all
of IP protection, they would that are broader than the initial
patented technologies would
have no way of setting We all have a basic particular industry of interest
have applications across
themselves apart from others understanding of IP rights, and work with the inventor
industries, in many instances
and will be wasting much of i.e., ownership of a patent, to broaden the scope of the
its resources on research and they do and that needs to
trademark, or copyright, and patent. Then, the inventor
development and advertising/ be tapped early on in the
the ability to keep others from can attempt to license that
marketing that could be co- copying them. But IP rights technology to other Industries patenting process to make sure
opted by third parties without provide other benefits. For for which the innovation would that the patent covers all of
consequence. In addition, example, once an IP asset have applications. The same the potential applications. With
often times when a person gains some market exposure holds true for trademarks and regard to trademarks, much
acquires another company, and traction, there may copyrights. Coca-Cola may would depend on the fame
the IP assets are the most other industries outside of the be in the beverage industry, of the mark: no one's going to
valuable. For example, with company's marketing and but it licenses its trademark to want to license a trademark for
Gibson's recent bankruptcy sales channels that may be third parties who produce and use in a completely different
filing, the business entity that interested in using that IP. sell numerous non-beverage industry unless the mark is well-
bought it out of bankruptcy Those opportunities present products, such as clothing. known.
About
Mark Mizrahi
I am a Partner at the law
firm of Freeman Freeman &
Smiley, LLP in its Intellectual
Property Department. My
practice includes all aspects
of intellectual property law,
How can a business turn IP from from patent and trademark
a revenue drain to gaining to copyright matters. My ex-
money? pertise includes preparing
Whether or not such licensing
trademark and copyright ap-
opportunities would apply to the IP assets plications, preparing and ne-
An IP holder can also explore
its licensing opportunities of a particular industry depends much gotiating licenses and agree-
within its own industry. on the nature of the asset. ments relating to intellectual
Oftentimes, companies have property rights, and prepar-
limited capital and cannot ing patent applications.
exploit their IP rights to their
of litigation, as a means to IP rights holder may have a
fullest, even within their own
Industries. This gives rise to
obtain licensees and revenue. relatively easy time convincing Contact
That approach does not fit third-party infringers to take Mark Mizrahi
licensing opportunities, even
every IP asset or every IP asset licenses, short of litigation. Partner
to competitors in exchange
holder – much will depend Litigation is otherwise very FREEMAN FREEMAN
for a royalty. That way, the IP
on the strength of the IP asset expensive and time-consuming & SMILEY, LLP
rights holder can maximize its Phone: 310.255.6129
and the infringement case.
revenue and allow it to not only for the IP rights holder, so
If the IP asset is both strong Fax: 310.255.6229
recoup its investment in the one must closely consider
and the infringement case is www.ffslaw.com
development and protection those factors before pursuing
straightforward, one may be
of the IP rights, but also to litigation. At the same time, if
able to have a law firm take
generate a profit stream from one lets its IP rights be trampled
on the enforcement of the IP
them. upon without consequence,
rights on contingency, which
will allow the IP asset holder one would likely be rendering
What is your advice on using IP to minimize its risk. Also, where the IP asset worthless. As with
as a litigation vehicle? the asset is strong and the any business decision, all
infringement is clear, even the pros and cons must be
In some instances, one can without engaging the services weighed before deciding on
use litigation, or the threat of a contingency law firm, an the appropriate strategy. LM
INTELLECTUAL
PROPERTY
IP Issues on the Internet
Allowing the globe to rapidly like, share and manipulate others’ content, the
internet comes with several advantages, yet challenges alike. The IP sector is
no different. We speak with Yiannos Georgiades about how the internet has
impacted IP law and what issues are presented for inventors and artists alike.
How much of an issue is European Council has been as Google News. Therefore, is the fact that hyperlinks to
copyright infringement now, in a controversial development, according to the Directive, news articles accompanied
comparison to a decade ago, especially concerning Article journalists must get a share by “individual words or very
when the use of the internet 11 and Article 13 (former of any copyright-related short extracts” are permitted
was not as wide as it is today? Articles 15 and 17 respectively). profit gained by their news to be shared freely without
Article 13 states that “Online publisher. Even though this any issue of infringement. There
Copyright infringement is by content sharing service does not apply to private and are a few exclusions from the
all means a serious legal issue. providers and right holders non-commercial use of press Directive, specifically memes
The internet, in all its glory, shall cooperate in good publications, the introduction or GIFs, which are a form of
has complicated copyright faith in order to ensure that of this provision raises concerns communication through the
protection to a great extent, unauthorised protected works on implementation and use of scenes of movies and
given that people nowadays or other subject matter are not practicality. other video or image material.
are able to share content available on their services.” This
throughout social media means that major companies
and the internet so easily. such as Youtube and Facebook
At the same time, however, will be forced to remove
copyright laws and regulations any content if it infringes on The most recent development
are applicable whether the copyright and the responsibility in EU regulations on copyright has
infringement is taking place is on the company in case of
on the internet or not. What infringement. proven to be a very strict approach
becomes more complicated to copyright infringement.
through the use of the internet Contrary to the EU
is the implementation of Directive, Section 230 of the
copyright law, given the Communications Decency
transparent nature of the Act of the United States, helps
internet. guarantee free speech on The amendments approved What are inappropriate
the internet with the provision constitute a major change in allegations of trademark
The most recent development that “No provider or user the way data and content is infringement when regarding
in EU regulations on copyright of an interactive computer presented online, especially the internet?
has proven to be a very service shall be treated as since key internet platforms
strict approach to copyright the publisher or speaker of will now be liable for content Even though the internet
infringement. On 26th March any information provided by that users upload, and they operates as a world wide
2019, the revised proposal for another information content must in some way filter content web and content may be
amendment of the European provider”, a provision which in order to prevent copyright accessed by the whole world,
Union Directive on Copyright gives legal protection to online infringement. In saying that, the trademark infringement is
in the Digital Single Market platforms. new directive amendments usually straightforward in the
(“EU Copyright Directive”) was are vague in that there is no sense that a trademark will only
approved by the European Article 11 states that news indication on how internet be considered to be infringed
Council. The EU Copyright publishers “may obtain fair and platforms may achieve the if the alleged trademark or
Directive is designed to limit proportionate remuneration filtering process, something similar is used in such a way
how copyrighted content is for the digital use of their press which is a great task especially so as to create a likelihood of
shared on online platforms. publications by information given the large number of users. confusion as to the origin of
The new EU Copyright society service providers”, Adding to the vagueness of the the goods or services and the
Directive passed by the namely news platforms, such amendment of the Directive, possibility of an association
jurisdiction. In the EU, the ECJ to be eligible for copyright

states that generally, the only protection, it should be
What is important to have in courts that are in the position original and created by them
mind is that it does not matter whether to assess whether or not an individually; it must exist in some
action is infringing on the physical form for any period
the infringement takes place over the rights of a national trademark of time and the work must be
internet or not; the elements which are the courts of the Member classified as creative.
need to be satisfied for trademark State in which the trademark is
protected. Therefore, the issue In Cyprus, as in many other
infringement remain the same. lies in determining jurisdiction countries, no official registry
in terms of the location of the exists, and no registration
expected damage, versus the requirements must be met
between the two trademarks, held liable for infringing activity location where the trademark in relation to such works.
or used on goods and services taking place on its online in question is registered. The protection of the work
which are not similar to those marketplace. Specifically, the simply exists from the date
of the original trademark, Court ruled that an owner of Despite the above, trademark of its creation, namely
but benefitting from the a trademark may prevent an infringement is a lot easier to that the creator will have
registered trademark’s existing online marketplace operator prove than the tort of passing copyright protection once the
from advertising goods offered off, mainly due to the fact aforementioned criteria for
reputation and gaining an
for sale on the marketplace that trademark infringement protection are met.
unfair advantage. In order
bearing that specific is governed by statutory
for infringement to be valid,
trademark, in cases where the law, whereas passing off is It is important that each owner
certain conditions must be
advertising of the product is governed by common law; of the copyright has in place all
satisfied, such as the similarity in
not transparent as to the origin also, trademark infringement proof relating to their creation,
the overall impression created
of the product. deals with registered rights, including the progression of
by the two trademarks, any
whereas passing off deals with the work, ideas, drafts, rough
evidence of actual confusion
What is important to have in unregistered rights. Proving notes, sketches etc., which
by consumers and the physical
mind is that it does not matter passing off means that one will serve as evidence that
proximity of the goods in the
whether the infringement takes needs to show goodwill, they are truly the creators
marketplace.
place over the internet or not; misrepresentation by the of the specific art. To help
the elements which need other party and that the protect the copyrighted work,
An example of confusion misrepresentation has caused
to be satisfied for trademark it is advisable to mark the work
in relation to trademark damage to the goodwill.
infringement remain the same. with the International copyright
infringement was examined in Therefore, as lawyers, we
However, the peculiarities symbol © as well as the owner’s
various case law in relation to always advise our clients who
and the nature of the internet name and date of publication
online marketplace platforms. wish to protect their work to
may make it difficult to prove of such works accompanied
For example, in the case proceed with registrating their
in certain cases that the by the phrase “all rights
Lancome v. eBay the Brussels work from the beginning.
requirements are satisfied. This reserved”. It will also indicate
Commercial Court refused to
is something which always who the owner was at that
hold eBay liable for counterfeit depends on the circumstances What options are there for
time in case it is then necessary
cosmetic products sold of each case. businesses wanting to protect
to approach them for asking
through its website. In contrast, their assets online?
permission to use the work.
in the case of L’Oréal v eBay, Trademark infringement
it was stated that eBay was also faces issues relating to In order for a person’s work
Additionally, the owner could
send their lawyer a copy of their application. In this way, developments in this field since,
work by special delivery post, the patent or trademark is as has been proved from the
which gives a clear date stamp registered to a large number recent EU Copyright Directive
on the envelope, leaving the of countries at the same time which was passed this year,
envelope unopened on its and there is more security in the laws and regulations in
return. It is important to note case of infringement. Patent relation to intellectual property About Yiannos
that this does not prove that applications include the EPC rights seem to be forever Georgiades
a work is original or created which includes 38 European My name is Yiannos Georgia-
adapting to the developments
by the creator, but it may be countries automatically des and I am the Managing
in technology and the internet.
useful to be able to show the and the PCT international Director and founder of the
It is important for everyone
court that the work was in application which covers most law firm Y. Georgiades & As-
involved in the field of
the owner’s possession at a of the industrialised world. sociates LLC, established in
intellectual property to be well-
particular date. A trademark international 1992 in Nicosia, Cyprus. I am
informed at all times in relation
application is made using a member of the Bar of Eng-
Owners of text-based the Madrid System and to the provisions governing
land and Wales (Honourable
publications may also apply covers protection in up to 120 intellectual property law in Society of Gray’s Inn), Cy-
for an ISBN (International countries. order to be able to secure the prus Bar Association and the
Standard Book Number), which rights of your business and as Athens Bar Association. I am
is a product identifier used to Further, an advantage is that a lawyer to be able to advise the President of the Cyprus
identify the registrant as well upon filing the first application, your client accordingly. Chapter of the European
as the specific title, edition the application is placed in a Court of Arbitration, execu-
and format. Even though it theoretical queue in all other There are still issues which tive member of the Court
does not convey any form of countries. The applicant may remain unclear in relation and an online mediator for
legal or copyright protection, decide within twelve months to private international law commercial disputes for the
the ISBN is used to identify to file applications in other and jurisdiction in cases of Chamber of Commerce of
that a particular piece of work countries and these further Milan, and the Vice-President
infringement over the internet,
belongs to a particular creator. applications will be treated of AEA International Lawyers
however, one may expect new
as if they were filed on the Network. In 2017 I became
issues to arise in the upcoming
With trademarks and patents same date as the first one, the Co-founder of a business
years in relation to among
not necessarily being an provided they relate to the acceleration company un-
others, new methods of selling
international application, what same invention. In this way, the der the name KV Kinisis Ven-
products and advertising. tures Limited, a company
issues does the worldwide web applicant claims priority from
Similarly, practices such as dealing with innovation and
present for businesses that their first application.
cybersquatting and the use technology and specifically
expand at a quicker rate than
predicted? What would be your advice of metatags are ongoing companies established in Cy-
to businesses and lawyers cyber-problems for which prus which would like to scale
The advice we provide to each working on IP in this area? What limited legislation has been up in the United States.
client who would like to register should they be preparing for in introduced and usually only
a patent or a trademark is to the upcoming years? protect distinctive or famous
proceed with an international enough trademarks to warrant Firm Profile
application and/or an EU It is difficult to determine future protection. LM My law firm is essentially inter-
national in outlook with ap-
proximately three-quarters of
the clientele of international
Contact origin, which also has a firm
Yiannos Georgiades, Managing Director foothold in the domestic mar-
Y. GEORGIADES & ASSOCIATES LLC ket, providing an extensive
2, Ayios Pavlos & Kadmos Street, Wisdom Tower, 3rd Floor, 1105 Nicosia range of legal consultancy
P.O.Box 24144, 1701 Nicosia services to both Cypriot and
Tel: +357 22819292 | www.gmadvocates.com multinational clients.
LICENSING YOUR IP
Licensing Your IP: When Should You Consider It?
Kara K. Martin, Partner
kmartin@fblglaw.com | www.franchisebusinesslawgroup.com | 801-575-5001
An IP license is essentially giving another person the right to use your intellectual
property, which can be anything from your trademark, your copyright, your patent,
your know-how, formulas and other processes and things you have created. Many
people refer to IP as creations of the mind. Through a license, you are allowing others
to use your creations for a specific reason and for a set period of time. Essentially it is
a partnership between the intellectual property owner and another who wants to use
the intellectual property.
Why should businesses On the other hand, what should 2) Set clear boundaries in the
consider licensing their IP? businesses be cautious of? How agreement and make sure the
can they protect themselves IP is actually protected. If you
When you have created from things going wrong? are licensing your trademark
something of value, and want for a drink you created, and
to expand your business, In theory, an IP license is a not the formula for the drink, About Kara Martin
maximize potential revenue, simple document: I give you you want to make sure the I’m Kara Martin, a Partner
or improve or increase your the rights to use my intellectual agreement has protections and Shareholder of the
market position, licensing property and you agree to against reverse engineering, Franchise & Business Law
is a great option. There are pay me for that right. Simple changing the end product or Group. We are a boutique
several types of IP licenses enough. However, these types putting another trademark on law firm headquartered in
from technology licenses to of agreements really need the beverage. Salt Lake City, Utah and
franchising, which can be to take into consideration a I work out of our satellite
simple to complex, depending multitude of factors, and if
3) Be wary of granting office in the Kansas City,
on the type of IP being licensed ignored, can really harm the
exclusivity. A potential licensee Kansas Metro area.
and the purpose for the license. intellectual property and could
may come to you with a lot
Our law firm typically sees create a situation where the
of money and seem to be
businesses seeking to license owner loses their rights and
the best option for expansion, creating a business plan for
their IP through franchising, business completely.
and in return, they may want how and when you will expand
which is an effective way to
use the assets of others to to be the exclusive licensee. is a great way to ensure that
To protect your IP, you should
expand the market share and However, you want to make your IP license doesn’t turn into
really remember four key
reach of your IP. sure that limiting your options a negative experience.
elements:
to provide other licenses or use
What are the benefits 1) Make sure you actually your own IP in the ways you see How do you devise the rights
associated? own the rights and if the IP is a fit, are in your best interest. and relationship between the
technology or know-how, that licensee and licensor?
The main benefit as I stated it actually works and performs 4) Lastly, and this ties with
above is to leverage the as intended. This seems setting boundaries and An attorney knowledgeable
assets of others to expand your obvious, but this seemingly exclusivity, make sure you have in all types of IP license
business or take your product simple step is at the heart of the capacity to expand at the agreements can create an
into markets you would not the IP license. There are a lot of rate the license provides. Many agreement that specifically
otherwise be able to reach on things that go into creating IP companies have either gone meets your needs and gives
your own. and depending on the type of under or had their IP so diluted you the protection you require.
IP and the agreements in place that it becomes so devalued That same attorney will also
surrounding the creation, you because they expanded help you understand what you
may have to share ownership too quickly and could not need to know about your own
or limit the rights to just those meet the demands of either intellectual property and help
that are needed to meet your the licensee(s) or the public. ensure that your creations and
objectives. Establishing test territories and rights are protected. LM
IP DISPUTES
How Do IP Disputes Impact a Business?
What effect can an IP dispute have on business? “At worst, an IP dispute
has the potential to shut down a business entirely, or at least prevent it
from continuing to sell an important product line”, explains Katrina Crooks,
Principal of Shelston Lawyers. Below, she expands on this and how IP disputes
play out in Australia.
Expanding on the time rarely stands alone. Either the Australian arm of an
aforementioned on how an the applicant or respondent international dispute. We have
IP dispute has the potential may hold other IP which can a wide network of overseas
to shut down a business, this is be marshalled to leverage a law firms who we work with
While evidence in chief is
because where infringement particular result. There may regularly and we are well
generally given by way of
is found to have taken place, also be strategies for obtaining accustomed to working in
affidavit, witnesses are required
an injunction will usually be additional IP which can assist a multi-jurisdictional team.
to be available for cross-
granted, which may prohibit in protecting the client’s We appreciate that close
examination and oral evidence
the sale of a particular product. commercial interests and legal coordination is key in such
is an important aspect of the
In a number of situations, an position. cases and have built up a
case. Almost all patent cases,
IP rightsholder may also be sound appreciation of IP law
and many other IP cases,
able to obtain an interlocutory At Shelston Lawyers, we are in other jurisdictions, many of
involve expert evidence. A
injunction, preventing the sale fortunate to work closely our lawyers having practised peculiar Australian innovation
of a product until the dispute with our associated patent overseas during their careers. is the expert ‘hot tub’, in
is heard by the Court (which in and trademark attorney which experts representing
Australia could take at least 12 firm. In many cases, they will In some circumstances, both parties give concurrent
months). already have a thorough international patent disputes evidence in Court, having
understanding of a client’s IP may play out in Australia prepared a joint report prior to
The grant of an interlocutory portfolio or can ascertain this, before other countries. This the trial without the input of the
injunction, while not which allows us to quickly assess is because Australia has a lawyers. IP cases are generally
permanent, may have the any other IP which can be pre-grant opposition process, heard before a single judge of
effect in practice of preventing brought to bear on the dispute which usually involves the the Federal Court. While there
further sale of a product, at hand and to consider filing of independent expert is no separate IP Court, certain
because once it has been strategies for strengthening the evidence and an oral hearing, judges within the Federal Court
withdrawn from the market, client’s IP position. For example, with potential appeal to the are designated to hear IP
it may not be practical or where the client has a suitable Federal Court. As a result of this cases, and these judges are
commercially worthwhile to re- pending patent application early substantive opposition well experienced in IP cases.
market it, even it is ultimately it may be possible, at least process, Australia may be the Discovery is available and can
found not to be infringing. For for the time being, to make first jurisdiction where expert be significant in many cases.
this reason, our experience is an application for a divisional evidence is prepared and
that prompt attention to an innovation patent tailored to filed. Our firm has a strong track How does your firm advise
IP issue can be crucial. This is the infringing conduct. We also record in handling pre-grant clients to prepare for IP
true for both the rightsholder often find that an IP dispute oppositions and in a number litigation?
and an accused infringer. If left or litigation is the catalyst for of cases has gone on to deal
without attention, contentious further review by a client of with subsequent post-grant Through our association
situations tend only to get their IP portfolio more generally. Court proceedings in the same with Shelston IP, we are
worse and usually require We are ideally placed to assist matter. often consulted before
greater effort and financial clients with this process with our any particular dispute is in
investment to resolve. specialist attorneys. How does the resolution of IP contemplation - as far back as
disputes differ in Australia from the prosecution of a patent or
How can a wider IP strategy How do international IP other parts of the world? trademark -, to advise on how
impact on the course of an IP disputes play out in Australia? the client’s position can best
dispute? The Court process in Australia be strengthened at that stage
There is no doubt that we is broadly based on the English for any future litigation. Having
A single piece of IP which may operate in an international system of litigation, meaning input at that early stage from
be in dispute at a particular field. Many of our cases form that it is an adversarial model. a purely litigation perspective
can significantly improve may differ from the practice expertise of our associated Katrina Crooks
prospects in litigation later. in other commercial cases. It attorney practice to support
Katrina Crooks is a Principal
is important to be aware of any particular litigation
of Shelston Lawyers, one of
When acting for a rightsholder these practices and plan the case, whether it be related
Australia’s leading special-
in relation to a contentious issue litigation accordingly. As our to immunology or mining
ist IP law firms, based in Syd-
that has already developed, firm deals only with IP cases, engineering. While technology
ney. She co-heads the firm’s
we generally recommend we are very familiar with these is constantly changing, the law
litigation team, which acts
that we evaluate the peculiarities. It is a particular is sometimes slow to catch up.
strength of the IP right before feature of IP litigation, and for a variety of clients includ-
In many instances, the law
commencing proceedings, patent litigation especially, ing large multinationals and
operates in a technology
since validity will always be an that there will usually be a leading Australian corporates
neutral way but there are
issue up for grabs in Australia, counterclaim for invalidity. in a range of IP disputes. Dual
certainly some aspects of
and a revocation challenge As a result, both parties are in qualified as a lawyer and
the law that have struggled
will be heard together with an the position of advancing their patent attorney, Katrina has
to adequately deal with
infringement action. This may own case and simultaneously a wealth of international IP
technological reality. This
range from a full search and defending the other party’s litigation experience.
can be seen, for example, in
validity assessment of a patent case. Further, there is a
the copyright sphere, where
to a more limited analysis. substantial interplay between
the Internet has infinitely Firm Profile
In some cases, the validity each side of the case – an Shelston Lawyers works close-
changed the way material
analysis may identify issues that argument for infringement can ly with its associated patent
can be copied. In Australia,
should be addressed before potentially have an impact on and trademark attorney firm,
there have been attempts to
issuing of proceedings. Filing the invalidity case, and vice Shelston IP, leveraging the
modernise legislation where
an amendment to a patent is versa. To successfully navigate outstanding technical exper-
necessary, although in some
generally much simpler in the these ‘squeezes’, familiarity tise of its attorneys.
cases this has only come after
Patents Office than in litigation with all aspects of patent law
changes in other countries. An
in Australia and so it may be is key.
example is the amendment of Contact
advisable to amend the patent Katrina Crooks
the copyright legislation in 2015
before litigation kicks off. Given How does IP law keep pace Principal, Shelston Lawyers
the level of potential discovery with technological change, to introduce website blocking
injunctions for overseas Level 9, 60 Margaret Street,
in Australia, the client should and how does your firm keep Sydney NSW 2000 Australia
also ideally conduct an audit up with developments in both websites, requiring an ISP to
P: +61 2 9777 2450
of relevant correspondence technology and the law in the disable access to a website,
E: KatrinaCrooks@ShelstonIP.
and documentation. IP space? given that an Australian
com | www.ShelstonIP.com
injunction may be ineffective
How does the resolution of At Shelston Lawyers our entire against an offshore online
IP disputes compare with focus is IP. Our lawyers join infringer. The proper extent
resolution of other commercial our team because they want of safe harbour provisions in
disputes? to practice in IP and so it is copyright law is another area
not surprising that they have of ongoing debate in Australia
In Australia, there is no specific a natural inclination towards in efforts to balance the rights
IP Court, however, particular innovation and technology. of rightsholders and users in an
practices are generally We also have the advantage everchanging technological
followed in IP litigation, which of drawing on the depth of context. LM
IP INFRINGEMENT
When Should You Act on Infringement?
Mathew Forde, Director, Forde Campbell LLC | 1-3 Lombard Street, Belfast, Northern Ireland, BT1 1RB
Tel: 02890 897610 | www.fordelaw.com
What classifies as infringement?

Infringement comes in many forms and, in simple terms, it describes the act of violating
a law. But in the context of intellectual property, we tend to think of infringement as
the act of taking advantage of or exploiting the rights of another party without their
permission to do so. The key to infringement is really the absence of permission.
Mathew Forde tells us more below, alongside when to act and how to react to
possible infringers.
When should a business or exploitation, (iii) policing and the commercial value of those About Mathew Forde
client seek legal action during (iv) enforcement. The history of rights as compared to the cost I am one of the founding
infringement cases? its dealings in relation to each of asserting those rights, the partners of Forde
of those steps is vital to proving available court remedies, time Campbell LLC, a boutique
My advice to any business the strength, scope and value factors and, finally, the larger commercial law practice
clients is that if their IP rights of those rights. commercial picture. based in Belfast and
truly matter to them then they Dublin, which specializes
must act quickly to protect When confronting any When should the infringer be in IP, IT and media law. I
those rights when they are infringement scenario, the contacted? am a director of the firm
under threat. Delay serves strategies that need to be and an IP and reputation
no useful purpose. However, considered typically involve Immediately, assuming, of litigation specialist. I
legal action doesn’t always direct commercial negotiation course, that they can be also head up the firm’s
require the direct involvement combined with the threat of identified and contacted. The commercial litigation
of lawyers and businesses can enforcement of rights via the reason why notification is so department. Before
take a variety of steps to assert courts. More often than not important is that once a party founding Forde Campbell
their legal rights themselves. a successful resolution will has been placed on formal in 2006 I practised as
That said, if those DIY steps require leverage that is part notice of the infringement it in-house counsel for a
prove ineffective, then direct commercial inducement and cannot subsequently claim global pharmaceutical
legal action may be the only part threat of judicial sanction. ignorance of its unlawful company (2002-2006) and
option remaining and that may actions. Therefore, any prior to that I practised as
be the sensible time to pick up How do you decide which continuing acts of infringement
a commercial litigator for
the phone to your lawyer! strategy is best? will have been done in the
the City law firm, Lawrence
knowledge of the wrongdoing
Graham (1994-2001).
What are the available Whichever strategy is and will be considered
strategies to confront employed, ultimately the flagrant. Courts tend to award
infringement? determining question should higher damages to claimants Although there are some
remain the same, which is to take into account acts of statutory exceptions to this rule,
If a business can demonstrate simply this: what strategy flagrant infringement. in the UK, we have a common
that it has actively managed is more likely to achieve law rule called the doctrine of
its IP rights, then the task of a commercially realistic What occurs if nothing is done? acquiescence that basically
enforcing those rights before outcome at the least cost to Can you lose your IP? states that if you knowingly
a court of law becomes so the client? permit another party to infringe
much easier. My advice to any Doing nothing is hugely risky your civil rights and you chose
business is that it should apply Other influencing factors may and can, in some cases, to do nothing about it, then
a four-step holistic strategy be whether there are strengths completely undermine your you cannot later make a
when managing IP rights. These or weaknesses in any arguments ability to enforce your IP rights claim against the person who
steps are: (i) protection, (ii) asserting the business’s rights, against an infringing party. infringed them. LM
EXPERT
WITNESS
Over the next few pages, you will read about court instructions, the
complexities involved in forensic investigations, and about the profes-
sional expertise of each of our contributors. The variation in these roles
is outstanding, and it’s easy to see why these expert witnesses are in-
structed as leaders in their professions, whether it be computer science,
vehicle collisions, engineering systems, or even the most niche of jobs.
Being an expert witness, of course, involves knowing every detail, risk,

and outcome that might be of a particular scenario, and even if the
expert is experienced and thorough on all aspects of the scenario, dis-
crepancies can only be found by the best. This feature enables us to
see the law from an alternative perspective and grasp a new viewpoint
to ways in which the sector can change.
THIS MONTH WE EXPLORE:

The Medico legal sector
Architecture
Horiculture and Chatered Surveying
Forensics
48 Expert Witness MAY 2019
The practice of Architecture is challenging, absorbing,

fascinating, and complex. Architecture has been
described as a practical art, frozen music, being
ARCHITECTURE
about how a building’s shape, decoration, features
and materials come together to form a look or a style.
In his treatise de Architectura, military engineer John Perry, B.Arch., B.Sc.(arch), RIBA, FRSA, ARB, MAE, AaPS
BLDA Architects
Marcus Vitruvius Pollio set out, in the 1st Century BC,
a definition as “firmitatis, utilitatis, venustatis” which What are common legal cases the case that each building is
can be translated as “stability, utility, beauty” and in that arise in architecture? a prototype with the exception
a more anglicised translation: “firmness, commodity, of mass housing. Such housing
delight”. I have been instructed on can suffer from its own particular
many cases brought against difficulties if a generic mistake
Within this complex realm of art, design, technology architects by their clients. There is perpetuated across a design
seems to be a common theme
and construction, there is myriad opportunity for type.
running through many claims
things to go wrong. Most of the time, architecture is
characterised by a lack of What are the standard
successfully created and fortunately, things rarely go organisation and management regulations and codes architects
wrong. However, in this article, I reflect on some of the within the architect’s business. must meet?
areas where sadly this happens. A result of this can be a lack of
attention and skill being provided Architects must have a working
at the proper time within the knowledge of an increasingly
ABOUT JOHN PERRY ramifications if no such writ- design process. The effects wide variety of British Standards
As a Director of BLDA Ar- ten brief is established. can range from architects not and to date European
chitects, my work is wide- providing a good service, to Standards. There are up to some
ranging across the field I am responsible for major them in acting in a negligent 100 such standards of which an
of architecture, although refurbishment works to List- manner. There are areas of architect must be aware. An
currently, focused on high ed Buildings in St James’s failure between these two architect must know where, and
quality residential and be- Square and Belgravia Lon- extremes which require enquiry. have the resources, to research
spoke office architecture. don and for new houses in Perhaps surprisingly, it is less often the detail of these standards.
Kensington and in Suffolk. I the case that an architect has Separately there are the Building
am partner in charge of a made after considering a wrong Regulations to be complied
Spanning a career of 40
rolling refurbishment pro- design or detailing decision, with. These are signally complex
years in private practice, I
gramme for a major central and more often that insufficient to understand. Compliance
have been responsible for
London estate. I am re- consideration has been applied may require component testing
the design and construc-
sponsible for the design of a at the time it should have for the more unusual building
tion of many building types
national programme of low been to that part of the design designs.
ranging in contract size
energy low carbon homes. process.
from £40,000,000 to £50,000.
Architects must be aware
A recent commission Oce- The standard of Architectural of planning regulations, the
I also act as an expert in
anic House Pall Mall London education in British Universities town planning process and
professional and construc-
SW1 won the UK Property is generally a high one. I have its rules and of planning
tion-related disputes. I am
Award 2018/2019 for multi- seen a less rigorous approach law, of regulations affecting
engaged in pre-action ad- ple residencies. to training architects on how neighbouring property and also
vice, report writing, meet- to manage the process of of contract law, most especially
ings of experts, mediations, I am a visiting lecturer at the design within a commercial where an architect is appointed
adjudications and appear- University of Bath School of environment. I have a lingering as Contract Administrator for a
ance in court. In Freeborn & Architecture. concern that the claims I see construction contract.
Anor v Marcal [2019] EWHC result from this. It is clear that
454 (TCC) I was instructed Clients include private indi- such claims tend to arise after The detail of such necessary
on behalf of the claimants. viduals, private estates, de- a period when architectural understanding cannot be
Findings, in this case, in- velopers, contractors, com- practice has been stretched for held by one person for more
cluded the requirement that mercial owner occupiers, adequate resources. than the simplest of building
a written brief be provided investors, insurers and other design processes. It is therefore
by the architect and the financial organisations. The design of buildings is a highly imperative that an architects’
complex matter. It is just about practice is organised and
MAY 2019 Expert Witness 49
managed, to make the on running architectural Your reputation during dispute

appropriate resources available commissions. This extensive resolution
at the right time before and documentation includes the RIBA I have no doubt that professional
during the design process. An Job Book and the Handbook of reputations are on the line for
architect’s organisation should Practice Management. Both architects who are the subject
be scaled to the size of the work are now at their ninth edition. of substantial claims. Claimants
commissioned. This guidance has become are exposed to substantial
an industry standard which is costs at trial if they would be
Architects must have a unsuccessful. There is much
regularly updated. It would be
full understanding of the at stake in such a dispute. A
a brave architect who thought
applicable professional codes wrong strategy at an early date
such guidance could be safely
of practice. The Code of in pursuing a dispute can be
ignored while at the same
Practice of the Architects’ expensive.
time maintaining a competent
Registration Board applies to
standard.
all architects. Architects who More private forms of dispute
are also members of the Royal resolution such as mediation or
In my capacity as an architect
Institute of British Architects arbitration offer some shield to CONTACT
actively engaged in practice public exposure, although the
(RIBA) must additionally abide John Perry
by that Institute’s code. The and by reference to current rigour of a trial is missing. B.Arch., B.Sc.(arch), RIBA,
RIBA promotes a scheme of codes, standards, guidance FRSA, ARB, MAE, AaPS
Chartered Practice. Practices and competent practice, I Building design is complex. It Director
accredited to this scheme are am able to form my opinion as follows that deconstructing this
required to maintain further to what constitutes the work to investigate real or perceived T: 020 7838 5555
additional standards and to of a competent architect fault must be thorough. I have F: 020 7838 5556
meet criteria which include acting reasonably in particular some concerns that the strict
staffing ratios and management circumstances or where timetable of Construction Act BLDA Architects
systems including quality, performance falls below such adjudication while delivering 211 Design Centre East
training and safety schemes. standards. It is important to find a result in short order, cannot Chelsea Harbour
out what the architect was allow sufficient time for the London
What can go wrong for instructed to do and how the more complex disputes to be SW10 0XF
architects? instructed tasks were executed properly understood, both by www.blda.co.uk
by comparison to a competent those preparing for adjudication
I have not seen one constant and by those determining the
execution of that work.
technical failure running dispute.
through the cases on which I am
The building design process
instructed. Each matter has its It takes time to assemble a
should involve the generation
own set of circumstances which careful case whether acting on
and recording of many
require detailed consideration. It behalf of a claimant client or
decisions, some of which are of
is often the case, however, that an architect as a defendant.
complex reasoning, together Analysis of the detail is essential.
inadequate management of the
design process and especially with extensive and related data In my experience, the soundest processes should be informed
poor reviews of changes to a records. The design phase of test of such a complex dispute by expert opinion on both sides.
developing design that lead to more complex buildings can be is at trial. To avoid pursuing a The full costs of a CPR Part 35
a negligent failing. measured in years. A detailed wrong path by either side, the Compliant Expert Report might
and painstaking analysis of such importance of early without be avoided with a shortened
The RIBA publishes a detailed decisions, reasoning and data prejudice discussion, mediation report at an early date if the
and comprehensive Plan of will invariably reveal a lack of and settlement must not matter can be disposed of
Work with related guidance competence, if it exists. be forgotten. Clearly, such pre-trial. LM
Data recovery can reveal more than you may want

people to truly know. I mean, that is what the ‘empty
from recycle bin’ button was invented for; we wanted COMPUTER
to remove all traces of something which may come
bite later on. However, speaking to Steve Burgess, FORENSICS
President of Burgess Consulting and Forensics, we find Steve Burgess
out that often our (‘questionable’) browser history and Burgess Consulting and Forensics
secret documents may not truly be deleted, even if
Why is computer forensics In more than one case I’ve had,
we clear cache and remove all traces.
important to legal cases? the user has actually thrown
away the computer or the
He says: “I was there from the start: I saw the data Users generally don’t notice computer’s disk drive.
recovery industry in 1985 when Bobby Brown’s or realize that when we start
manager came begging to this former floppy drive a document and every time In another, the user reformatted
repair company (yes, floppy drives!) to recover data we reopen, revise, or print it, the computer with a different
from his crashed 10MB (yes, 10 MB) DOS hard disk. additional partial or complete type of file structure, then wrote
a boatload of data to it. We still
Developing methodologies for recovery, an industry copies may be automatically
made. We also don’t generally found the incriminating data,
was born.”
realize that when a document or however.
a file is deleted, it doesn’t just go
From floppy disks to our smartphones, we speak In yet another case, I was
away. In fact, very little happens
to Steve about how even though technology is to it. A deleted document may
scheduled to go to a site to
everchanging, its impact in legal cases remains. forensically image a dozen
be recoverable even years later.
computers. They needed to
That’s not just true for documents
delay the time for my arrival by
– with internet history, hundreds
ABOUT STEVE BURGESS FIRM PROFILE three days. Once I reviewed
of thousands of web and
I’m Steve Burgess, President Steve’s company has per- the data, I saw a log of the
network visits stick around for thousands of files they had been
of Burgess Consulting and formed data recovery,
years after the history seems trying to shred in the three days
Forensics. electronic data discovery
to have been deleted, even that they had delayed letting
and forensic analysis on
when we are using “incognito” me show up.
Personally, I’ve written and more than 15,000 hard disks
or privacy modes. We rarely find
spoken widely and con- and other digital media for
fewer than a hundred thousand Spoliation of data can be a
tributed the comprehensive firms and individuals in 22
deleted history entries when we big problem. Missing data can,
Computer Forensics sec- states and several coun-
go looking for them. These very of course, make it difficult to
tion to the text, “Scientific tries.
same web visits automatically winnow out the truth. But the very
Evidence in Civil and Crimi-
download many files, often fact of purposefully destroyed
nal Cases (5th edition),” by One successful recovery for
photographic images, into data can result in sanctions for
Moenssens, et al. Many of the World Security Council
the computer’s cache, which the side spoiling the evidence.
our written and video arti- resulted in improved nego-
similarly can stick around for In more than one case, the
cles can be found in various tiations and breakthroughs
years. discovery of an act of spoliation
legal journals as well as on in George H.W. Bush’s
lost the case for the spoiler.
the BurgessForensics web- summits with Mikhail Gor-
site at http://burgessforen- bachev. How often do you think cases
From the above, what are signs
sics.com/articles.php and are impacted by false claims of
that those claims are false?
on YouTube. The company mentor stu- ‘losing data/files’?
dents and entrepreneurs From a forensic perspective, a
I am deposed and quali- in Santa Barbara and San Happens all the time. I don’t have sign that the claims are false are
fied as an expert witness Luis Obispo Counties, for a particular statistic on it, but a when the data exists, as it often
in State, municipal and Californian Polytechnical significant percentage of cases does. Pretty much all documents
military courts, and labor Institute students, as well I take include recovering lost start on a computer. The making,
boards in California and as for local high school data – whether done purposely editing, printing, and otherwise
Texas. teams. They also partici- or accidentally. In many cases, accessing these documents,
pate in Startup Weekends in the user doesn’t even know that leaves many unnoticed and
Santa Barbara and San Luis such data existed. In others, invisible traces behind. Forensic
Obispo Counties – mentor- there are outrageous actions techniques can bring those
ing, coaching, and judging. that intentionally try to lose the documents or artefacts to
data. surface.
Are there any regulations which There was one case where we and suck everything off of it.
can block the process of you had only a scanned document Various jurisdictions limit what
and your team locating deleted that was purportedly a printout can be reviewed because our
files? of an email. It was hard to find whole lives might be on there.
what was underlying it, until Because it just fits in our pocket,
Not regulations so much as we noticed that the time/ we often don’t realize we’ve
agreements between the date header said PDT (Pacific got a portable supercomputer
parties. Typically, in order for Daylight Time) on a date that with large amounts of storage
the team to be allowed to was actually in PST (Pacific that we’re carrying around with
investigate, the parties involved Standard Time). us. My iPhone holds more than
agree to a stipulation that limits 25,000 times the data of the first
the team to specific types of With added concerns of hard drive data recoveries I did
searches or procedures. If the cybersecurity and data at the beginning of my career.
devices containing the evidence placement, can you share what
are instead ordered by the you predict you will be instructed I would say that mobile devices
judge to be produced, there still on in Courts? are involved in more than half of
are likely to be limits to what we the criminal defense cases I see CONTACT
can search for. In some cases, Generally, we are instructed to these days. Burgess Consulting
we are required to act as the dig deeper to find what may and Forensics
gatekeepers of the evidence, have been compromised. And of course, a philanderer 3421 Empresa Drive,
producing only responsive data Computers contain many may have the names, Suite B, San Luis Obispo, CA
no matter who has hired us or logs that are helpful in putting phone numbers, photos, and Tel: 866-345-3345
is paying us. If additional data together a picture of what conversations with his or her 805-349-7676
is drawn out besides what was happened. There are records extracurricular love interest steve@burgessforensics.
required in the stipulation, there of successful remote logins and sitting right there, inches away com
is a “clawback” provision that of unsuccessful remote logins. from their spouse. It doesn’t
keeps it out of evidence. There may be IP addresses take much to review all of that
embedded in malware install incriminating – and often racy –
You have worked on cases files that have been deleted information.
determining fake documents: but are recoverable. There may
how is this determined? How also be IP addresses embedded What does the future hold for
can such a result impact legal in remote access logs or VPN digital forensics and testimony?
cases? (Virtual Private Network) logs.
And of course, there’s malware I think we will see smarter and
In many cases, one side will galore. smarter programs automating of forever, so more advanced
present electronic evidence more and more of the process of tools are necessary.
that is only a purported scan or Are phones and mobile devices discovery. Artificial intelligence
printout of an email or another a significant part of your work? will make inroads into the tools But pressing a button isn’t all that
document, without providing we use. is involved. The expert witness
the underlying actual electronic Yes. More and more over the will need to understand the
evidence. We forensic guys past 10 years, mobile devices When I began in this career, underlying operating systems
barely consider that to be are significant parts of evidence, everything was manual – we and structures, how the forensic
evidence. The underlying especially in Criminal Law and had to search for individual programs derive their results,
headers of email contain Family Law. letters and punctuation across and to be able to explain
Message IDs and the names 10 million bytes. But hard drives them in simple enough terms
and IP addresses of the mail It’s easy enough for an officer now hold trillions of bytes and for attorneys, judge, and jury to
servers traversed on the way to grab a phone from a suspect a manual search of modern understand. I expect we’ll have
from sender to recipient. Tracing and take it to a local FBI or storage devices and complex human experts in the courtroom
these back can show fakery. local law enforcement kiosk data structures would take half for a long time to come. LM
We speak to one of
the most experienced
chartered surveyors in
the UK specialising in
the horticultural industry,
Simon Quinton Smith.
He speaks with Lawyer
Monthly about the
CHARTERED SURVEYING
Simon Quinton Smith, Quinton Edwards
importance of hiring
an expert with notable From your experience, when from the Internet (i.e. the Land presents any other unique
experience in the dealing with proceedings Registry) and we identify that aspects than other specialist
specified industry, in order regarding rent reviews and a lot of them are actually deals areas. I do not believe that the
to avoid unsatisfactory lease renewals, what are the that I have previously transacted. majority of Chartered Surveyors
common issues which arise? In some instances, people have
and erroneous results. who undertake valuations within
used evidence of deals that
my specialist sector should be
In my experience, I often deal were never completed, where
doing so. They are not doing
with surveyors who do not we have had properties or
have specialist knowledge transactions, they don’t have
businesses on the market, and
which sometimes makes the they have not sold. the evidence and, accordingly,
job more difficult; it is easier they do not really know what
once they realise the current The problem they have is that they are doing. I personally
situation, once I have shared they may know that a garden would not undertake valuations
the knowledge and experience. centre sold for £X, but they do outside my specialist sectors
not know how to devalue it such as care homes and petrol
What can those involved in the between the land, infrastructure, stations.
disputes do to avoid these issues buildings, trading potential, etc.
in the first instance?
Your valuations are based on
I find that when I come up
comparable evidence which
Those involved in disputes should against district valuers for
always employ a specialist, negotiations for tax, compulsory goes back many years: can you
someone who knows what they purchase, etc., who may have share how this helps during all-
Simon Quinton Smith are doing and has access to been intransigent when dealing important court cases?
My name is Simon Quinton detailed comparable evidence, with surveyors with insufficient
Smith and I trade as Quinton rather than hiring chartered knowledge, and I provide them Having hard comparable
Edwards, the trading name surveyors who say they know with my CV and list of notable evidence of deals that I
of Quintons (Commercial) what they are doing, but do not achievements and hard personally have transacted
Limited, specialising in actually undertake sales, lettings comparable evidence of which makes all the difference in the
providing property and and acquisitions. I have personally transacted,
Court believing my opinion
business advice to the they often capitulate and
over those of another surveyor
garden centre, horticulture With your specialism in the accept that the evidence
who has not undertaken the
and farm shop business horticulture sector, can you which I have put forward is
expand on how others who indeed correct. transactions and thus cannot
throughout the United
do not specialise in this area explain the market to the same
Kingdom and a little into
may not be in tune to solve the It would appear that whether I degree I can.
Ireland and Europe.
challenges presented in this am in Court or negotiating with
area? parties who have no detailed There are instances where Expert
Contact knowledge of my specialisms Witnesses have to base advice
Simon Quinton Smith We regularly come up against that the information that I on their experience rather than
Email: simon@quintons.co.uk our peers in the industry who provide holds considerable hard evidence and because I
Office: 01635 551441 either (a) say they cannot find weight.
Mobile: 07785 732460 have only specialised in garden
any hard evidence because it is
centres, horticulture and farm
either off-market, or it has been From this, what unique aspects
shops since 1986, rather than the
done by one of the very few does the horticulture sector
surveyors such as myself (and I present in regards to valuations majority of other surveyors who
do not share my evidence with and rent reviews? will have a much wider spread
anybody); or, (b) they try and of work, my evidence usually
use evidence either gleaned I do not think that horticulture holds more weight. LM
Handling a variety of ex-

pert witness cases, includ-
ing patent disputes, inter ENERGY LAW
partes review of patents, Harold E. McGowen III, Navidad Energy Advisors
equipment failure, opera-
tional negligence, trade Why do the aforementioned greatest return on investment Attorneys with a thorough under-
cases arise? should make for a stronger and standing of the business objec-
secrets, damages mode-
more valuable patent. We have tives of the parties will work to
ling and oil and gas com- Different types of cases arise for often seen patents that are de- create fair and equitable con-
mercial litigation, Harold different reasons. Patent related signed to cover the largest pos- tracts that are practical to im-
E. McGowen III shares cases typically arise due to the sible number of embodiments, plement over the course of time,
more about why these infringement of a patent, by ei- but in the process, they become can help their clients avoid litiga-
ther the plaintiff or the defend- vulnerable to attack through tion in the future. Vague and/or
cases occur and what he
ant. Trade secret cases typically the prior art. Navidad Energy poorly written win/lose contracts
predicts is in the pipeline
arise due to the alleged misap- Advisors can assist in the process provide fertile ground for future
for the petroleum field in propriation of a trade secret by of assessing the marketplace for litigation. Moreover, many po-
the upcoming years. a third-party. a particular patent idea so that tentially lucrative deals have
the patent attorneys can take been killed by the introduction of
Equipment failure cases typi- into account the most valuable complex and inequitable terms
cally arise from incorrect equip- applications for the invention that only benefit one party.
ment specifications, lack of pre- when drafting the patent.
ventive maintenance, cyclical How do you expect the field
fatigue, or alleged negligent Contractual indemnification of petroleum engineering to
engineering design that results and other limitations on liabil- change in the next few years?
in a catastrophic failure. ity related to equipment failures How do you predict this will
is probably the best defense change the types of disputes
Operational negligence cases against equipment failures in you will see?
arise from mistakes made by the field. Also, equipment man-
personnel in a drilling, comple- ufacturers and vendors should The industry will have to become
tion or facilities construction carefully document their quality more and more efficient as the
Harold E. McGowen III
operation in the field. We also control and quality assurance sweet spots within existing oil
My name is Harold
use our engineering economic methodology and provide suf- and gas plays are drilled up and
McGowen, and my firm is
analysis and big-data analysis ficient technical support and the less productive adjoining
Navidad Energy Advisors,
techniques to generate defen- training for end users. acreage is developed. This will
a registered professional
engineering firm in the state sible damages models. require improved efficiency that
of Texas. We specialize in For trade secret cases, employ- can only be obtained through
petroleum engineering Oil and gas commercial litiga- ers should make sure that their more innovative and sophisti-
related projects with an tion cases typically arise from a employees understand what cated technologies, processes,
emphasis on horizontal disagreement related to a busi- trade secrets are, and the rami- materials and procedures. I ex-
drilling, hydraulic fracturing ness transaction or contractual fications of misappropriations of pect to see intense competition
and related downhole tools, relationship between oil and trade secrets. Many personnel in related to intellectual property
processes, and equipment. gas operators, mineral interest the oil and gas industry do not across the entire spectrum of
owners, or between an oil and have an accurate understand- the oil and gas industry from
gas operator and one or more ing of the seriousness of trade geophysical acquisition through
Contact
service companies. secret misappropriation, or even drilling, completion, production
Navidad Energy Advisors
16421 FM 344 West what types of information are and transportation. I also expect
Bullard, Texas 75757 What are the vital regulations defined as trade secrets under to see patent and trade secret
Phone: +1 (844) 628-4323 and requirements clients must the law. cases related to the applica-
hmcgowen@navidadenergy.com
meet in order to avoid such dis- tion of big data in AI to the oil
www.navidadenergyadvisors.com
putes? In my experience, a significant and gas industry. Navidad En-
amount of commercial litigation ergy Advisors has a strong back-
In patent related cases, a thor- in the oil and gas industry is re- ground in the application of da-
ough analysis of the prior art and lated to poorly drafted contracts tabase technology in the oil and
narrowly focusing the patent that are not easily understood by gas industry, therefore we are
application on the embodiment personnel with the responsibility well positioned to assist clients in
which is likely to generate the of adhering to those contracts. these matters. LM
A Fair Hearing in
Healthcare
Hard of hearing? What
can the NHS do to avoid
OTORHINOLARYNGOLOGY
Mr F Javed Uddin, Ear, Nose and Throat Surgeon
litigation and why are
cases common? Dr Uddin
What do you think makes a realised they could claim patient journey. They may meet
treats ear, nose and good expert witness? compensation for prolonged a different doctor on each
throat conditions and exposure to occupational noise appointment and only see their
speaks with us on his role I believe that there are two damage. The current situation consultant surgeon once – on
key prerequisites: knowledge is much better. There is now the day of their operation. This
as an expert witness.
and experience. Knowledge is legislation and all employers are is not ideal nor good practice.
essential to understand the field required to provide protective In the current climate, there
and practice as a specialist, measures. are also many delays and long
which is also a requirement for waiting lists, so the patient
becoming an expert witness. The second group of patients may already be frustrated
Experience is also indispensable are those that undergo surgery
with waiting times. In private
as, undoubtedly, an individual where complications have
practice, however, the doctor
with many years of experience arisen. The nature of surgery
and patient build a unique
is likely to be a better expert is that there are inherent risks,
relationship. The patient’s first
witness than someone with less but doctors are dutybound to
appointment is followed through
experience. However, there is a follow the guidelines set out by
by the same professional that will
caveat in that senior clinicians the general medical council.
are not always as up to date conduct the surgery and review
They must always ensure that
with the latest literature and patients have given informed them following their operation.
Mr F Javed Uddin A level of trust is established,
advances in their field. consent and are aware of the
Javed Uddin is a consultant
potential risks and benefits so that if a complication was
ENT surgeon in Leicester and
Although medicine and of the procedure. There are to occur, the patient, possibly,
has been practising as a
technology continue to two groups: common risks may be less likely to complain.
consultant for 7 years and
develop, the advantage and significant risks. One of However, within the NHS, there is
doing ENT since 2001. He
of experience is that when my areas of expertise is sinus less of a rapport established with
was awarded the prestigious
confronted with difficulty, the surgery; the risk of breaching a particular doctor and patient,
Gold medal from the Royal
years of experience allow one to the thin bone that separates the hence patients may be more
Society of Medicine for his navigate through the problem. sinuses from the eye or brain, prone to complain should there
performance in the national Hence, in summary, a mixture of for example, is very small. But be an adverse outcome with
final surgical exams prior to knowledge and experience will it is so significant if it occurs, their care.
his consultant appointment. prove to be most beneficial. that it would be negligent not
to mention it. Even though the In order to avoid litigation, the
What are common cases ENT consent process is rigorous, NHS needs to look at this key
Contact expert witnesses see? when rare complications arise, aspect: continuity of patient
Mr F Javed Uddin patients can and do complain care. Another factor to consider
Ear, Nose and Throat Surgeon Two categories come to mind: and claim compensation; is that the younger generation
BSc(Hons), MB ChB(Hons),
the first group are patients with that is where an expert witness
FRCS(Eng), FRCS(ORL-HNS) is generally more aware of their
www.leicesterentsurgeon.co.uk noise-induced hearing loss, and may get involved - to analyse
rights, potentially more litigious
the second are those who have where the complications arose
and perhaps less accepting of
had complications following and if these were potentially
mishaps.
surgery. preventable and whether there
is a case of negligence.
The key to avoiding legal
Noise-induced cases were
disputes is good, safe medical
prominent in the past as prior to In your opinion, do you think
practice and to keep the
the Noise Regulations in 1989, there is anything the NHS could
there were no requirements change, in order to make patient at the centre of what
for employers to protect their medical-related disputes run you do. It is acknowledged
workers from excessive noise. smoother, or for them to be that there are challenges and
The cases from the 1960s and avoided? pressures in the NHS, but every
1970s did not come to the legal patient deserves nothing less
field until a few decades later, Due to the pressures within than excellent care. I believe it
so in the 1990s, there was an the NHS, a patient may see is with this culture of excellence
explosion of medicolegal cases, different medical professionals that the medical profession can
where previous employees at different grades in one minimise the risk of litigation. LM
Legal
Ladder
Climbing your way up the legal profession is not an easy trek. The legal world is,
unfortunately, renowned for being a tough industry to crack, but of course, the good
things in life do not come easy.
Where our readers have perseverance and motivation to conquer the legal profession,
Lawyer Monthly aims to make the journey into the profession as easy as possible. This
section will feature advice articles on how to go from Paralegal to Partner and key
aspects to know in order to work your way up the profession.
We will speak to established professionals, and Lawyer Monthly will seek to find the
answers to all the questions you constantly ask; from: ‘How do I establish myself in
corporate law’, all the way to ‘What do I do after graduation?’, we hope Legal Ladder will
push you up one step further to success!
56
THE LEGAL LADDER:

5 SIMPLE MISTAKES LAW STUDENTS MAKE
Studying law isn’t just about the assignments and grades, but let’s face it, they are an important
part of the law degree. Most law students are keen to get the best grades to demonstrate their
abilities and help in their future career.
Here, Emma Jones, Senior Lecturer in Law and member of the Open Justice team at The Open
University, lists five common mistakes that law students make in their assignments which can
easily be avoided.
1. Not reading the question ally contain the key points on will a useful checklist for your detail. Make sure you use the
properly. a topic, and perhaps suggest answer. You can include the full word count to provide as
It may sound obvious, but it is some other sources to read. main topics, key points and much depth as possible.
amazing how common this If you have a set textbook arguments and relevant ex-
mistake is. Sometimes students for your course, you should amples. You can also make Another important point is ref-
are so keen to get on with re- always read the relevant sec- a note of the format (for ex- erencing. Putting in citations
search and writing they don’t tions/chapters too, as they will ample, introduction, main will show your marker that you
spend long enough to un- add depth to your writing. body and conclusion for an have used appropriate sourc-
derstand what the question is essay). That means that when es. It will also demonstrate that
actually asking for. Other times When looking at other sources, it comes to drafting your an- you understand academic
they focus on one aspect or it is important to remember that swer you can really focus on conventions. Most importantly,
idea and fail to see the big- lots of information on the inter- getting your writing as clear it will avoid any problems with
ger picture. This means it is re- net only offers a brief summary and appropriate as possible, plagiarism.
ally important to build in time and is unlikely to be appropri- to fully demonstrate your un-
ate for legal study. Peer re- 5. Repeating, not reasoning.
to read the question carefully derstanding.
viewed journal articles tend to Often students will repeat an
and analyse what it is looking
be the most reliable source of Another bonus of making a argument from a textbook or
for.
further information. However, plan is that you can appor- journal article in their work. This
One approach that can be even then you need to check tion word count per section can be helpful and relevant,
useful is to identify “process” the date and that it is discuss- and/or topic. This means you but just because it is given in
words (such as “discuss” or ing the correct jurisdiction! can write to the word count, an academic source doesn’t
“explain” or “evaluate” and rather than having to edit your make it right. It is important
also “content” words (the As a general rule, you also work down at the end. Often to ask questions about it, for
words or phrases identifying need to avoid relying too this can make your work flow example, how reliable is the
the key topics to be looked heavily on any one particular better, whereas cut and past- source? How strong is the ar-
at). Then spend some time en- source. This can suggest to ing and deleting words can gument? What evidence has
suring you know what each of whoever is marking your work make your writing feel a bit been given to support it? What
these words or phrases means. that you haven’t done wider disjointed. are the counter-arguments?
Doing this ensures you don’t research (or that you haven’t Doing this type of critical think-
miss anything. understood how to use it prop- 4. Not showing what you ing will enable you to include
erly). Try to get a balance in know. more of your own reasoned
If you are given additional the sources you draw on to It is common for a student to opinion in your work. If you go
advice or guidance on the show you have fully utilised say that they understand a into the legal profession, you
question and/or provided with them. topic, but that they are strug- will spend a lot of time devel-
learning outcomes, research gling to put what they know oping arguments, so it’s im-
hints or similar, it is important 3. Failing to plan (and plan- into words. It is really important portant to get the practice in
to read these thoroughly too. ning to fail!) to make your writing as clear during your degree.
They will be there to guide you Often students will say they as possible to make sure you
on what to include so it’s vital were in a hurry or they were demonstrate your knowledge The mistakes above are com-
to make the most of them. eager to get started, so they and understanding. Using mon, but they are also ones
moved straight from research- short sentences, constructing which can be easily avoided.
2. Not doing the research ing into writing their answer. appropriate paragraphs and Reading the feedback from
Usually, an assignment will re- Doing this means that you are proof reading your work care- your previous assignments
quire you to do at least some having to focus on getting in fully can all help with that. carefully and preparing
independent research. Skip- the right content and on your some form of checklist for as-
ping this step will mean your format and writing style all at Being over the word count signments drawing on these
assignment is less detailed and once. This makes it almost im- was mentioned above, but points, and others raised by
may even feel a bit basic or possible to give each element being under the word count your markers, can all help
shallow. A good starting point your full attention. can be just as problematic. you to demonstrate your abili-
for research is your lecture and It can mean you haven’t de- ties as fully as possible in your
seminar notes. They will usu- Doing a plan provides you scribed something in each work. LM
57
THE LEGAL LADDER:

HOW DO I GET A CAREER IN LAW?
People pursue a career in law for all kinds of reasons, as well as aspiring to different end goals.
From wanting to uphold court as a judge to helping people with medical negligence claims,
there are all kinds of jobs within the sector. Whatever your dream job is, you’ll be helping so many
people from so many walks of life.
Of course, you’ll need a plan of action to get there. Keep reading to find out how to attain a
career in law.
GCSE levels applicants as you’re already the personal preference of after your intermediate
The earlier you start planning, familiar with the subject – so the budding law learner. apprenticeship if you decide
the better your chances. make sure that you meet the not to go down the A-Level
GCSEs will be the foundations university’s requirements. Heading to university route after completing your
of everything and will allow At university, you can start to GCSE studies.
you to progress and climb Going for an Intermediate narrow down on your specific
higher on the law ladder. Apprenticeship field of interest. Depending Consider a Solicitor
Achieving good grades at If you don’t want to pursue on the preference of the Apprenticeship
GCSE level will show your A-Levels, you can go for an student, to have a career If you’re itching to get into
determination and work apprenticeship. This route to in law, you can either study the working world, this
ethic, making you more likely a career in law is seemingly a law degree or non-law one is for you. A solicitor
to benefit when deciding becoming more popular apprenticeship is a paid six-
degree – although those
which next path to go down: among young people.
who decide to study a year course which will enable
A-Levels or an apprenticeship Although there are specific
non-law degree will face you to gain on the job training
scheme. requirements for you to take
the hurdle of studying the which you will later receive a
this path, anyone looking
seven foundations of legal qualification to become a
After GCSEs to do an intermediate
practices, a GDL, so when solicitor and at the end of the
With your GCSEs done, you apprenticeship must have
it’s combined with a non-law fourth year, you will receive
can either progress with the minimum of five GCSEs
degree, it’s equivalent to a a law degree. To be in a
you’re A-Levels or seek an (although more may be
law degree. chance of winning a place
apprenticeship programme. required depending on
on this sort of scheme, you
This can be a tough decision the firm) that are graded
Exploring a Paralegal usually need the minimum of
to make once you’ve from A*-C or anything
Apprenticeship five GCSEs graded A*-C and
received your results – and equivalent. The benefit of
You aren’t limited to just three A-Levels (graded C or
if you’ve followed our first apprenticeships in this field
university after your A-Levels. above). Work experience
stage and gained incredible is that students are able to
After completing your always plays in favour with
grades, your doors are wide work in the real environment
A-Levels, this 23-30-month candidates that apply for
open with opportunity. with qualified professionals,
course could be the perfect this type of apprenticeship.
whether this is assisting on
Going for A-Levels route for you. Although this Once this apprenticeship has
cases in administration
If you opt for A-Levels, you’ll is a brilliant opportunity as ended, you are a qualified
or meeting with different
need to continue to aim for it is, it can then lead you solicitor, legal executive and
clients. Intermediate
the top grades. Usually those onto training to become a paralegal.
Apprenticeships usually run
who study A-Levels progress Chartered Legal Executive.
for two years and will help
onto university to advance To participate in this type Academic routes
develop the skills of those
themselves for their career of scheme, usually you are Let’s look at the academic
who gain their place in the
in law.If you choose this required to have the minimum route now. Once you’ve
office.
route, there are some top of five GCSEs grading A*-C completed your law degree
tips that you should know. With A-Levels… and three A-Levels that are (or equivalent with GDL),
Some universities prefer that Upon finishing you’re graded C or above – or the there are three different
you study traditional subjects A-Levels, there are a few equivalent. You will be able routes that you can go down
at A-Level such as history, different routes you can to learn law, legal practice, depending on what position
languages or literature – go down. These include legal skills, commercial skills you want to have: Barrister,
studying law at this level is university, a paralegal and professional conduct Solicitor or Legal Executive.
not always a requirement apprenticeship or a solicitor by entering this type of
for doing this subject at apprenticeship. There is no apprenticeship. It is also worth Continue reading at
university but it might put you right option, picking one of knowing that you can do a www.lawyer-monthly.com
in a better position than other the three should be down to paralegal apprenticeship LM
58
THE LEGAL LADDER:

THE RISE OF THE LEGAL FREELANCER
The legal profession is undergoing significant change – the way that people work; their priorities
and other factors have meant that more lawyers are looking to work on a freelance basis – a
business model which has been prevalent in other sectors, is now increasingly becoming a real
and better alternative to private practice in a traditional law firm.
Here Bhavini Kalaria, the founder of The London Law Practice, a firm operating with a network
of consultant solicitors and lawyers, explains the factors she believes have led to the rise of the
legal freelancer.
and leave the headache of
taking on insurance and the
problems associated with
closing down a practice to
others.
Being a partner in a prac-

tice is just not that attractive
– from both a commercial,
regulatory and life-style per-
spective.
Freelancing gives a level of

control over both the flow of
work, the value on your own
time, and also the level of risk
you take on, whilst maintain-
ing the ability to build and
look after your own client
"I started as a sole practition- she wished to offer to her brought about by regulatory base.
er initially because as a sin- clients, and who were keen and commercial pressures.
gle parent with a small child, on work which fitted around No doubt, as further changes
normal legal practice just their own personal circum- As the legal market has be- are brought in by the SRA
didn’t work for me. As an ex- stances. come increasingly de-reg- (which is looking at allowing
perienced practitioner, there ulated and traditional high individual lawyers to prac-
were limited opportunities to At the same time, when the street practices have had tice in unregulated firms)
advance my career and bal- firm started, cloud-based their monopoly on certain the choice of how to work,
ance child care." systems and technologi- areas of practice removed who to work with and the
cal changes meant that – there are more and more
individual solicitor’s ability
It quickly became apparent expanding the number of people who don’t feel that
to build their own personal
to Bhavini, having spoken areas of practice by increas- there is any security or cer-
brand and value will mean
with other female practition- ing her network of lawyers tainty in becoming succes-
that freelancing will continue
ers who had taken time out was more than feasible. The sors or taking on partnership
to be increasingly a better or
after maternity leave, that ability to work securely and in traditional practices. The
best choice option for solici-
there were many who were from outside an office, has commercial incentive is no
tors.
looking to find a way back only increased as systems im- longer there and the way
into practice, but didn’t want proved. that people buy legal servic-
the restrictive working prac- es has changed completely. The rise of the freelancer is
tices of full time employment. Bhavini also observes that it Instead of taking on historic not just about technological
As her firm grew, she started isn’t just the ability to work in liabilities, younger entrepre- change – it’s fundamentally
working with freelance prac- a dispersed way, which has neurial lawyers would rather about personal choice, com-
titioners who were able to changed – but also the real build a client base in a firm mercial change and regula-
provide the kind of service pressures on the high street like The London Law Practice tory pressures. LM
59
THE LEGAL LADDER:

THE IMPORTANCE OF NETWORKING IN
THE LEGAL INDUSTRY
Whether you’re a student just getting to grips with the legal sector, or you’re an experienced
lawyer with plenty of links already, networking day in day out is vital to your career’s success in
the legal industry. Here, Francine Ryan, lecturer in law and member of the Open Justice Centre
at The Open University, explains why.
‘It’s not what you know, it’s who you know….’

While this statement is not Sometimes when we are What events should I attend? sites offer affordable options.
strictly true, developing a nervous we start talking and To build your confidence The advantage of presenting
network of people that can don’t know when you to you can start with university your business card is that
support you in your career stop! Make sure you let the events such as graduate you should get one in
is important. If you pursue other person speak, don’t recruitment fairs, practise return. A solid handshake
a career in law, your firm talk over them and don’t what you are going to say is incredibly important- firm
will expect you to network, just talk about yourself. beforehand, prepare a 30 and dry! Perfect the perfect
and it’s never too early to second elevator pitch, keep handshake by practising
But also remember it’s not
start building a network of it simple- who are you and with your friends- you need
an interrogation, don’t
professional contacts. The perhaps what area of law the right amount of grip,
relentlessly fire questions- a
idea of networking may fill you are interested in. Attend don’t squeeze too tight
good conversation makes
with you terror but it’s not any events arranged by
the other person feel you are you are not trying to break
as difficult as it might first your student law society, law
interested in them and want someone’s hand but don’t
appear. school or careers service also
to continue talking to you. make it all pathetic and
check the Twitter feed of law limp. You will be judged on
What is networking? firms, the national and local
Where do I start? your handshake, there is an
Networking is the process law society as they may also
art to effortlessly shaking
of speaking and interacting First make a list of all the post events. Always do some
hands whilst making eye
with people to develop contacts you already research: look at websites,
contact, smiling and clearly
professional contacts and have, this could include Twitter feeds and LinkedIn
introducing yourself.
relationships. It involves family members, family profiles- this will make you
chatting to people at friends, university staff and more confident when
After the event
events, exchanging your employment connections. speaking to law firms and
Follow up any contacts -
contact details and Get in contact with them, help you recognise people
connect on LinkedIn and
developing connections ask them to share their in the room. Think about
send them an email the
within your existing networks. experiences and any advice what you are going to wear,
Remember that… next day, explaining who
they have. If you are lucky, make sure you’re dressed
you are, how you met and
they might even suggest appropriately; you want to
What skills do you need to thanking them for their time.
people in their network you create a good impression.
be a good networker? It’s good to get lots of Start building a strong profile
could talk to. Speak to your on LinkedIn, keep it up to
It starts with having the practise, if you’re successful
university’s careers service, date and stay in touch,
confidence to approach in obtaining a summer
see whether they have a with your university and law
people and engage vacation placement or an
mentoring scheme and school friends they are an
them in conversation. You interview with a law firm,
investigate what careers invaluable network and
need to be able to build a you are likely to be asked to
rapport with lots of different support they offer, this may source of information as you
attend a networking lunch
people from a variety of include sessions on how or evening event. progress in your career.
backgrounds and make to network. If you haven’t
them feel comfortable already, join the student How to be successful at an Networking can appear
sharing information with you. law society this is a great event daunting but with plenty of
You need to be an effective opportunity to build your Think about having some practise you can develop
communicator by speaking network of student contacts business cards printed, they the confidence to approach
clearly and confidently and find out what events are don’t have to be expensive, people and build your
but you also need to listen. being planned. Vistaprint and Moo or similar network. LM
17 TH
MAY 2019 | OLYMPIA, LONDON
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Lawyer Monthly is pleased
to bring you our reader’s
favourite feature: Thought
Leader. In this section you
will find interviews and
articles from numerous
leaders in the legal
practice, people who
have worked hard in
their professional life and
achieved their success by
pushing the boundaries of
their according sectors.
You will hear about new

legislation, the hottest
talking points in each
sector, and the ins
and outs of where that
sector is heading, from
a legal perspective. Our
interviewees, as thought
leaders in their profession,
are intentional about
setting precedents,
challenging the status-quo,
and exploring the legal
realm of their specialisation
to the finest details.
We’ve been asking our

guest interviewees what
their vision for their sector is,
what courts and lawmakers
could be doing better, and
overall, about how their
said sector has evolved
throughout their years of
practice.
In our May edition, we

discuss why pension
fraud is so common with
Ben Fairhead at Pinsent
Masons, as well as the
foreign investment scene in
Brazil with Leandro Luzone.
62 Thought Leader
Thought Leader MAY 2019
Luca Daffra and Sergio Passerini, Ichino Brugnatelli e Associati
THE GIG ECONOMY

THE GIG ECONOMY COMPLEX: WILL WE EVER FIND A WAY TO MAKE IT WORK?
Via Mascheroni, 31 - 20145 Milano | Tel: 02.4819.3249 | Fax: 02.48100.102
Email: luca.daffra@ichinobrugnatelli.it / sergio.passerini@ichinobrugnatelli.it | www.ichinobrugnatelli.it
From the definition of Gig Economy to the claims of its believing that the strong socio- obligates the workers to make
protagonists: on one side, is the convenience of home economic dependence that the deliveries that are forwarded
binds them to the platform to them during the time of
delivery which has become customary, and, on the
makes it unfair to exclude them availability that they previously
other, the claim of decent wages and safety at work. from the typical protections indicated and that the chief of
Courts all over Europe are increasingly discussing granted to workers under the fleet has approved (there is
gig worker issues, resulting in outcomes that are not dependent employment. no longer, as it used to, a system
always consistent. for awarding time slots). At the
Before focusing on the topic, time (co-)decided, the worker
let’s have a look at the data will have to go to one of the
regarding this phenomenon. starting areas, predetermined,
Firstly, what do we mean by the algorithms, that the orders of the According to various reports activate the app of the platform
gig economy? thousands of users registered in 2018 (McKinsey data), in
It is the so-called “economy of to the service are coordinated (which entails localization), and
the United States and Europe,
odd jobs”, i.e. those activities, and processed centrally. wait for the order. Each time a
the gig economy industry is
usually occasional, that have delivery request is sent to the
expanding rapidly and, to date,
always been carried out on aside From the development of such rider, the latter is completely free
provides a job to about 2.5% of
the main occupation, either to platforms and applications for to accept it or not, however, if
the total employed population.
“round up” a monthly wage, smartphones, a new type of the request is accepted, the
In Italy too, the phenomenon
or by a student or someone work was created, which rather assignment will have to be
is well present, even if slightly
without a fixed occupation, etc. than “on call” could be defined carried out within a determined
below the average, affecting
We are talking about services as “work noticed via app” or, number of minutes.
about 2.03% of the employed
that can range from home simply, “on demand”. On the (DeBenetti-INPS data). If it is
delivery to babysitting services, one hand, you can order almost In regards to compensation, on
interesting to note that only 12%
from the use of your car as a any kind of food and other the other hand, according to
of these are riders, it must also
taxi, to private lessons. goods from your sofa, yet on case studies, both hourly fees
be said that for 25% of Italian gig
the other hand, all you need is and variable fees are used
workers, work on demand is the
The gig economy, hence, owes a bike and a smartphone and depending on the deliveries
only source of income.
its name to the sporadic and you can become a rider and made, and, frequently, some
extemporaneous performance respond through the app to that How are the contracts for gig systems of remuneration are
typical of these types of jobs, particular order. workers and, more specifically, used which combine the two
since “gig” is a term used to for riders structured? factors.
indicate small and improvised This management method, These relationships generally
musical performances, suitable for converting a large take the form of coordinated Finally, a rider has to declare that
which usually are rendered number of requests on few and and continuous collaborations, they have a mean of transport
without a specific frequency large managers, has ended up although it is not uncommon to make deliveries (which can
and especially without any questioning the very essence for such relationships to be be a bicycle, a scooter or a
obligation of service. of the “odd job”; i.e., it soon declined under other types of car) and a smartphone with
becomes a reoccurring job, self-employment; the common adequate internet connection,
The revolution of the last few given that the keenest gig feature of all contractual texts while the safety devices and
years - which has sparked a workers may receive even a on the subject is, in fact, the transport equipment are
debate on the potentials and significant compensation in express exclusion of any form of generally leased.
criticalities of the development return of their work. Similarly, the subordination of gig workers in
of this sector – is due to the fact substantial stability of the rider carrying out their activities. What are the actions respectively
that large digital platforms have - app relation has led to strong taken by gig economy actors in
taken over the management criticism of the classification of In the case of riders, in particular, Italy, and what are their claims?
of “gigs”, and it’s through their gig workers as self-employed, the contract text normally One of the most critical issues
MAY 2019 Thought Leader 63
was, right from the start, the legal exception of some minimum
qualification of gig workers and, social security protection).
in particular, of riders, given that
they were contractually framed As it was logical, most of the
as self-employed workers. claims made by the riders were
Reversing the point of view, a aimed at obtaining recognition
question arose: whether - and of their job as dependent
to what extent - food delivery employment rather than self-
companies, in their essence employment, with arguments
as digital platforms, should be aimed at demonstrating
considered, from a labour law their submission to the typical
standpoint, as mere principals or managing, organisational, the riders have invoked the were free to make available the
real employers. and disciplinary powers of the application of Article 2 of various work slots offered by the
employer. The riders, in fact, Legislative Decree no. 81/2015. company and that, in the event
The Italian legal system states - claim that their performance is Under this provision, introduced of refusal (which could also be
unlike, for example, the Anglo- essentially determined by the in 2015 by the much-criticized the case for the actual failed
Jobs Act, the application of the appearance), they were neither
“
entire corpus of subordinate obliged to justify themselves nor
AS FAR AS SOCIAL SECURITY AND labour regulations has been

imposed on those self-employed
to seek a replacement.
SAFETY AT WORK ISSUES ARE CONCERNED, IT workers whose activity results However, if the judges at first
in “exclusively personal, instance agreed to reject the
IS ESSENTIAL FOR THE LEGISLATOR THEMSELVES continuous work performance riders’ claims in their entirety, the
”
TO INTERVENE and whose execution methods
are organised by the client also
Court of Appeal, while excluding
the subordinate nature of the
with reference to the time and relationship, reformulated the
Saxon system – that there are manager of the food delivery place of work”. The so-called previous decision of the Court of
only two different types of service, which establishes the “hetero-organised” worker Turin by recognising the “hetero-
workers, those employed under priority of orders to be met, remains always formally and organised” nature under Article
article 2094 of the Civil Code the path to follow, the timing substantially a self-employed 2 of Legislative Decree no.
and the self-employed under for delivery (managerial- collaborator but, given the 81/2015 of the service provided
article 2222 et seq. of the Civil organisational power), and nature of their bond with the by the riders.
Code. Unquestionably, this they also complain about their client (evidencing almost
second class comprises both submission to an evaluation by certain economic subjection), The coordination is found in the
hetero-organised collaborations the algorithm in relation to their the Legislator considered it fact that it is the platform that
under article 2 of Legislative loyalty, speed and reliability, necessary for them to have determines the possible shift
Decree no. 81/2015 and the from which they would derive access to the guarantees to be observed, the meeting
“coordinated and continuous” different priorities on the provided for employees. points at the beginning of the
ones under article 409 point 3 allocation of deliveries and shift, the maximum delivery
of the Code of Civil Procedure. availability times (organisational- Is there any jurisprudence on the times; this would put in place
It would be out of the scope disciplinary power). matter yet? precisely the situation described
of this article to go through the Since last May, a total of three by the aforementioned rule,
abundant jurisprudence relating For the food delivery giants, decisions of the Italian judiciary which requires the application
to the distinction between the on the other hand, the service on the subject have been taken, of the discipline of employment
two cases. It is sufficient enough is rendered by self-employed two by first grade Courts (Turin of collaborations for which the
to consider here that only the providers, given that the rider and Milan, with judgments given place and time of the service is
first type of workers – whose is not required to respect a respectively on 7 May 2018 and coordinated by the client.
work activity is “directed” by the certain hourly presence, nor to 10 September 2018) and one
employer - are entitled to all the guarantee a certain minimum by the Court of Appeal of Turin In practice, this has led to the
protections deriving from over 50 availability, just as there is no (judgment of 11 January 2019). application, pursuant to art.
years of legislative elaboration obligation to take charge of All three judgements excluded 36 of the Constitution, of the
and, in particular, the first and the deliveries reported by the the existence of “hetero- minimum hourly wages set for
fundamental labour protection system. direction” relative to the work the bellboys of the NCLA for
of a proportionate and sufficient performance of the riders by the Logistics Transport, with the
salary, in accordance with In addition to these antithetical various food delivery platforms, consequent order that the
art. 36 of the Constitution; the positions, subject to the and, therefore, no dependent food delivery platform pay the
second, on the other hand, is recognition of the subordinate employment. The decisive riders the relative differences in
still almost non-existing (with the nature of the relationship, factor was that the workers wages.
64 Thought Leader MAY 2019
It is interesting to note that, January 2019, extended these is substantially unknown even
according to the Court, the conclusions also to the drivers of to national top management
aforementioned rule was UBER (defined by the EU Court (who, when questioned as
introduced by the Legislator of Justice in its judgment of 20 witnesses, have always provided
precisely to “ensure greater December 2017 as an actual partial answers when they have
protection for the new types service in the transport industry not declared that they do not
of work that, as a result of the under EU law), thus creating a know).
evolution and the increasingly new orientation of the French
accelerated introduction case law that is ever more As regards to this second
of recent technologies, are oriented to consider the nature aspect, on the other hand, it is
developing”: the gig workers, in of subordination of the type of difficult at the moment to reach Avv Luca Daffra Studio Ichino
other words. work of gig workers. an efficient solution by purely
legislative means. The failure of
mediation between the Ministry
“
of Labour and the Riders Union
HETERO-ORGANISED COLLABORATIONS
of Bologna (the first Italian
“union” of riders) is proof of this
UNDER ARTICLE 2 OF LEGISLATIVE DECREE in Italy. The agreement is also

opposed by the digital platforms
NO. 81/2015 AND THE “COORDINATED AND which, for their part, argue that
a possible and indiscriminate
CONTINUOUS” ONES UNDER ARTICLE 409 absorption of all riders as
Avvocato Sergio Passerini
”
POINT 3 OF THE CODE OF CIVIL PROCEDURE. employees would lead to an
excessive increase in the cost of A further solution (even if not
the service for consumers, such feasible, at the moment, in
that it would be the same food
Italy, given the position of social
Have there been any judicial Moreover, similar conclusions delivery services to disappear
security institutions) could be the
interventions in Europe too? have recently been reached by and, with them, the jobs
Belgian one, where some digital
Over the past two years, the the Spanish and Dutch courts produced.
platforms finance the so-called
issue of gig workers has been (the latter overturning previous
umbrella companies, which
brought to Court in almost all decisions to the contrary), With regard to remuneration, in
are entrusted with the task of
major European countries, while in England the opposite addition to the jurisprudential
including Spain, France, the approach still prevails. openings mentioned above, it guaranteeing to registered
Netherlands and England, and is considered that an effective workers a minimum adequate
the conclusions were not always What the new frontier may be option could be the intervention salary, but also a social security
consistent with each other. There are basically two knots of the social partners and protection and contributions
to be untied: on the one collective bargaining, albeit for the repair of bicycles and
The ruling of 28 November 2018 hand, the transparency of the in the context of independent smartphones.
of the French Supreme Court is algorithm that governs the collaboration (as, moreover,
worth to be mentioned, which, entrustments and, on the other has already happened in the However, time flies: what will
reforming the statement of the hand, the possibility of finding field of market research with happen - presumably not soon
court of appeal (which had a compromise between the the Collective Agreement for - when home delivery services
expressed itself in similar terms positions of the riders and the the Regulation of Exclusively are entrusted to drones?
to the Italian courts), found a digital platforms. Personal Collaborations in the As it is increasingly the case,
constraint of subordination, Sector of Market Research of 24
the pace of progress risks
instead, binding the rider to If the algorithm modified the July 2017).
making certain issues old even
the digital platform (of food preferences for the distribution
before they can be governed
delivery in the specific case); of assignments in the event of As far as social security and
by the respective dedicated
according to the French courts, behaviour that was not fully safety at work issues are
regulations.
the provider would be able to compliant with the worker’s concerned, it is essential for
constantly monitor the position requirements - or perhaps even the legislator themselves to
of the worker, thus controlling on the basis of user evaluations, intervene - which has been Perhaps we should resell the
the performance, and could which were certainly not a fully announced several times - in classic dichotomy between self-
also deactivate the account, “objective” evaluation tool - its order to prevent a massive employment and employment
thus exercising a kind of disciplinary nature would, in number of lawsuits, which would to start discussing minimum
disciplinary power. fact, be evident. However, the be to the detriment of both worker protection, which must
algorithm remains inaccessible social security institutions and be guaranteed to all regardless
The French Supreme Court on 10 to courtrooms, also because it companies. of the type of contract. LM
MAY 2019 Thought Leader 65
Leandro Luzone, Founding Partner, Luzone Advogados
INVESTMENTS
FOREIGN INVESTMENT AND FOREIGN COMPANIES IN BRAZIL
www.luzonelegal.com
With Brazil being the seventh biggest economy in the world with a GDP of USD 2.3 trillion, it is no surprise that investors
are more interested in expanding outside their jurisdiction. However, alongside the benefits of a strong labour force
and an expanding consumer market, comes a complex regulatory system and high taxes. We speak with Leandro
Luzone on how foreign companies can prepare for the complexities they may face.
attract foreigners to set up their After the creation of the Our main job is to soften these
LEANDRO LUZONE business here. business plan, the first thing to barriers in order to provide
consider is the most appropriate foreign investors with greater
Leandro Luzone is the Recently, after amendments in legal corporate structure efficiency and agility in
founding partner of Luzone the law, it is possible to obtain in accordance with each conducting business in Brazil,
Advogados – Law Firm, as a residence visa by means of situation, while considering the
always focusing on the legal
well as a legal expert in investment, in ready or under tax impacts on the operation
certainty of international
civil and commercial law, construction residential or and other laws, including labour
investment.
business and corporate law, commercial real estate. and consumer law.
and in private international
With the investment, foreign For the foreign investor, the Knowing the corporate legal
law. Many foreign clients
investors will be entitled primary issue for a business challenges, we always try
asked for his opinion on
various issues related to a provisional two-year investment decision is legal to anticipate the problems,
to Brazilian Law. He has residence permit. After that, certainty. Everything is clear passing on to the foreign client
worked as a lawyer and the authorisation becomes when the company knows the general challenges that they
legal adviser for several permanent. the legal and bureaucratic may face when conducting
foreign companies and requirements of the business you business locally.
their affiliates with activity in This measure facilitates the entry want to explore.
Brazil and abroad. of investors and helps the growth As Thought Leader in this sector,
of the real estate market, which The foreign company or investor
can you share some tips that
was adversely affected during needs to be sure that they will
help foreign clients, individuals
the crisis. not be presented with any
or companies, in order to be
surprises and that they can plan,
successful with their projects
How can a foreign company contract and execute their
be sure that the business projects within an expectation in Brazil? What are your tips for
conducted in Brazil is bringing already calculated under the foreign traders entering Brazil for
progress to the company locally aspect of legal certainty. business?
and regionally?
Can you share what the current From this, can you share It is important for a foreign
foreign investment scene is like In order to provide legal certainty the common challenges investor, individual or company,
in Brazil? to the foreign investment, it is clients face regarding foreign to have an intimate knowledge
important that the company, investment in Brazil? How do you of the local environment,
Among the most difficult with the support of a legal assist with this? including both the direct
aspects for foreign investment in expert, prepare the necessary
and indirect costs of doing
Brazil are regulatory, tax, labour, preliminary documents and The biggest challenges that
business in Brazil, related to
and bureaucratic issues; factors follow the bureaucratic foreign clients face in Brazil are
distribution, government
which when unsuccessful or procedures. As for the segment related to: the opening times
procedures, employee
mismanaged, can seriously of operations, there may be a of the company; bureaucracy
benefits, environmental laws
impact the results of a project. differentiation regarding the and obtaining the necessary
need for registration before licenses to start operations; and complex tax structure. As
However, despite high costs specific public agencies, as the difficulties related to the speed in Brazil is a real problem,
and bureaucracy, the huge well as different variations of adaptation of the local business the investor also must adjust
Brazilian consumer market and procedures according to the culture; and, the complexity of the budgets and business plan
the availability of investments intended business structure. tax and labour legislation. accordingly. LM
66 Thought Leader MAY 2019
Ben Fairhead, Partner, Pinsent Masons LLP
PENSION FRAUD
Why Is Pension Fraud So Common?
www.pinsentmasons.com
Most of us will grind for a major chunk of our lifetime, hoping to save, spend or pass on our money. Collecting our
pension after much needed retirement is what many people look forward to, however, for some, it may result in a
less expected shock: fraud. Speaking with Ben Fairhead, we explore why pension fraud is common and how people
can avoid finding themselves in dispute.
The combination of large sums as establishing what companies What is the Pensions
BEN FAIRHEAD of otherwise inaccessible funds or individuals are associated Ombudsman’s role in all of this?
and some flaws in the system with the scheme. Dormant or Do you think changes ought to
Ben Fairhead, Litigation have made pensions a ripe area newly registered companies be made in this area?
Partner at Pinsent Masons for fraud. can sometimes be a warning
LLP, with a focus on Pensions sign, for example. The Ombudsman was previously
Disputes and potential areas What (regulatory) changes do inundated with complaints
of dispute, with significant you think should be made to What sort of disputes are there by members who had either
experience of dealing with prevent this from occurring?
in this particular area and what transferred pensions into
pension scams. Ben is a outcomes have there been? schemes that had turned out
member of the Pension I think a lot has been done
to be scams or who have been
Scams Industry Group that already that really ought to
There have been a number of prevented from transferring
prepared the Code of Good have reduced the scale of the
cases concerning the status because of concerns raised.
Practice giving guidance problem: it has become harder
of the pension schemes set
on combating pension to set up pension schemes, and
a cold calling ban has been up to liberate pensions – they The problem is that the law, as
scams.
brought in recently, giving are by their nature unorthodox it currently stands, is generally
scope for significant penalties and have created a lot of going to establish a right on the
for those in breach. legal uncertainty. There have member’s part to go ahead
also been a number of claims with a transfer irrespective
However, there are still plenty of pursued against the original of concerns about the risk of
pension scams out there, and trustees and parties behind the it falling into the hands of a
the models evolve more quickly scams as well as action initiated scammer. The party being
than the law can be changed. by the Pensions Regulator using asked to make the transfer can
Pension liberation fraud is seen Greater publicity of the risks is its own powers. – and is expected to – carry out
as one of the most common more important than anything due diligence and warn the
forms of financial crimes; else. Victims of scams have also individual before allowing the
from your opinion, why is it so triggered a large number transfer to go ahead. Ultimately
common? What signs would you advise of claims and complaints, though, an insistent individual
clients to look out for, in order to particularly against those can simply demand that the
Pensions are generally locked avoid such fraud?
operating the pension schemes transfer goes ahead.
up and unavailable to you
that have allowed transfers
before the age of 55, yet large The Code of Good Practice
into suspected scams. There Many of those operating
amounts can build up. sets out detailed helpful
have, however, also been pension schemes would prefer
guidance for pension trustees
a large number of Pensions the law to be changed to
Until relatively recently, it was and providers, who often want
Ombudsman complaints make it easier to object to such
straightforward to set up a advice as to what to do when
a member of a pension scheme against trustees who have transfers proceeding. That
pension scheme, as many
pension scammers have done, is pressing to transfer funds into a refused to allow transfers when might well save thousands of
and lure members of the public suspicious-looking scheme. concerned the member might pounds from disappearing into
into transferring their pension be about to move monies into pension scams although there
funds in. This is often with the This ranges from clear red flags, a scam. Some might say the is some tension with a desire to
enticing prospect of being such as the member being pensions industry has been ensure individuals have freedom
presented with 50% or so of approached through a cold between a rock and a hard to choose what they do with
those monies as cash. call, to more subtle points such place in recent years. their pensions. LM
TEMPORARY WORK VISAS FOR PROFESSIONALS AND INVESTORS
GREEN CARDS FOR SKILLED AND UNSKILLED WORKERS
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INVESTOR GREEN CARDS
FAMILY IMMIGRATION AND NATURALIZATIONS
SUPER
LAWYERS
Do you think our hard-working lawyers
deserve hero status? Because we do. Being
a legal professional is no easy walk in the
park, especially during administrative and
regulatory changes.
We have gotten in touch with lawyers

that continue to exceed, even in the
most challenging of times. They touch on
controversial topics, muted news, and the
surprising announcements which shocked
the legal industry, and how they overcame
and worked through these matters at hand.
70 SUPER LAWYERS MAY 2019
How Has the Bulgarian Legal System

Progressed?
We speak to Tcvetanka Boteva about how Bulgaria has progressed in terms of its
legal system. She touches on how since the EU accession of Bulgaria, the national
legislation has been in a process of harmonization with the EU legislation, yet how
there remains to be a need for a more harmonized unity throughout the member
states.
In the past twenty-one years I too. In this respect, the time
have been working as a lawyer. needed to set up and register a
I have been a member of commercial company has been
the Plovdiv Bar (Plovdiv is the reduced to just a few days. These
second biggest city in Bulgaria) changes, however, drastically
and a free-lance barrister. reduced the workload of lawyers
During this period of 21 years, I in connection with company
have also been working with incorporation. Nowadays
a team of technical assistants anyone can register a company
and trainees. The dynamics with minimal efforts – proprietors,
and pressure at work have their agents, accountants, etc.
been varied. The main focus,
however, has invariably been However, the cases of business-
on the client and the client’s to-business indebtedness and
interest. I have always aimed insolvency of proprietors and
at providing the best possible commercial companies have
become more common and
protection to my clients and
more serious. It seems that the
their rights, whatever the case.
global crisis of 2008 heavily
The time factor has also always
affected our country, and
been of great importance –
caused numerous companies
clients are always in a hurry
and financial institutions to go
– to submit documents, to
bankrupt.
close procedures, to have their
problems solved. In Civil Law, when a party information on the topic in
It had an adverse effect on each
sphere, on each profession. cannot be duly served at the newspapers or other media,
At the beginning of my career, last known address, or cannot has talked to a friend with a
The client’s interest was slightly
I remember having clients be represented for explicitly similar problem, or has found
dimmed by the concern about
who, following the statutory whether the client would be specified reasons, then a special information on a similar case on
procedures, set up their able to pay the due legal fees, legal assistant is assigned. In all the internet. So the challenges
own companies in the UK. I and, respectively, if my interest other cases, legal assistance is are quite big, and quite different
remember them saying that would be guaranteed. If the not guaranteed, except in some from the time when I started my
the procedure in the UK was client is a company owner with cases specifically stipulated career in this field, equipped
quite simple, straightforward, ‘blocked’ accounts, then it is a by some special law, where with a typewriter and a landline,
not requiring great funds – you really hard question… the issue is explicitly regulated whereas nowadays, every
just apply through the proper “the party is represented by…”. potential client who would like
channels and then wait to Natural person(s) also are a Consequently, the client’s to use my services has already
have all the registration papers cause of concern: to them, interest, my own interest, and ‘informed’ him/herself using the
delivered by mail. the limit for using attorneys’ last but not least, the evaluation phone in their pocket about
services is the use of the services of the client’s necessity of legal ‘everything’.
After certain changes in the of a legal assistant assigned advice, are the leading factors.
legislation and the introduction to them, but such assistance is Now I have to be a lot more
of the Commercial Register, this provided only in certain criminal In many cases, the party seeking assertive to convince the client
is already a fact in our country, procedures. legal advice has already read of my competence and of the
MAY 2019 SUPER LAWYERS 71
there under an employment extradited to Germany under

contract. For convenience, I the EAW. Stoyan Stoyanov was
It is quite a challenge will call him “Stoyan Stoyanov”. subsequently released, and no
So this man was a permanent charges were pressed. What he
nowadays to stand before the judge in the resident of Bulgaria and had and his family suffered, however,
courtroom and convince this well-informed a clean criminal record. On cannot be compensated. It was
returning to Bulgaria with his Mr Stoyanov’s first appearance
judge of your arguments, to substantiate family for the summer holidays, before any court; he had never
a claim, and even establish new he was detained pursuant to a been arrested before, let alone
European Arrest Warrant (EAW). extradited and detained.
legal practices. After I acquainted myself with
this warrant, I established that
I am sharing this case
it had been sent from another
hoping that in the course of
member-state in connection
fact that I am the one who and collections of past harmonization it is possible to
with a tax crime committed by
can help them find their way in judgments is a thing of the past. establish procedures allowing
a company whose manager
the labyrinth of jurisprudence. Now the court of law employ me, for example, as his attorney,
was called Stoyan Stoyanov,
Self-confidence is the key: that computer specialists to ensure to represent Mr Stoyanov in this
on the territory of that country.
of the person who thinks he/ the maintenance and support case until its end and closure.
In essence, any fiscal offence is
she is able to cope, and that of computers and systems which My client was a Bulgarian living
a crime against the fiscal system
of the one who actually copes facilitate the functioning of the in France and tried in Germany.
of the EU. In this respect, such
professionally on a daily basis, respective court of law.
cases in the Republic of Bulgaria Why can’t there be harmonized
and who is always striving after
attract the interest of the public, rules for lawyers in such cases?
being aware of any and all It is quite a challenge nowadays
so the court tries to do its job Lawyers should be able to
changes in laws and procedures, to stand before the judge in
accurately and thoroughly. collect and request proofs and
and keeping abreast of all the the courtroom and convince
documental evidence from
latest developments in the field this well-informed judge of your
In this particular case, however, France and Germany, and
of law. arguments, to substantiate a
claim, and even establish new there was a significant cases should be tried in Bulgaria.
Since the EU accession legal practices. Thus modern discrepancy: the period during I also ask myself the question of
of Bulgaria, our national jurisprudence is already a which the foreign legal entity whether the EU fiscal system
legislation has been in a global one; what I mean is had been managed by Stoyan would be affected adversely
process of harmonization with the court rulings passed by Stoyanov was different from the by the two court procedures
the EU legislation. This new European courts of law and period during which the alleged in Germany and in Bulgaria,
development has called for the their practices. And it exactly tax crime had been committed. both being EU members? EU
continuous training of all actively in the misunderstanding / In my plea, I repeatedly drew rules are the same, aren’t they?
practising lawyers – judges, or lack of understanding/ of the attention of the district And problems ensue from the
prosecutors, investigators and European legal norms and their court to this discrepancy, but transposition of certain norms
attorneys-at-law. prompt transposition into the the grounds pointed out by and their harmonization with the
local legislation. This is a slow the court were: ‘We have no national legislation.
In recent years, several institutes process entailing the specific powers to comment on the EAW
have been set up specifically for and qualified efforts of many in question’.
Back in 1988 I was still at school,
training in this field. In addition, people working on harmonizing and perhaps I had already
there is the mandatory practice our legislation with the EU one. By analogy and only and on
heard of John Atanasov, the
of the European Court of Human the basis of an online reference,
inventor of the computer. In
Rights and the judicial decisions It may sound quite brave and a local court in Germany ( I
1998, I would have my first
issued. It takes time for these daring, but I believe it would shall refrain from mentioning
laptop. Since then, I have had
practices to be adopted by the be easier if those processes to the name of a self-proclaimed
several computers, and there
local courts of law. a certain degree and some political leader of the third
country who was in exile in must be thousands of computers
procedures were universal
What is more, it is a gradual for all member-states. What I Germany) also refused to used in the different units and
process. The time when judges mean is the following: without comply with EAW on grounds departments of the legal system,
had at their disposal collections mentioning specific people, connected with the essence of each computer more powerful
of court judgments and I would like to share with you the EAW, and did not repatriate than the other, with faster and
decisions issued by the supreme the following case: Some time the person in question to the more powerful processors,
courts is long gone. But back ago, I was retained by a client competent authorities in his and with the tendency to
then, that was the established – a Bulgarian citizen who had home country. In my case, introducing 5G Internet by 2022.
mandatory practice. The work been living in France for nearly however, this did not happen; This is yet another challenge we
done by judges using typewriters twenty years and working Stoyan Stoyanov was not are faced with. LM
PROFESSIONAL
EXCELLENCE
Lawyer Monthly seek out to find renowned experts in the legal

industry, to ensure that the words they pass on to us provide our
readers with the best insights and refined knowledge, to help you
progress to the same excellent standard.
The Professional Excellence feature explores the perspectives from

a number of established experts discussing market conditions,
trends, client challenges, rules and regulatory issues as well as
understanding various areas of their specialisation.
These selected professionals have undergone their own challenges

to enable them to be at the top of their game, and so their words of
wisdom are much appreciated throughout this feature.
This month learn more about the music industry. Speaking to Paul
Kempton, we learn about how the digital age has impacted the
music industry and the ‘value gap’.
74 Professional Excellence MAY 2019
MUSIC COPYRIGHT
MUSIC IN THE DIGITAL AGE: CLOSING THE VALUE GAP
The Value Gap: what is it? However, the “Value Gap” isn’t exist in legislation in the USA copyright and creates a
Digital technology has just created as a consequence and Europe. This legislation number of new licensing and
revolutionised the music and of non-payment of royalties. establishes exemptions for royalty rules for the digital era.
entertainment industries in Even where deals are being content intermediaries from That’s not to say that it’ll all
many ways, not least in the way reached voluntarily between direct and indirect responsibility be plain sailing from now on.
in which music is distributed. rights holders and the relevant for copyright infringing content Recently, Spotify and Amazon
The old “analogue” distribution digital players, those deals may in user uploads. have officially challenged a
paradigm has been turned still not satisfy the requirement Copyright Royalty Board ruling
on its head, especially in for value or a “fair share” of In Europe, there has been in the USA that set royalty rates
relation to physical products, the value created by the much heated and passionate for songwriters there, for on-
and technological advance products using rights holders’ debate in recent times which demand subscription streaming
continues to create new and IPR. Take Spotify – a driving
exciting opportunities, not force for streaming – as an
only for getting the product example. Many rights holders
to the consumer but also for have been vocal in their The main challenge is the
establishing new relationships disapproval of the amount of
difference between the revenues
with consumers. This also royalties they receive and, in
presents a number of real certain cases, have withdrawn effectively received by rights holders
challenges to the financial their repertoire (if only on from the exploitation of their copyrights
ecosystem that must underpin a temporary basis in some
this growth. cases). Nevertheless, Spotify by content-sharing platforms, such
has been reported to spend as YouTube and Facebook
The main challenge is the roughly 80% of its revenues in
difference between the rights payments. This is clearly
revenues effectively received an unhealthy situation for both
by rights holders from the rights holders and Spotify. It’s has culminated in the new EU and other mechanical uses,
exploitation of their copyrights also been variously reported Copyright Directive, recently that would rise by 44% over the
by content-sharing platforms, that the difference between approved by the EU Council next five years. Looking at the
such as YouTube and royalties received by ad-based and, therefore, now ready economics of Spotify’s business,
Facebook, and the value that content-sharing platforms and to be implemented locally it’s perhaps understandable
those platforms receive from services like YouTube, and in Member States. Article that they’ve taken this action,
exploiting such content. This subscription-based services 17 of the Directive amends but it has been met with howls
is commonly referred to as the such as Spotify, is between the previous “Safe Harbour” of protest by rights holders
“Value Gap”. five and twelve times. This provisions (contained in the EU and their representatives,
comparison should be treated Electronic Commerce Directive the National Music Publishers
The sense of “injustice” that with some caution though as, in 2000) and, broadly speaking, Association, for instance,
creators feel around the “Value whilst there might be some requires content-sharing calling it a “shameful” move
Gap” issue is exacerbated commonality in the experience services to have licences for which equates to “suing
by the growth of digital the user enjoys, there are also copyrighted material with songwriters”.
revenues enjoyed by those differences between the “fair remuneration” for rights
commercialising the music. services. This also illustrates holders. It also makes platforms Furthermore, although the
According to the recently the degree of disparity that liable for content made by its legislative change in Europe
published Global Music Report characterises the “Value users. has been hailed as a major
2019 from the International Gap”. breakthrough, only time will tell
Federation of Phonographic Whilst there is no similar change the extent to which it closes
Industries (IFPI), representing How can the Value Gap be in prospect in the USA regarding the Value Gap. Nevertheless,
record labels and artists, paid closed? “Safe Harbour” legislation, it is clear that legislation has a
streaming accounted for 37% Traditionally, the origin of the the Music Modernisation Act central part to play in creating
of the total global recorded Value Gap is rooted in the 2018 has brought about an an environment where the
music revenue in 2018. “Safe Harbour” provisions that extensive overhaul of music Value Gap can be closed, but
MAY 2019 Professional Excellence
LM90-17 75
it cannot be the only instigator fourth consecutive year of lack of suitable technology,
of change. global growth. It was also but in the fact that the relevant
“the highest rate of growth data doesn’t all sit in one place.
Content management in since IFPI began tracking the This is a consequence of the
the digital era has been market in 1977”. Additionally, fragmented way in which the
inadequate and contradictory the Report states that “fuelled music industry has traditionally
and, so far, lacking in a clear by the continued investment worked, the changing aspects
and coordinated strategy. from record companies, the of copyright ownership and
Delayed awareness and global story is one of dynamic, the fragmented ownership of
reaction to the changes being diverse markets evolving songs. As a result, the industry
brought about by digital rapidly and finding routes to is in the throes of a significant
content distribution have also growth. Within the top 10, some transition. It will inevitably take
contributed to a rights licensing of the fastest growing markets time but that may not be a
landscape that is extremely are in Asia and Latin America bad thing in the long run as a
complex. (South Korea, Brazil) with Asia lot of the data problems being
becoming the second largest uncovered relate to things that Paul Kempton
It’s also clear that accurate and region for physical and digital have been taken for granted Managing Director
Footprint Music Ltd
swift identification of musical music combined for the first in the past, and they’re now T: +44 (0)1344 887880
assets are pre-requisites for time”. having to be dealt with in a paul.kempton@footprintmusic.com
generating revenue in a fast- systematic way in order to www.footprintmusic.com
moving transactional market. From a music publishing solve them.
The challenge isn’t based on perspective, there also seems
lack of suitable technology, to be a rebound in fortunes What’s next?
but in the fact that the relevant which has been reflected by The fact that digital
About Paul Kempton
data doesn’t all sit in one place. a number of significant music technologies have
Paul is Founder and
This is a consequence of the publishing business acquisitions revolutionised the distribution
Managing Director of
fragmented way in which the in the last couple of years. The of music is beyond doubt.
the Footprint Music Ltd, a
music industry has traditionally rapid rise of streaming and the Establishing what the “Value
specialist rights and licensing
worked, the changing aspects effective push by streaming Gap” really is, especially
consultancy celebrating its
of copyright ownership and companies to increase their when compared against
25th anniversary this year. The
the fragmented ownership of user base may well have acted benchmarks set in the old
consultancy is focused solely
songs. As a result, the industry as drivers for this activity. In any world of physical product, is
on music copyright and
is in the throes of a significant event, it would seem unlikely much tougher. Commerce
associated rights in the media
transition. It will inevitably take that such investment would will ultimately drive its own
and entertainment industries.
time, but that may not be a be occurring if the investors solution, as it always does,
Paul has advised both
bad thing in the long run as a didn’t believe in the business but not without the continued
national and international
lot of the data problems being proposition. help of legislation, better data television broadcasters,
uncovered relate to things that management, more effective digital platforms and content
have been taken for granted in Does this upturn in revenues and licensing models and, above makers and has appeared
the past. Dealing with them in investment percolate down all, collaboration between all as an expert witness or filed
a systematic way now should through the system to produce the stakeholders, including expert testimony in a number
result in a far more robust an adequate reward for creators, artists and other rights of international court cases,
data set. creators? It would seem not yet. holders. At that moment, tribunals and mediations.
whenever it occurs, the “Value He is also a member of the
Of course, commerce also It’s clear that accurate and Gap” debate should give way International Association of
continues to play its part. The swift identification of musical to a much more progressive Entertainment Lawyers and
IFPI Global Music Report 2019 assets are pre-requisites for environment. Those who was co-editor of their 2018
informs us that, in 2018, the generating revenue in a fast- are still looking backwards yearbook “Finding the Value
global music market grew moving transactional market. will simply be facing the in the Gap”.
by 9.7% and that it was the The challenge isn’t based on wrong way. LM
76 Professional Excellence MAY 2019
SUPERYACHT LAW
What Is the Purpose of a Superyacht Lawyer?
In this article, we explore the reasons behind needing a legal expert for
the purchasing and ownership of yachts and superyachts. We speak with
Bernardo Ruiz Lima more about this.
Many are unaware of a ‘supery- has extensive practical sailing lease scheme; the cross border
acht lawyer’; can you share and sea-going experience on- tax implications; the choice of
more on what you do? board yachts and superyachts, registration and flag; and to
grand-prix racing yachts and negotiate taking good care of
We provide legal advice and private pleasure crafts giving us possible insolvency risks; refund
practical guidance in relation an in-depth understanding of and performance guarantees;
to all aspects of yachts and su- Bernardo Ruiz Lima
the industry. I also work closely variation of contracts, etc. Partner
peryachts. Our day to day work with our commercial, employ- www.thomascooperlaw.com
deals with ownership, sale, pur- ment and ship finance groups What are the most troublesome Tel: +34 91 781 6670
chase, finance, dispute resolu- so that I can advise clients on aspects of the contract when Mob: +34 65 896 8466
tion, insurance, management, building or purchasing a yacht? Email: bernardo.ruizlima@
the broad range of superyacht thomascooperlaw.com
advising a large variety of par- matters. We have global reach
There are many legal aspects LinkedIn:
ticipants in the yacht industry; with offices in countries also https://www.linkedin.com/in/
these clients may be the own- that should be taken into ac- bernardo-ruiz-lima-b5296667/
known for ‘yachting’ and ‘su-
ers, managers, insurers, yacht count by a UHNW. Among
peryachting’ including Spain,
brokers, yards and marinas. others, I would highlight the fol-
UK, France, Greece and Singa-
lowing troublesome aspects: fi-
pore. Our team and I can read-
We have considerable exper- nance, leasing structures, cross
ily advise on multi-jurisdictional
tise in many superyacht related border and tax implications,
issues affecting superyachts. About Bernardo Ruiz Lima
matters, such as: building and payment schedules, insolvency
I am a Spanish qualified
refit contracts, urgent casu- What are the pre-contract risks, delays in delivery, insur-
lawyer and Partner at
alty response (personal injuries, considerations a UHNW should ance, confidentiality, variations
Thomas Cooper LLP,
groundings, salvage, towing, make prior to designing or pur- of contract, warranties, agree-
Madrid office. I am a
etc.), chartering, crewing and chasing their yacht? ment of a good dispute reso-
key contact for yacht
employment, dispute resolu- lution clause, implications of a
The buyer or the future charter- and superyacht related
tion, insurance related matters, future commercial use of the
er of a superyacht has to take matters in the firm. I hold
management, marina and superyacht and the crew prob-
care of many legal aspects an LLM in Maritime Law,
yard´s liabilities, sale and pur- lems.
and practicalities before order- International Trade and
chase, registration and finance.
ing the design or the construc- How does insurance work in this Marine Insurance from
We are particularly involved in
tion of a complex high-value area? Cardiff University (UK). I
the new aspects of racing rules,
project. Most probably, several am currently completing
regattas and sports law, cyber- It is essential to liaise with a re-
jurisdictions will be involved with a PhD, focusing my final
crime and its insurance. liable and first-class insurance
different applicable laws and dissertation on insurance.
Why and when should a client company, not only post-deliv- I am a teaching professor
several international treaties.
hire you to act as a superyacht ery (H&M, P&I, etc.) but also to for a number of Master
Therefore, a reliable law firm,
lawyer? with international presence, cover the design and building degrees and specialised
and a lawyer with relevant ex- process. An in-depth analysis of courses in Spanish
Problems with superyachts perience are essential. policy covers should be taken Universities. I am also
do occur and generally re- with brokers and legal advice a qualified Average
quire immediate action and After the decision is made about should be sought. I recommend Adjuster having taken
a cross-border perspective. I the designer of the project, and requesting and reviewing the courses at the Spanish
have considerable experience before signing the contract with builder´s risks policy (with the Merchant Academy
in handling disputes across the builder, a UHNW should be insolvency cover) and always (COMME); an Arbitrator
this spectrum. I am available given strong advice on the lo- think carefully about the insur- and mediator; and
24/7 together with our firm´s cal legal aspects of the coun- ance value and the possibility of member of the Spanish
emergency response team. try, including: where the supery- asking for a waiver of the yard´s Maritime Law Association
Our experience derives from acht will be built; the possible rights, in case of negligence and the Spanish
our long history as specialists use of a SPV; the finance, mort- of the owner or the owner´s Arbitration Association.
in maritime law. Our team also gages, possibilities of using a tax servants. LM
Lawyer Monthly welcomes our devoted US readers. If you reside
in America or are simply interested in how one of the globe’s
most influential countries is progressing legally and financially, the
following features are for you!
This month, we speak to Richard Meechan about workers’

compensation and to Erica Sanders who tells us how your professional
life is affected if you have a criminal conviction.
We hope you enjoy Lawyer Monthly US!

80 SUPER LAWYERS MAY 2019
Personal injury
What’s the Issue with Workers’ Compensation?
Lawyer Monthly sits down with certified specialist Richard Meechan for an interview
about his practice and the current state of workers’ compensation.
The doctors are required to explain

why that care is necessary under the MTUS
Guidelines. This is very time-consuming work
and the doctors are just not paid for it.
Can you tell us a couple of workers’ compensation system

keys about what you believe is an absolute mess. In 2013,
helps a successful workers’ Governor Brown took the power
compensation practice? away from judges to oversee
medical care for injured workers
I’ve been in workers’ to ensure it was fair. The State
compensation since 1985. I
turned that power exclusively
worked as a law clerk while in
over to the insurance carriers.
school and then became an
They control which doctors you
attorney in 1987. I’ve spent my
can see. They can fire doctors for
whole career doing workers’
no reason. They have the right to
compensation from the injured
worker’s perspective. We control every request made by
work for people in Sonoma, the doctor, by sending medical
Mendocino, Lake, Napa and requests to be scrutinized under
Marin counties. I’ve been a process called the ‘Utilization
empowered by working with Review,’ and they control
the California Applicants’ these doctors who perform the
Attorneys Association (CAAA). Review. The system is rigged
I’m a true believer in CAAA. against injured workers.
It’s our statewide organization
and is dedicated to educating All medical care must
attorneys and political be obtained through a
overwatch of the workers’ document called a Request
compensation system. We put
for Authorization and then a
on two conventions a year and
formal report. The doctors are
I go to both; knowledge is our
required to explain why that
most powerful tool, so I think
care is necessary under the
belonging to CAAA has been
MTUS Guidelines. This is very
the greatest contribution to my
law practice. time-consuming work and the
doctors are just not paid for it.
What do you see as the The bottom line is it has created
biggest issue in workers’ a poisonous system of medical
Richard Meechan
Law Office of Richard Meechan compensation right now? care. This problem really needs
Servinginjuredworkers.com to be addressed by our current
Medical care under the governor.
MAY 2019 SUPER LAWYERS 81
When do you think an injured have some great tools to help

worker should see an attorney? us define whether an injured
worker is, in fact, an employee
Visiting an attorney and hiring Another issue that people or an independent contractor.
an attorney really should be two come to see us about is how their The agreement between the
separate decisions. As I said parties has some power, but we
above, knowledge is power employers are treating them after actually look much deeper as
and we believe that injured the industrial injury. to who is controlling the work;
workers should be empowered whether the worker is being paid
to know what’s going on in on an hourly basis or paid by the
workers’ compensation and project; do they have business
when would be the best time workers’ compensation laws pretty much lost. It is now more cards and are they working for
for them to hire an attorney. protecting injured workers from of an algorithm meant to pay other employers with the same
We also tend to let sleeping discrimination are so watered injured workers for the disability skills. Is the business required
dogs lie, meaning if everything down we steer people in a that they receive. It’s the to have these types of workers
is proceeding normally, i.e., different direction. equivalent of pain and suffering in order to do this business? All
the person is receiving their in a civil suit, but it’s very much these things tend to point to the
temporary disability, receiving person truly being an employee
We have an attorney in our office disconnected from the pain and
their medical care and there are rather than an independent. So,
named Benjamin Karpilow. suffering the injured worker goes
no problems in the case, they if you’ve had a serious injury and
He takes and works cases of through.
don’t need an attorney. They the employer is saying you’re
discrimination law under the
may never need an attorney. an independent contractor, it
Fair Employment and Housing There is also medical care which
We sometimes look at an injured really is important to seek legal
Act (FEHA). The FEHA has real we’ve already mentioned. The
worker hiring an attorney as advice.
penalties for employers for employer is supposed to provide
entering the fight. We do not discriminating against disabled all the care that is necessary to
want to enter a fight until a Can you sue your employer?
workers and it provides for the cure or relieve the effects of
carrier has started it, and then payment of attorney’s fees. Ben the industrial injury but, as you
we want in. If you’re suing for an injury from
is a solid attorney. He can’t take know, that has been seriously
work, workers’ compensation
all of the discrimination cases damaged.
is the exclusive jurisdiction
When looking for an attorney, we find, but in our office, he gets
for litigating that injury. So,
they should absolutely pick to see many cases. He finds Finally, there is a small
basically, if it’s covered by
an attorney that has an office those that are the best and most vocational rehabilitation benefit.
worker’s compensation there
near their local Workers’ viable cases which are the ones It’s called the SJDB. It’s a $5,000
is not another cause of action
Compensation Appeals Board. that end up being filed in court. grant directly from the State of
against the employer for the
Hiring an attorney you have California for cash, basically,
injuries. It’s all under workers’
never met is just a bad choice; What benefits are available and then up to $6,000 in benefits
compensation. LM
it’s also bad lawyering. People to injured workers? paid for by the carrier. Those
should also look for a certified monies are to be spent in an
specialist. The attorney should There are four basic benefits attempt to return to work, or to
Richard Meechan
also have a strong connection Richard Meechan has over
available to injured workers. obtain an education. Attorneys
to CAAA. That shows they’re 30 years of experience in
First is temporary disability. That are not allowed to participate in
up to date on all they need to dealing with industrially
pays you up to 66% of your lost that system, or at least get paid
know. injured workers. He works
wages while you’re off of work for participating in that system.
hard to guard the rights of
and recovering. There is a cap We do help people with that,
injured workers in Sonoma,
Can you be terminated of 104 weeks, meaning that also.
Mendocino, Marin, Napa, and
after filing a worker’s after 104 weeks your temporary
Lake Counties in California.
compensation case? disability stops. If you’re out of What happens to people who
work longer, EDD may provide are independent or freelance
Another issue that people another year of protection. If you workers? Do you think there
come to see us about is how are out of work for more than will be any change in this Contact
their employers are treating three years, many workers have area? Richard Meechan
them after the industrial injury. only Social Security to help. Law Office of
The law tells us that there shall There has been a recent Richard Meechan
be, “no discrimination against Then there is permanent case that is helpful but was 703 2nd St Suite 200
industrially injured workers,” but disability. Permanent disability not intended for worker’s Santa Rosa, CA 95404
that level of protection is not the used to mean the percentage compensation. However, Phone: (707) 528-4409
reality in workers’ compensation. of loss that you had in the labor all the laws are supposed to Fax: (707) 528-3381
In fact, we’ve found that market, but that meaning is work together and we also
CRIMINAL
CONVICTIONS &
DISCRIMINATION
Can Your Company Fire You If It Finds Out
You Have A Criminal Record?
Nearly one out of every three working-age Americans have a criminal conviction.1
This means a significant portion of the population faces the real possibility that their business necessity (disparate
employment prospects may be jeopardized by criminal conviction discrimination. impact liability).” Thus, the
Knowing your rights and understanding employer obligations as they relate to EEOC recommends that the
criminal history is therefore imperative. This article sets out the legal landscape - as employer develop a targeted
screening program with respect
regards Federal, New York State and New York City laws - that protect prospective
to criminal backgrounds of
employees from discrimination on the basis of their criminal history. applicants that considers at
least the nature of the crime,
What classifies as criminal discrimination only occurs 1. TITLE VII AND THE FCRA
the time elapsed, and the
conviction discrimination? where the prospective Pursuant to Equal Employment
nature of the job (the three
employer denies employment Opportunity Commission
factors identified by the court
Before laying out the based on a general assumption (“EEOC”) Enforcement
in Green v. Missouri Pacific
legal landscape, it is first of poor moral character, Guidance #915.002 (4/25/12),
Railroad, 549 F.2d 1158 (8th Cir.
important to understand what despite the fact that there is Consideration of Arrest 1977)). According to the EEOC,
constitutes criminal conviction neither a relationship between and Conviction Records in the employer’s policy should
discrimination. Article 23-A of the conviction and the job, nor Employment Decisions Under also provide an opportunity for
the New York Corrections Law2 any reasonable risk of harm. Title VII of the Civil Rights Act of an individualized assessment
mandates that an application 1964: “An employer’s use of an in order to determine if the
for employment cannot be Furthermore, it is extremely individual’s criminal history in policy as applied is job-related
denied on the basis of a criminal making employment decisions and consistent with business
important to note that
conviction simply because may, in some instances, necessity. Finally, the EEOC
discrimination does not include
the prospective employer violate the prohibition against points out that “[a]lthough
rejection of applicants who lie
believes it shows a lack of employment discrimination Title VII does not require
about their conviction history3.
“good moral character.” There under Title VII of the Civil Rights individualized assessment in
An employer can reject a
are, however, two important Act of 1964, as amended. […] all circumstances, the use of
candidate who lies about a
exceptions. First, an employer A violation may occur when a screen that does not include
conviction, even if the said
can lawfully deny employment an employer treats criminal individualized assessment is
conviction is not related to the
on the basis of a conviction if history information differently more likely to violate Title VII.”
nature of the job. Clearly, in
there is a direct relationship for different applicants or
this instance, as is in most of
between the offense and employees, based on their race Under the Fair Credit Reporting
the nature of employment. life, honesty is always the best or national origin (disparate Act (“FCRA”), an employer
Second, employment can policy. treatment liability). [Moreover] may only obtain and use a
also be denied where it would [a]n employer’s neutral policy commercial background
pose an unreasonable risk What laws protect the (e.g., excluding applicants report – whether it pertains to an
to property, people, or the convicted from from employment based on individual’s criminal or credit
general public. discrimination? certain criminal conduct) may history – “for employment
disproportionately impact purposes” (i.e., hiring,
The above standard indicates There are several laws some individuals protected promotion, reassignment,
that not all instances of protecting New Yorkers under Title VII, and may or retention decisions)4.
employment refusal constitute from criminal conviction violate the law if not job- Moreover, the employer must
discrimination. Rather, discrimination. related and consistent with get the individual’s permission
in writing before ordering such 4. THE NEW YORK CITY FAIR

a background check,5 and CHANCE ACT
must notify the individual in The New York City Fair
writing of its intent to take any An employer can reject a Chance Act7 is one of the
“adverse action” based on any most progressive pieces of
candidate who lies about a conviction,
part of the report prior to doing anti-conviction discrimination
so.6 even if the said conviction is not related legislation in the country, and
to the nature of the job. is part of the “Ban the Box”
2. THE NEW YORK STATE movement8 sweeping across
CORRECTIONS LAW cities and states throughout
The New York State Corrections the country. Specifically,
Law allows an employer to this law prohibits employers
refuse or rescind an offer of and conviction: The bearing, welfare of specific individuals from asking candidates
employment, only where the if any, the criminal offense or or the general public. about prior convictions until
conviction either has a direct offenses for which the person after a conditional offer
relationship to the nature of was previously convicted will Should an employer decide of employment has been
employment, or poses an have on his fitness or ability to rescind or withhold an offer made. Only after extending
unreasonable safety risk. As to perform one or more of the based on the above analysis, a conditional offer can an
you might imagine, the analysis job’s duties or responsibilities. a candidate can request a employer inquire into criminal
that must be performed by written statement explaining conviction history and
employers to determine if 4. Timing: The time elapsed the basis for the decision. The (possibly) revoke said offer
either of these two criteria since the criminal offense or employer must provide such once the eight-factor test,
are met is quite fact-specific. offenses. statement within 30 days of proscribed by the Corrections
However, there are eight receiving the request. Law, is performed. The purpose
factors New York employers 5. Age: The age of the person of this legislation is to prevent
must consider before refusing at the time of the criminal 3. THE NEW YORK STATE employers from surreptitiously
employment on the basis of a offense or offenses. HUMAN RIGHTS LAW declining candidates based
conviction. They are: The New York State Human on their criminal history while
6. Severity: The seriousness of Rights Law (NYSHRL) hiding behind false legitimate
1. Public policy: New York’s the offense or offenses. supplements the Corrections reasons, such as the candidate
public policy encouraging Law by making it unlawful for not be “qualified.”
the employment of persons 7. Rehabilitation: Any an employer to ask candidates
previously convicted of one or information produced by about sealed convictions, What’s more, under the Fair
more criminal offenses. the person, or produced criminal accusations, or even Chance Act, if after offering
on his behalf, regarding arrests, if said events did not employment and conducting
2. Duties: The specific duties his rehabilitation and good lead to an actual conviction. a background check, an
and responsibilities necessarily conduct. As an exception, however, employer becomes concerned
related to the employment an employer can ask about about a candidate’s conviction
sought or held by the person. 8. Safety: The legitimate interest charges if they are currently status, it must first provide the
of the employer in protecting pending during the hiring applicant with its written eight-
3. Relationship between duties property and the safety and process. factor analysis (including any
documents that formed the In another instance, the same employers can do is to educate
basis for the analysis, such as, court ruled that termination of their staff, especially those
a rap sheet) and provide him/ a court reporter’s employment on the front-lines of the hiring
her a chance to respond. In was proper because, her process. Legally compliant
response, a candidate may offense (identity theft and policies are useless in the face
wish to challenge the accuracy credit card fraud) was of management/staff that are
of a rap sheet or provide directly related to her ability ignorant of said policies and, as
evidence of rehabilitation (such to produce true, accurate, a result, engage in blatant acts
as a diploma, a community-
and complete records of of conviction discrimination.
service award, or a 12-step
court proceedings, as were Such discrimination can lead
certificate). Such information
her duties as an officer of the to significant liability on the part
may cause an employer to
court.10 Notably, both the New of employers, especially in the
reassess its analysis. It is only
York State Corrections Law and form of class action disputes.
after completing all steps in
the New York City Fair Chance For example, in 2013, Target
this process, i.e. extending a
Act expressly state that they do agreed to a multimillion-dollar
conditional offer, performing ERICA RUTH SANDERS
not apply to or protect those settlement, resolving class
the eight-factor analysis, and Erica Ruth Sanders is an associ-
allowing a candidate a chance seeking entry into the police action claims filed on behalf
ate in the White Plains office of
to respond, that an employer force. For understandable of employees with criminal
Phillips & Associates. She repre-
may choose to rescind its offer. reasons, those seeking careers convictions.11 Thus, employers sents employees in connection
in law enforcement are held to would do well to make sure with issues involving workplace
Are there any jobs where a different standard than the that their policies are up-to- discrimination, wage theft, and
having a criminal conviction general public when it comes date and their staff are well- executive compensation. Ms
is per se unacceptable? to their criminal conviction trained. Sanders also has prior experi-
history. ence working internationally
The short answer is: YES.
TO SUMMARIZE: in Paris and Dubai on matters
Depending on the nature of
As can be seen from the Though New York’s anti- involving complex commercial
an individual’s conviction,
above, whether or not a discrimination laws regarding litigation and arbitration. She is
s/he may be lawfully
criminal conviction will criminal convictions are some an active member of the New
denied employment if the
disqualify a candidate is an of the strongest and most York Chapter of the National
aforementioned eight-
entirely individual assessment progressive in the country, Employment Lawyers Associa-
factor analysis warrants such
based on the specifics of the those who have criminal tion and chairs the organiza-
rejection. For example, the
conviction and the nature of records should know that their tion’s mentorship committee.
Supreme Court of New York,
the duties s/he is to perform. criminal history could lawfully She holds a dual degree in
Appellate Division held that
have bearing on eligibility for common and civil law from
a firefighter applicant was
What would you advise employment under certain McGill University, as well as a
rightly denied employment
employers to do, in order to circumstances. Thus, it is critical Master’s degree in social psy-
on the basis of a prior drunk
chology.
driving conviction, because change their perception that candidates and employers
the nature of his duties as a and embrace those alike have full knowledge of
firefighter would “involve an who may have previously their rights and responsibilities
unreasonable risk to property, committed a crime? under New York’s dynamic
and to the safety and welfare legal landscape with respect
of the general public.”9 The single most important thing to criminal convictions. LM
CONTACT
1
https://www.brennancenter.org/blog/just-facts-many-americans-have-criminal-records-college-diplomas. Erica Ruth Sanders
2
N.Y. Correct. Law § 752, N.Y. Exec. Law § 296(15). | 3Stewart v. Civ. Serv. Com., 84 A.D.2d 491 (1st Dep’t 1982).
4
15 U.S.C. §§ 1681a(h), 1681b(a)(3)(B). | 515 U.S.C. § 1681b(b)(2)(A). | 615 U.S.C. § 1681b(b)(3)(A).
Phillips & Associates
7
NYC Administrative Code §8-107(11-a). Unlike the other laws discussed, which apply to employers throughout New York State, www.newyorkdiscrimination-
the Fair Chance Act applies only to employers in New York City with four or more employees. lawyer.com
8
https://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/.
9
Grafer v. N.Y. City Civ. Serv. Com., 181 A.D.2d 614 (1st Dep’t 1992).
10
Matter of Association of Surrogates, & Supreme Ct. Reporters v State of New York Unified Ct. Sys., 48 A.D.3d 228 (1st Dep’t 2008).
11
http://www.esrcheck.com/wordpress/2018/04/11/target-pay-3-7-million-settle-lawsuit-discriminatory-criminal-background-
check-policy/.
Com p l e t i n g
The Deal
MBO ACQUISITION CROWD FUNDING BUSINESS FINANCING MERGER TRANSACTION CONSULTING
BUYING SELLING INVESTMENT FUNDING ADVISE LEGAL SHARES PURCHASE AGREEMENT
CAPITAL IP LOAN JOINT VENTURE MBO ACQUISITION CROWD FUNDING BUSINESS FINANCING
MERGER TRANSACTION CONSULTING BUYING SELLING INVESTMENT FUNDING ADVISE LEGAL
SHARES PURCHASE AGREEMENT CAPITAL IP LOAN JOINT VENTURE MBO ACQUISITION
CROWD FUNDING BUSINESS FINANCING MERGER TRANSACTION CONSULTING BUYING SELLING
INVESTMENT FUNDING ADVISE LEGAL SHARES PURCHASE AGREEMENT CAPITAL IP
LOAN JOINT VENTURE MBO ACQUISITION CROWD FUNDING BUSINESS FINANCING MERGER
TRANSACTION CONSULTING BUYING SELLING INVESTMENT FUNDING ADVISE LEGAL SHARES
PURCHASE AGREEMENT CAPITAL IP LOAN JOINT VENTURE MBO ACQUISITION CROWD FUNDING
BUSINESS FINANCING MERGER TRANSACTION CONSULTING BUYING SELLING INVESTMENT
FUNDING ADVISE LEGAL SHARES PURCHASE AGREEMENT CAPITAL IP LOAN JOINT VENTURE
MBO ACQUISITION CROWD FUNDING BUSINESS FINANCING TRANSACTION CONSULTING BUYING
SELLING INVESTMENT FUNDING ADVISE LEGAL SHARES PURCHASE AGREEMENT CAPITAL
IP LOAN Investment is pinnacle to every
JOINT VENTURE MBOjurisdiction’s
ACQUISITION economyCROWD
across theFUNDING
globe. Development and growth
BUSINESS in this area willMERGER
FINANCING
enable enterprises to grow, shrink, and change the nature of their business or competitive position.
TRANSACTION CONSULTING BUYING SELLING INVESTMENT FUNDING ADVISE LEGAL SHARES
PURCHASE
FromAGREEMENT CAPITAL
a commercial and economicIP LOAN
point JOINT
of view, VENTURE
both merger MBO ACQUISITION
and acquisition CROWD
transactions generally FUNDING
result in
the consolidation of assets and liabilities under one entity. But from a legal point of view, the two are different;
BUSINESS FINANCING MERGER TRANSACTION CONSULTING BUYING SELLING INVESTMENT
a merger is a legal consolidation of two entities into one entity, but an acquisition occurs when one entity takes
FUNDINGownership
ADVISE LEGAL
of another SHARES
entity's stock, PURCHASE
equity interests or assets. AGREEMENT CAPITAL IP LOAN JOINT
VENTURE MBO ACQUISITION CROWD FUNDING BUSINESS FINANCING MERGER TRANSACTION
There is substantial effort behind a successful M&A transaction; due diligence is of utmost importance, good
CONSULTING BUYING SELLING INVESTMENT FUNDING ADVISE LEGAL SHARES PURCHASE
communication and amicable connections can help ensure all goes smoothly. For the lawyers behind all this, a
AGREEMENT CAPITAL
keen eye for detail IP
and LOAN
perfectedJOINT VENTURE
expertise MBO
is deeply sought ACQUISITION
after, CROWD FUNDING
to enable these corporations BUSINESS
and businesses
FINANCING MERGER
to head TRANSACTION
off into a stronger direction. CONSULTING BUYING SELLING INVESTMENT FUNDING
ADVISE LEGAL SHARES PURCHASE AGREEMENT CAPITAL IP LOAN JOINT VENTURE MBO
This month we reveal all you need to consider regarding fundraising strategies with Arden Partners.
ACQUISITION CROWD FUNDING BUSINESS FINANCING MERGER TRANSACTION CONSULTING
BUYING SELLING INVESTMENT FUNDING ADVISE LEGAL SHARES PURCHASE AGREEMENT
CAPITAL IP LOAN JOINT VENTURE MBO ACQUISITION CROWD FUNDING BUSINESS FINANCING
MERGER TRANSACTION CONSULTING BUYING SELLING INVESTMENT FUNDING ADVISE LEGAL
86 Completing The Deal MAY 2019
Key Points on Fundraising Strategy

Legal assets have become increasingly attractive to London fund managers since Gateley’s flotation
in 2015. Over £850 million has now been invested in public UK legal equities. The implementation of the
legal services Act 2007 and the creation of alternative business structures have seen a rapid deployment
of external capital in to legal firms. There are now eight listed law firms and that could more than double
in the next twelve months. DWF has focused on the opportunity in the Global Legal Market estimated
to be over $700 billion.
The key points to consider able and incentivised to simply journey. As a rule of thumb, a
when firms are completing a manage the business. The key fully consensual partnership
fundraising strategy: to this is a decisive governance will take approximately two
structure where business needs years to convert to a model
Is there an “internal investor” can be addressed swiftly and that is attractive to external
culture? the rapid pace of change shareholders. It is also a
Many partnerships are incumbent in modern legal complicated story to investors.
idiosyncratic and bespoke businesses accommodated. DWF have been planning their
groups of individuals. To IPO with advisers / stockbrokers
attract external investors, they Differentiation an important for over twelve months.
must see partners keen to be guide to success
A growing historic financial
shareholders. Partner lock The legal services market is very
track record is vital as well as About John
ins on equity received and
significant internal investment
fragmented but at the same
time there is often inadequate
a stable management team and The Firm
with clear experience in the Arden are a dedicated cor-
in the shares are attractive to differentiation with many “me
business. porate adviser and multiserv-
investors. too” propositions. There are
ice stockbroker. I head our
over ten thousand law firms in The marketing of a fundraising professional services team
Do they have a clear and the UK, and of these, even the strategy will draw on the historic who are one of the leading
evident strategy for growth? larger firms are not particularly financial record (last 3 years). advisers on mergers, acquisi-
Financial investors will want separated and often lumped Any significant downturn in tions and fundraising for the
to see a clear growth plan together into groups. External this track record will require professional firms and busi-
articulated. Firms must investors want firms that stand explanation and may impact nesses. We have developed
highlight clear financial key out in the crowd. They look success. At the same time the a particular specialisation in
performance indicators (KPI’s) for market leaders, sector key management team must the legal space where our
that demonstrate how and specialists, high operating have a demonstratable track Research team has become
why a businesses growth profit margins, a “roll out” story. record in the business. They a market leader and has cov-
targets will be met. Profits Articulate precisely the use of must also be planning to remain erage of the majority of newly
growth is key. Track record and funds with the firm for the foreseeable listed firms.
management expertise also future. Premature departures
underpin investor confidence Often overlooked, but all post flotation, especially in the Contact
that the team have “earned investors need to be told first year, will negatively affect John Llewellyn-Lloyd
their share”. how the funds will be used. share price. LM Director, Corporate Finance
Acquisitions, lateral hires and Head of Professional Services
Is there effective corporate technology investment are www.arden-partners.com
governance and proof that common themes. Money for W: www.studiolegaledelre.it
managers manage? partners’ exit is not attractive.
One of the strengths of the
corporate listed model is the Give yourself enough time The legal services market is very
freedom it gives to lawyers to To take partners on a journey
fragmented but at the same time there
focus on quality and delivering from one “hundred percent
top quality client service. draw” to corporatised is often inadequate differentiation with
When linked to a specialist shareholdings and salary with many “me too” propositions.
management team who are profit shares, can be a long
TRANSACTIONS ADVISER INTERVIEWS
Adviser Name: Parag Shah, Director
Company: Grant Thornton
Deal Name: EAPEF Invests in Software Technologies Limited, Kenya...........................90
MERGERS & ACQUISITIONS

Brothers Publicidad sell 51% in Comunica + A to Dentsu Aegis Network Iberia.........91
Eaton Capital Unlimited Company Acquires A Majority in Ulusoy Elektrik..................91
Estrela Acquires 12% Interest in TruckPad Tecnologia e Logística................................92
Globant Acquires Avanxo.................................................................................................92
One Horizon Group to Acquire Majority Interest in Maham Studios.............................93
What’s happening
in the world of
M&As and IPOs?
Each month we take a look at the top deals, mergers
and leases in the M&A sphere, often including exclusive
insight from the law firms involved in advisory, their
opinions and thoughts on the deal, and an exploration
of the challenges therein.
A top deal this month was EDPR announcing its first sell down
transaction in North America of a 499MW portfolio of onshore wind
assets. The deal is valued at USD 1803 million.
Murphy Oil Corporation (NYSE: MUR) announced that its wholly

owned subsidiary, Murphy Exploration & Production Company –
USA (“Murphy”), has entered into a definitive agreement to acquire
deep water Gulf of Mexico assets from LLOG Exploration Offshore,
L.L.C. and LLOG Bluewater Holdings, L.L.C., (“LLOG”). Murphy will
pay a cash consideration of $1.375 billion. Additional contingent
consideration payments are based on the following: up to $200
million in the event that revenue from certain properties exceeds
certain contractual thresholds between 2019 and 2022; and $50
million following first oil from certain development projects.
With the M&A sphere being as proactive as ever, over the next
few pages you can read some exclusive interviews with the legal
experts who have been working on M&A deals that have taken
across all over the globe.
90 Transactions MAY 2019
EAPEF Invests in ADVISER INTERVIEW

Parag Shah - Partner
Software Technologies Vivek Patel - Director
Limited, Kenya Grant Thornton
Please tell me about your involvement in the deal?
We assisted our client, Enko Capital to carry out a financial

Legal advisers to EAPEF:
and tax due diligence of Software Technologies Ltd (the
target) to assist them make an informed decision on their
proposed investment. This involved reviewing the historical
and forecasted financial data, as well as the tax position of
the target and advising them on any concerns or exposures
that we found in our review.
This announcement appears as a matter of record only
Transaction Report Why is this a good deal for all involved?
EAPEF Invests in Software Technologies Limited, Kenya

This was a good deal for both the parties as both, the target
Enko Capital Managers (“ECM”), managers of the Enko Africa company and our client got what they wanted. The target
Private Equity Fund (“EAPEF”), a private equity investor targeting company has been growing at a good rate and were
mid-cap growth companies across Africa, has completed an looking to accelerate their growth by expanding their service
investment to provide expansion capital to Software Technologies offerings to different markets. They needed some financial
Limited (“STL”), a Kenyan-headquartered Group proprietary injection to assist them with this strategy. On the other hand,
software solutions provider and IT training company. our client had the opportunity to close their first investment
in Kenya and the fact that the target company was already
The deal marks the seventh investment for EAPEF and will support performing well, made it a great investment for our client.
STL’s expansion strategy into selected African territories as well as Both parties also agreed on the valuation adjustments and
growth in its home market of Kenya. Specifically, the investment so neither party closed the transaction with any grievances.
will be used to provide funding to roll out its existing suite of
software products into other African markets, as well as to expand What challenges arose? How did you navigate them?
the outreach of the Institute of Software Technologies (“IST”), its
As the target company is primarily involved in the
training subsidiary.
development and provision of software solutions, our
biggest challenge was on the treatment and reporting of
the intangible assets in the financials of the target as there
are various assumptions to be used for the same. However,
our broad understanding of IFRS and being part of a global
network assisted us to navigate this challenge and compare
the treatment of intangible assets to similar businesses across
the world which assisted us to validate our recommendations
on the same.
MAY 2019 Transactions 91
Brothers Publicidad sell 51% in Brothers Publicidad Sell

Comunica + A to Dentsu Aegis 51% in Comunica + A To
Network Iberia Dentsu Aegis Network Iberia
Dentsu Aegis Network announced that Spain’s largest independent
creative agency, Comunica+A, is joining the network. Headquartered
in Madrid and with offices in Barcelona and Paris, Comunica+A, is one
of Spain’s most renowned creative agencies. The agency, founded in
1998 and with 260+ employees, has an impressive client list with leading
brands including Orange, Caixabank, NH Hotels, Michelin, Bosch Car
Services and Real Madrid.
Being part of Dentsu Aegis Network, will enable Comunica+A to expand

the scope of services beyond advertising, marketing, retail and digital
with access to world-class capabilities in consumer insight, data and
analytics. The move will also create the opportunity to offer clients an
Has acted as legal adviser to:
integrated, full-service solution across all forms of media, digital and
programmatic, to better reach consumers and help clients win, keep
and grow their best customers.
Operating across 145 countries and with 47,000 employees, Dentsu Aegis
Network is one of the largest communication groups in the world and
Brothers Publicidad
a leader in data and digital advertising services. The acquisition brings
together the creative capabilities and expertise of one of Spain’s most
reputed creative agencies with media and data strategy and planning
and the media buying capabilities of a major advertising network.
Eaton Capital Unlimited Company Eaton Capital Unlimited

Acquires A Majority in Ulusoy Elektrik
Power management company Eaton (NYSE:ETN) has acquired an 82.275
Company Acquires a Majority
percent controlling interest in Ulusoy Elektrik Imalat Taahhut ve Ticaret A.S. Stake in Ulusoy Elektrik
(IST:ULUSE), a leading manufacturer of switchgear based in Ankara, Turkey,
with a primary focus on medium voltage solutions for industrial and utility
customers. The purchase price for the shares is approximately $214 million
on a cash and debt free basis. This constitutes the entire shareholding of
both privileged and ordinary shares of sellers Sait Ulusoy, Kubilay Hakki
Ulusoy, Enis Ulusoy and Akgul Ulusoy, and accounts for 90.153 percent of
the outstanding voting rights.
The transaction also includes transfer of Ulusoy Elektrik’s two Indonesian

subsidiaries and a medium voltage switchgear assembly and sale business
Has acted as legal adviser to:
as well as carve-out of certain assets and business from the Company.
Share transfer was completed following clearance from the Turkish
Competition Board.
On a Turkish Financial Reporting Standards basis, Ulusoy Elektrik had sales for
the trailing 12-month period ending September 30, 2018, of 555 million lira
($126 million based on the average exchange rate for the period) and EBIT
of 158 million lira ($36 million converted on the same basis).
Paksoy represented Ulusoy Family on this transaction by a team led by

Elvan Aziz (partner) together with Nazlı Bezirci (counsel), and Miray Cura
(associate). Ökkeş Şahan (counsel) supported the team on the capital
markets aspects of the transaction.
92 Transactions MAY 2019
Estrela acquires 12% Estrela Acquires 12% Interest in

TruckPad Tecnologia e Logística
Interest in TruckPad Estrela Comércio e Participações S.A., part of Grupo Tora Logística,
Tecnologia e Logística executed this acquisition of a 12% interest in TruckPad Tecnologia e

Logística S.A.
Truckpad Tecnologia e Logística Ltda. has developed a mobile application

that connects truck drivers with their clients. Its application, TruckPad, also
Legal adviser to TruckPad: enables companies to find, hire, and manage freelance drivers. Tora
Transportes and TruckPad announced an agreement for the creation
of Tora Digital during the Intermodal South America fair in São Paulo. The
service offered through the new technology platform will be to manage the
location, contracting, payment and follow-up of the transportation carried
out by autonomous truck drivers, from the beginning of the operation until
the delivery of the cargo to the recipient.
The starting point is the contract with TruckPad. Through it, Tora's operation
with freelance truckers, which contracts around 2,500 trucks every month,
will be managed by the system created by the TruckPad team responsible
for the application of the same name launched in 2012.
Legal adviser to
Estrela Comércio e Participações: Dias Carneiro advised Estrela Comércio e Participações S.A. with a team
including Anna Dutra, Karin Luiza Fernandes Rocha and Beatriz Angelo.
Barros Pimentel, Alcantara Gil e Rodriguez advised TruckPad Tecnologia e

Logística S.A. with a team including Silvia Hachiya and Luís Francisco Jardim.
Law Firms: Barros Pimentel, Alcantara Gil e Rodriguez ; Dias Carneiro

Advogados; Clients: Estrela Comércio e Participações SA; TruckPad
Tecnologia e Logística S.A.;
Globant Globant Acquires Avanxo

Acquires Globant (NYSE: GLOB), a digitally native technology services company,
Avanxo
announced it has entered into an agreement to acquire Avanxo, a
leading cloud transformation company with presence in the United
States, Brazil, Mexico, Colombia, Peru and Argentina. Subject to the
fulfilment of certain requirements, the transaction is expected to close
Legal advisers to Globant: in February 2019.
“The trans-jurisdictional nature of the deal is a welcome challenge to our

established M&A practice, as it allows us to tackle complex corporate
issues on a truly global level”, explains Napoleão Casado Filho, founding
partner at Clasen, Caribé & Casado Filho, the lawfirm responsible for the
Brazilian end of the operation.
With this acquisition, Globant continues to focus its capabilities

Legal advisers to Avanxo:
in creating digital experiences for large organizations worldwide,
expanding its broad expertise in corporate process optimization and
cloud technologies.
"Avanxo shares our vision on how to deliver profound digital and cognitive
transformations for the most demanding customers. With Avanxo, we'll
broaden our transformation approach as we keep bringing our digital
culture to optimize our customers' corporate processes," explains Martin
Migoya, Globant CEO and Co-founder. "We have found an amazing
team that complements our model, and we are confident that this
acquisition will help us propel.”
MAY 2019 Transactions 93
One Horizon Group to Acquire One Horizon Group to

Majority Interest in Maham Studios Acquire Majority Interest
One Horizon Group, Inc. (NASDAQ: OHGI) announced that it has
entered into an Exchange Agreement with the members of MAHAM
in Maham Studios
LLC, an innovative, technology-driven yoga studio concept (see http://
mahamstudio.com/), to acquire a majority interest (51%) in MAHAM.
The transaction is subject to approval by the majority of the shareholders
of One Horizon.
MAHAM yoga offers 60-minute, high-intensity yoga ‘flow’ classes

set to upbeat hip-hop and pop music ranging from Biggie Smalls to
Justin Bieber. Classes take place in a world-class, infrared and heated
facility in the heart of Miami Beach. Featuring a one-of-a-kind video Has acted as legal adviser to:
wall, MAHAM implements 3D mapping and visual effects transporting
its members from Bali to the Swiss Alps. Attracting top celebrities who
make MAHAM a must-stop when passing through Miami, not to mention
the many celebrities who live in Miami and frequent the studio along
with a trend-setting, wellness-minded crowd, MAHAM is transforming the
yoga industry. MAHAM is run by Skylar Hauswirth, the concierge to high-
profile celebrities and ultra-high net-worth individuals, who is one of the
founders of the highly successful Model Volleyball tournament that has
taken over Miami Beach for the past ten years.
NEXT MONTH WE TAKE A LOOK AT MORE:

MERGERS AND ACQUISITIONS
S P E C I A L E D I T I O N
WOMEN
IN LAW
SPECIAL EDITION
COMING SOON
Legal
LIFESTYLE
Each month, Legal Lifestyle will feature
a selection of some of the best five-star
hotels; whether you are looking for a break
to relax or a quick stop for an all-important
meeting, our choices will provide the places
with the best services, accommodation
and location for your stay.
For those looking for a break from work,

we will be presenting a variety of exclusive
destinations with a wide selection of
activities and services: from hotels including
sensational spa-breaks to those offering
the finest wine post your exhilarating ski-trip.
If you are travelling for business, we will also

showcase the best hotels to ensure your
stay is as stress-free as possible; we will be
featuring accommodation with the best
business rooms and corporate facilities,
as well as chauffeuring companies and
transportation services that can take you
to that all-important meeting with luxurious
ease.
Legal Lifestyle also aims to bring you the

best tech, gadgets and fashion must haves
for professionals just like you.
98
Legal MAY 2019
LIFESTYLE
The Althoff Grandhotel

Schloss Bensberg
MAY 2019 Legal 99
LIFESTYLE
Planning a trip to western Germany? Look no further than The

Althoff Grandhotel Schloss Bensberg - a historic, luxurious
hotel just outside of Cologne.
Housed in a palace built in 1703 by Prince Johann Wilhelm II, The Althoff
Grandhotel Schloss Bensberg is a celebration of baroque architecture cleverly
mixed with modern interior design and contemporary comforts. Originally
intended as a hunting manor, the building is the second largest baroque palace
north of the Alps and promises stunning views of Cologne’s impressive gothic
cathedral in the distance and the outskirts of the city. With a 1000m2 spa and an
indoor pool, nine conference rooms and a ballroom, as well as two restaurants to
cater to all tastes, this hotel actually does have it all.
Historic features like domed frescoes and puttos still remain in The Althoff
Grandhotel Schloss Bensberg, giving it character and charm in spades. The 84
rooms and 36 suites are elegant, spacious and bright, with some original period
features retained. For a real taste or luxury, stay at the 155m2 Presidential Suite,
which comes with its own whirlpool tub and a private sauna; but to really ease
away the aches of the day, head down to the 4 Elements Spa. Kitted out with an
indoor swimming pool, a sauna and eight luxurious treatment rooms, there really
is nowhere better to rest and rejuvenate. If you fancy a sweaty session before
breakfast or after a day of exploring Cologne, visit the spa’s state-of-the-art gym
where a personal trainer could help you keep your training on track even when
travelling.
Indulging in a meal at Restaurant Vendome, where three-Michelin-star

Chef Joachim Wissler cooks up a storm, is a must when staying at The Althoff
Grandhotel Schloss Bensberg. Less formal dining is in the hotel’s Italian Trattoria
Enoteca where guests can indulge in hearty fresh pasta and light fish dishes.
Breakfast features a delicious continental buffet where you’ll find an extensive
selection of all the staples you’d need to fuel up for the day.
With its perfect balance of unique history and contemporary luxe, as well as
phenomenal cuisine, there’s no place better for your next visit to Cologne than
The Althoff Grandhotel Schloss Bensberg!
For more information or to book your stay, please go to:

www.althoffcollection.com
LAWYER MONTHLY

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WILL ROBOTS EVER GET WORKER’S RIGHTS?

A NOTE FROM THE EDITOR PUBLISHER

Welcome to the May 2019 edition of Lawyer Monthly

are still struggling to find ways to tackle financial crime. We LAWYER MONTHLY©2019

INSIDE THIS ISSUE

34. Employment Law

36. Monetising Your IP

SPECIAL FEATURES 38. Intellectual Property

41. Licensing Your IP

58. The Rise of the Legal Freelancer

59. The Importance if Networking in the Legal

66. Pension Fraud

82. Criminal Convictions & Discrimination

COMPLETING THE DEAL

"Whats the definition of a robot?

"That's a very deep

"This could potentially overhaul

7.5 Million Brits Fall Victim to Seller Fraud

Home Office Announces Start Date for Major

Intellectual Property Vital for British Economic Growth

Tariq Imam Promoted to Partnership

Leading international law firm Clifford Chance announced the

This follows the announcement of Mo Al-Shukairy's appointment

Mo Al-Shukairy added, "We are very pleased to welcome Tariq

Thus, even though the tool was devised to be neutral

From whether (human) employees should be

The Artificial Intelligence Hype

Although FinTech is the sector- industries, clients are beginning

law jurisdictions. In the US, where gentler reminder of that is the

When Are DPAs a Risk to Senior Executives?

Although we have only seen four agreements

A DPA can only be agreed with

wrongdoing, but were named

As a consequence, DPAs should For there to be a DPA, senior

Reforms In Divorce Law: Simpler, Faster,

The government announced is unwieldy and woefully out

if one spouse refuses to agree.

You’ve Been Served!

Not only will it help to avoid the GDPR fines that

The GDPR gloves are off 91 fines issued — most of which

However, it’s not alone. Although An attached report highlights

are increasingly common on the

Workplace Harassment Stops Here!

We only Represent Employees - For more information:

This month, we gain insight into:

Contact estate using a third party1 or

Loans and mortgages2 can

How do these professionals What are the key risks relating 1)

PEP – and conduct enhanced respectively. http://www.austrac.gov.au/sites/default/files/documents/typologies_report.pdf

on the transferee entity

How do you know the value of

You can appreciate the Without patent protection for

jurisdiction. In the EU, the ECJ to be eligible for copyright

What classifies as infringement?

Being an expert witness, of course, involves knowing every detail, risk,

THIS MONTH WE EXPLORE:

The practice of Architecture is challenging, absorbing,

managed, to make the on running architectural Your reputation during dispute

Data recovery can reveal more than you may want