Understand Your Rights. Solve Your Legal Problems
Pepper Hamilton LLP advised Strabag SpA, the Chilean subsidiary of the Austrian construction firm Strabag SE, in connection with the negotiation of a nearly $2 billion amended and restated construction contract on the Alto Maipo Hydroelectric Project near Santiago, Chile. The project involves the construction of tunnels through the Andes Mountains for a total length of 73 kilometres, and the hydroelectric plant will have a total installed capacity of 531 MW. The amended and restated construction contract was signed on February 19, 2018.
Thereafter, Alto Maipo negotiated amendments to the project financing documents with a syndicate of international development banks (IADB, OPIC and IFC) and Chilean and international commercial banks, which increased the project financing to approximately USD 3 billion. Pepper Hamilton also advised Strabag in connection with certain aspects of amended project financing documents. The second restructuring of the project closed on May 9, 2018. Partner Albert Bates Jr. led Pepper Hamilton’s team and was aided by Partners Robert S. Hertzberg and Robert A. Gallagher and Associate R. Zachary Torres-Fowler.
NIBC Mezzanine & Equity Partners acquires substantial minority interest in Roadshow Group B.V. based in Utrecht. The company is active in the field of live event marketing and the rental of roadshow- and promotional vehicles. Roadshow Group, known in The Netherlands under the brand name EventRent Roadshows and in Germany as Rainbow Promotions or ShowTruckMarketing, together with its majority shareholder and founder Martijn van Riet were looking for a partner to support their growth ambitions with the expansion of the rental fleet and the international development of the group companies. For NIBC MEP, the Roadshow Group is a company with a great deal of growth potential which is a tremendous addition to its portfolio.
Led by Jossip Hesse, Buse Heberer Fromm Rechtsanwälte Steuerberater PartG mbB provided NIBC MEP with extensive legal and tax advice (legal/tax due dilignece, structuring, contract advice and various post-closing-issues) with regard to the indirect acquisition of the German Roadshow Group’s subsidiaries, ShowTruckMarketing GmbH and The Rainbow Promotion und Werbeservice GmbH.
Buse Heberer Formm advised in close cooperation with the lawyers of Stek Advocaten and Amstone Tax Lawyers, who had the superior lead with respect to the Dutch aspects of the transaction. Furthermore, Buse Heberer Fromm accompanied the entire transaction with regard to German antitrust law issues.
Wolora Afrin was the first female to be appointed as providing legal services in the Copyright Office Bangladesh, after its establishment in 45 years. Creating awareness, conducting seminars, recommending policies, and also helping copyright sector in Bangladesh to prosper are among her greatest challenges. She shares more with us about IP law in Bangladesh and its progression.
How does disregarding important IP compliances cause problems in Bangladesh?
Disregarding issues like awareness, IPR education, signing of Treaties, staffing and human resources development plans, ensuing royalties to copyright holders, specialised IPR courts or tribunals and not amending the old pre-existing IPR laws, are the main concerns for Bangladesh. Further, many patent applications get rejected due to lack of expertise in drafting such applications, which causes many great innovations to go in vain. The Government is also deprived of earning huge revenues for lack of monitoring such issues and also for not providing adequate facilities to protect IPR, frustrating innovative minds and creating miscarriage of justice.
You advised on buying Media Rights regarding FIFA World Cup 2018 after the availability of 4G internet in Bangladesh. How did it occur?
Yes, it was the first time that exercising Media Rights in Bangladesh for such a show like FIFA World Cup 2018, and it was a big concern. Many illegal mobile apps, websites and live streaming sites were made, which was reported to the Cyber Security Office, Ministry of Information, ICT Division and Bangladesh Telecommunication Regulation Commission, for them to take immediate action. Filing of criminal and civil cases were eventually initiated, and the Government took great initiative to stop the illegal broadcasting and selling of counterfeit jerseys and other products using the FIFA logo.
What three things do you think clients should consider when thinking to trademark their business?
According to the World Intellectual Property Organisation (WIPO), on average, approximately five million trademark applications are filed every year worldwide. Creative and thoughtful branding are key to many businesses. Trademarks allow you to distinguish the product and service from those of the competitors, symbolising the business reputation and distinguishing with other businesses.
Every client should firstly, understand the importance of trademark and its applications in the market and bear in mind that trademark registration has no immediate edit button.
Secondly, selecting a distinctive term for their brand name. The more unique the trademark is, the easier it is to protect and enforce the rights on it.
Thirdly, the business needs to be forward thinking and broad enough to accommodate any potential future changes the business may encounter to avoid any hurdles and additional costs.
How do you expect to see the world of IP in the upcoming years?
Bangladesh is a country which has high potential for investment. IPR is still new in Bangladesh but its emerging. In future enforcing IPR and complying with it would be inevitable. As such the future of IP in Bangladesh is very demanding as recommendations are constantly being made tailoring to eradicate the IPR system constraints.
Wolora Afrin
Managing Partner
Wolora Ashfaque & Associates
5-b/15 (ground floor) Sohid Solimullah Road, Mohammadpur, Dhaka-1207 Bangladesh
Mobile +8801970000770, +8801711873438, TNT-+88029104013
FAX- +88028150556
Website – www.woloraashfaque.com
Email- legalsolutions@woloraashfaque.co
Wolora Afrin is a young dynamic lawyer in the field of intellectual property law. She was called to the Bar of England and Wales in 2012.
She is the Managing Partner at Wolora Ashfaque & Associates, a boutique law firm in Bangladesh, providing specialised services in various legal sectors. Wolora is mostly involved in providing legal services regarding intellectual property law, technology transfer, media & communication, and alternative dispute resolution.
Her passion as a lawyer does not limit her in pursuing her dreams. She is also a female entrepreneur involved in social activities creating awareness in the legal infrastructure to ensure the protection and utilization of IPR for the development of ‘knowledge economy’. At this young age, she has also achieved remarkable success in her career. She is currently the President of a Collective Management Organisation (CMO) namely, Licensing & Collecting Society for Cinematograph film (LCSCF) the first proper functioning CMO for the collection of royalties in audio-visual sector licenced by Ministry of Cultural Affairs, Bangladesh.
“Injustice anywhere is a threat to justice everywhere.” - Dr. Martin Luther King
Flynn Duncan Broady, Jr. was born in Queens, NY, August of 1963. He is third generation military and his father and Grandfather served in the Army, so naturally, he was exposed to military life at an early age. To serve his country and defend its constitution were embedded in him early on. Below he speaks about his journey into law, and how he will work towards his aim of ensuring equality for all.
“Most of my childhood was during the Vietnam War. During that time, I didn’t watch much television, unless it was about war or our American history. I was so entrenched in the life of a soldier that I thought, for most of my life, I would grow up, get drafted, and go off to war, never to return. I had even decided that I wanted my burial to be in Arlington Cemetery.
“During my father’s military career, my family and I moved around a lot. We lived in New York, New Jersey, Georgia, Germany and Kentucky before settling in Birmingham, Alabama.
“Traveling the world as a child, I attended school and had friends of all nationalities. Birmingham was the first place that I lived and attended a school that lacked diversity. That experience changed my life. I began to read and gain knowledge about inequality, racism and hate. I knew at that time that I wanted to make a difference and that equality was not an unreachable ideal.
“I graduated high school as Valedictorian and earned an Engineering Scholarship to Tennessee State University. Because of my desire to serve my country and help my mother, who at that time was struggling to care for four children, due to my parent’s divorce, I completed one year at Tennessee State University before enlisting in the Army.
“I enlisted in September of 1982 and was shipped out for basic training to Ft. Benning, GA in November. That was an incredible experience for me. I met people from all over the United States and from every socioeconomic background.
“The military taught me a lot about myself, about others, and most importantly, how to lead and get things done. I served for 26 years, including three overseas tours. I served in Operation Iraqi Freedom as an Infantry First Sergeant. Leading Alpha Company 1st Battalion 6th Infantry Regiment of the 1st Armored Division and being a Platoon Sergeant in the 101st Airborne Division were the highlights of my career.
“While in the service, I continued my education, one class at a time. I obtained a Bachelor of Science Degree in Public Management from Austin Peay State University. During my assignment to teach ROTC at Seton Hall University, I attended Seton Hall University’s School of Law and obtained my Juris Doctorate. Upon retirement, I used the rest of my GI Bill to obtain a Master’s in Public Administration at Kennesaw State University.
“In June of 2008, I moved to Georgia and took the bar exam. I immediately began submitting my resume in search of a position as a City or State prosecutor. The first office I visited was the Cobb County Solicitor General’s office. Shortly thereafter, I was interviewed, made an offer and accepted a position as an Assistant Solicitor General. I was ecstatic.
“During my time with the Cobb County Solicitor General’s Office, I have prosecuted all types of misdemeanors, from simple traffic violations to domestic violence charges. In April 2015 I left the Solicitor General’s Office and accepted the position of Coordinator for the Cobb County Veterans Accountability and Treatment Court. This position provided me the opportunity to give back to the many Veterans who had gotten in trouble with the law due to their military service and/or substance abuse.
“I got married and returned to the Solicitor General’s Office in 2017. I currently serve as the DUI Court prosecutor. As a prosecutor in Cobb County, the thing I appreciate the most is the wide amount of discretion we are given as it pertains to cases, not to say that we have unlimited discretion because we don’t. However, when we see injustice, we are able to make a difference, and with that carries great responsibility. We expect the same from our leaders in Washington and at the state level, which is why I’ve decided to seek the office of Georgia’s 11th Congressional District House of Representative.”
What changes do you think are necessary to reform criminal justice in 2018?
One of the issues I am passionate about is Criminal Justice Reform. Criminal Justice Reform is critical to all citizens and is normally the first step in perceiving equality among our diverse citizens.
Key to Criminal Justice Reform is:
As both the Veterans Court Coordinator and DUI Court Prosecutor, I have seen the amazing transition Accountability court graduates make from initially becoming part of the court program to completing the court program.
Equality, in all forms, is vital for the societal growth; how do you aim to achieve this?
As a lawyer, it is important to approach every issue from as many sides as possible, to gain a better understanding. We as a nation must remember the ideals upon which our nation was founded. The inalienable rights: life, liberty and the pursuit of happiness are not only highlighted by the Declaration of Independence but guaranteed in our Constitution’s Bill of Rights. As a Congressman, I will understand that one’s rights only extend to the point that they don’t interfere with the rights of another. Approaching all issues from many different perspectives, I will seek out the solutions that promote the welfare of our citizens and the sustainment of our environment. I pledge to work with all parties to do what is best for our constituents. While at the same time stand up for those without a voice. My moral compass will never waiver, my integrity will never be in question. My values will always reflect equality, opportunity and justice for all.
All great attorneys are zealous advocates for their clients. At the same time, they exhibit and maintain their morals, values and integrity, and never waiver from them. I have stood in the gap against our enemies on the battlefield. I have represented the people of Cobb County with the highest degree of integrity, never wavering my morals or values. As a Congressman, I will do the same because that is who I am.
Equality is not an unreachable ideal.
Flynn Broady for Congress
flynn@flynnbroadyforcongress.org
flynnbroadyforcongress.org
305 Lawrence St
Marietta, GA 30060
(770) 686-5660
Do TV lawyers help or hinder our profession? From a mild obsession with Harvey Specter from Suits, all the way to being a die-hard fan of Law & Order, TV shows and films based on the legal sector have always grasped viewers. From the dramatic storylines, to the proud sense of justice being served, these programmes often showcase the highlights of the legal sphere. But, is it accurate and fooling the potential aspirational lawyers? Andrew Conway, an Employment and Commercial Litigation Partner at Lawrence Stephens, discusses more.
The legal profession is under the media spotlight like never before.
The recent royal wedding spiked interest in hit US legal drama Suits and the BBC’s divorce law series The Split - launched earlier this year - has been commissioned for a second outing. It seems the public can’t get enough of the courts, with judges and solicitors filling our screens, and it may be that lawyers are the new doctors in terms of fictional entertainment. As the profession enjoys a surge in media popularity, it’s a good time to be a lawyer.
Or is it?
There are strong cases to be made both for and against this increased media attention. Having a greater diversity in fictional depiction is positive: we don’t have to rely on Atticus Finch as our sole representative in the public imagination. These new lawyers are sharp and determined and they're importantly not all barristers. Dramas like Suits and The Split allow disciplines outside of criminal law to share the limelight, demonstrating to prospective law students that areas like family and corporate law are equally interesting and exciting. An increased media presence can be a powerful driver of recruitment and increased interest will encourage the best and brightest to enter our sector.
And, crucially, a lot of these new TV lawyers are women. Suits’ Jessica Pearson is Managing Partner at her top NYC firm, The Split revolves around Senior Partner Hannah Stern, and the BAFTA-winning 2011 series Silk made female QC Martha Costello its primary focus. These strong female characters send out the message that there is very much a place for women at the legal top table and that they are a key part of the profession - after all, women make up 48% of all lawyers in law firms and 61.6% of new solicitor admissions in 2016/17 and our public focus should reflect this. Media representation has a great social force and should not be underestimated. These modern legal dramas can play a part in encouraging future female lawyers to enter a profession which is often perceived as male-dominated.
However, there are of course drawbacks to these television depictions. Our onscreen counterparts help establish unrealistic expectations about the life of lawyers and their work. Although accuracy is important for plausibility, the ultimate goal of TV is not to inform, it’s to entertain. Liberties will be taken in the name of drama and for those not well versed in the legal profession, it may be difficult to discern these deviations from the truth.
For example, although popular, The Split was labelled as ‘cringeworthy’ by those in family law. In its bid for drama, the series suggested that the majority of divorce proceedings are antagonistic and that lawyers lack a clear strategy in seeing the case through. Legal dramas rely on last-minute revelations and in-the-moment thinking to generate narrative excitement, whereas in reality, successes are built on careful plans and tactics. Not to mention that the hours of work behind the scenes never make it onscreen as they don’t make for compelling TV. And that case successes depend upon high levels of trust and collaboration between close-knit teams, not on the individual genius of maverick individuals.
Some may see such false images as at best, misleading, at worst, harmful. This is not only for the public - who may become wary of seeking legal help upon witnessing TV lawyers’ manipulative tactics and fraught internal politics - but for law students too. These shows can drive recruitment but not necessarily retention and budding lawyers may find themselves rudely awakened when finally confronted by the reality of their chosen profession.
So, what can be done? Should we be pulling the plug on legal dramas? The answer, I feel, isn’t to commission less legal TV but more of it.
We’re in an uncertain age with the rise of technology meaning the domain of the law is having to rapidly extend, to keep pace. The recent GDPR panic across the country demonstrates that legal guidance is needed more than ever and that lawyers are individuals the public relies on.
To match this increased legal demand, however, we need increased media representation. The false images of law presented on TV will only be reduced by increasing the diversity and range of their depictions. And it’s not just on television that more can be done - voicing our opinions and dispelling myths through other forms of media is equally important.
But the main reason we shouldn’t disbar TV lawyers is something very simple. Drama zeroes in on the emotions and backstories of its characters and legal drama, however fictional, shows us that lawyers are ultimately human. The law is another profession and those who work in it have their share of successes and disappointments - and a life and relationships outside the office doors. After all, we’re just people under these suits.
Andrew Conway is an Employment and Commercial Litigation Partner at Lawrence Stephens, a leading, full-service law firm based in central London. Operating across multiple sectors from property to sport, retail and leisure to technology, Lawrence Stephens provides practical commercial advice to individuals, private companies, financial institutions, SMEs and start-ups.
The office can be a noisy space. When you need your own world to escape to in order to get through the long day ahead, the Sennheiser MB 660 headphones are specifically designed to be the ultimate business tool for maximizing your productivity.
With Sennheiser being a brand synonymous with business people on the go, the MB 660s are designed for professionals with demanding business-grade communication needs. It is a stylish, yet intricately simple device that provides premium sound quality whether you’re in the office, traveling or working out.
Sleek Design
The MB 660s are tech heavy but so simple in all other areas. Taking little room, the headphones compactly fold up to fit easily into a bag, but more surprisingly, they are sturdy yet still have a classy, premium finish. The device itself is minimalistic; the touch pad replaces traditional buttons, sticking to its tasteful style, allowing you to swipe or tap to adjust the volume, answer or reject calls, hold, mute and re-dial, as well as pausing and skipping tracks.
Noise Cancelling
By constantly monitoring your background environment for noise, Sennheiser’s NoiseGard adaptive ANC technology seamlessly adjusts the level of noise reduction in your headset. Whether you are in an all-important skype call or trying to drown out the background noise at the gym, the headset effectively cancels out unnecessary racket. Fear not, you will not miss the dreaded ‘your train has been delayed’ announcement, however, as the device does not drown out everything. It keeps in louder, more important sounds, so you are still aware.
Tech-Savvy Features
The MB 660 cleverly detects your voice and optimizes speech intelligibility as well as reduces background noise for your listener. When no speech is detected, all distracting background noises such as your keyboard or paper rustling sounds are gradually reduced to make the communication experience more enjoyable, allowing the professional environment to extend through the phone. You can even create your own sound with a choice of sound effect modes, to get the best personalised sound for speech, music and entertainment, as well as personalise and customise your audio profile and even adjust the level of noise cancellation.
Still Need Convincing?
These headphones were devised for the business person. The business person who needs clarity in their calls, without the added fuss of finding a quiet space. You need not faff around trying to switch on and connect the device - it automatically switches on when clicked in place – very clever(!) -, you can also leave the headphones on all day long, as the soft, leather ear pads cause no discomfort. The battery life lasts up to 30 hours and, unlike most headphones, they thankfully warn you in advance when the battery is low, so you won’t disconnect halfway through a call.
The MB 660’s are £385 + VAT.
We hear from David Matthews who speaks on some pretty important topics in politics, topics that we don’t hear about in the national news but should.
He states: “Corporations that own such a large part of what we call “The News” are able to do most of what they do in stealth, by avoiding the news altogether. So often citizens don’t find about the loss of their rights until those rights are gone. That’s a big problem in this country today, and we would do well to put our heads together and start to figure out how to solve it.”
We discuss more with the attorney that has filed cases against international corporations, such as Johnson & Johnson, about tort reforms and how often the common man is often overthrown by big, controlling corporations; we ask: is there a way to defeat them?
Aside from the increased use of technology, how has the legal sphere changed from when you first began practising?
The biggest change over the years has been what tort reform has done to citizens and to the legal profession. Industry controls so much of the judiciary today that any jury verdict is not even seen as a first offering anymore. All plaintiffs’ lawyers with any real experience have seen how defense lawyers today appeal every verdict we win, and quite often they get them overturned or thrown out by a higher court that’s friendly to business interests. Just as in Washington D.C., money has corrupted so much of the judiciary that it’s harder and harder every day for John Q. Citizen to get a fair shake in the courts. There’s not a plaintiff’s lawyer in Texas or anywhere else in the country who couldn’t tell you heart-breaking stories about some outrageous injustice where a judge or an appellate court has unilaterally thrown out a jury verdict that favored an injured plaintiff.
A few years ago, Texas Court Watch did a story of how the Texas Supreme Court egregiously favors corporate and business interests over those of Texas citizens, and I think Texas is emblematic of much of the country. Court Watch found that from 2000 to 2010, regular people lost 79% of the cases in which they faced off with corporations. The Texas Supreme Court overturned jury verdicts for plaintiffs in a shocking 74% of the cases it heard. The conservative justices agreed with one another a mind-numbing 90% of the time. That’s not justice; that’s a rubber stamp for corporations.
Court Watch also concluded that in looking at the voting records of Governor Rick Perry’s picks for Texas’ high court, “it becomes clear they have a strong and unmistakable prejudice against consumers.”
One might ask, “Why?” The short answer is all-too familiar: “Money.”
After Texas Supreme Court justices received a combined $724,863[1] from the oil, gas, electricity and chemical industries, Judge Don Willett[2] hit the trifecta with more than $190,000, the justices reversed a lower court award and ruled in favor of Entergy (Entergy Gulf States v. Summers[3]), declaring that an injured employee can’t recover damages from a negligent employer responsible for a dangerous work environment that harms the employee.
Texas Court Watch wrote:
“Rather than operating in fidelity with the law to bring about justice, the Texas Supreme Court has marched in lock-step to consistently and overwhelmingly reward corporate defendants and the government at the expense of Texas families.”
We don’t see these stories in the mainstream press, but we do see all these stories of how one court in St. Louis, Missouri is so unfair to the industry, as in the talc litigation. Where’s the balance?
You hear endless complaints from the far right about the so-called liberal media, but the plain fact is that the media is owned by industry, primarily by the drug industry today. Big Pharma spends billions of dollars in television advertising each year. Turn on any TV station for a few minutes and see the truth of it. That kind of money can buy lots of friendly press and make it a lot harder for ordinary citizens to get justice.
The notion of consumer protection is under heavy attack. The U.S. Supreme Court has made it nearly impossible to bring meaningful class actions anymore. The banks are bailed out by Congress and by the Supreme Court, while the people get nothing, or next to nothing, in protections. The credit card companies get to go on raping poor people with ludicrously high interest rates and check overdraw fees. The Citizen’s United decision was nothing more than legalized bribery for DC politicians, and the Supreme Court made that happen. Corporations are not people, but they get treated like people in the courts, at least until they’re supposed to be held accountable. They get away with so many things that real people would be jailed for. Maybe that hasn’t changed, maybe it’s always been this way, but the conditions for a citizen getting a fair shake in the U.S. court system seem bleaker than ever before.
The Supreme Court’s giving generic drug makers a free pass when their drugs hurt or kill people has been among the gravest injustices (as in Pliva v. Mensing and Mutual Pharmaceutical v. Bartlett), considering that more than 80% of prescriptions are filled by generic drugs. And many times, the brand drug is not even available anymore, or someone’s insurance will only pay for the generic. Where’s the sense of justice in that?
What issues do you currently see in the healthcare industry; how is this affecting your clients?
John Lennon said, “Money doesn’t talk, it screams.” As with changes in the legal profession, follow the money to see the changes and why they happened. Thanks to millions of dollars in health industry, drug company, and medical device lobbying money, patients have fewer protections today than ever before. Sixty Minutes just showed us how the U.S. Congress changed law to defang the DEA and give drug companies endless profits to create the opioid epidemic they unleashed on us all. We see person after person who was just destroyed in the broken system of Western medicine, treated abominably by doctors and medical facilities, but since med-mal pay-outs have been cut back so far by so-called tort reform, we can rarely do anything for all those victims. Every plaintiff’s lawyer will tell you that we hear one heart-breaking story after another from a person we are unable to represent due to med-mal caps. Any plaintiff’s lawyer will tell you the same thing: It would cost so much to put that case together that by the time you pay the expenses, even before you consider adding any attorney’s fees, the plaintiff could not recover any proper compensation. That’s how they’ve set it up to keep injured people out of the court room, and it has worked really well for the industry. For many thousands of real people with real injuries that were preventable, it has been a tragic injustice.
Moreover, what do you think can be done to tackle the above issues?
We all need to write our DC reps and senators, and let our clients know what is going on so that they can also write and protest the continued corporate takeover of the courts for the medical industry and the doctors’ lobby. There is ongoing legislation now that industry is trying to use to further gut the country’s tort system of protections for citizens. All of us attorneys owe it to our clients as well as to American citizens to blow the whistle on this attempt to close the courthouse door to the private citizen. Few people know what’s going on, and they need to know. They have a right to know.
Are there many common misconceptions clients have when they first approach you? Why do these misconceptions exist?
The biggest one is that most expect their case, if they have one, to be solved and to reach fruition in a very short time. In the case of most mass torts in drug and medical device litigation, we always tell them it can take from two to seven years for a case to reach a conclusion. We try to preach patience, and we also try to give our clients a realistic notion of what a given case may be worth. At the same time, we tell them there are never any guarantees. All litigation is totally speculative.
What three pieces of advice would you give to aspiring lawyers, to aid them to be successful in the sector?
Figure out what role you can play to get started somewhere and be patient. So many new graduates expect a starter CEO position, and of course that’s not going to happen. Like anything else, when you can figure out how to help others and your intentions are good and you’ve got some talent for the truth, you’ll be just fine.
David P. Matthews
Founder
Matthews & Associates │ 2905 Sackett Street │ Houston, Texas 77098 │
713-522-5250 main │ 713-535-7176 direct │ 713-535-7184 fax │ www.dmlawfirm.com
I’ve been practicing law for 30 years, the last 28 as a plaintiffs’ lawyer. I was a partner for 16 years in one of the oldest plaintiffs’ firms in Texas when I started Matthews & Associates eleven years ago. We employ ten lawyers and about 60 employees today.
My main focus has been on dangerous medical devices and pharmaceutical drugs, but I’ve also worked in many other litigation areas, including product liability, premises liability, toxic torts, you name it. I’ve filed cases against many of the biggest companies in the world, Johnson & Johnson, Cook Medical, C.R. Bard, General Electric, Bayer, Merck, Pfizer, GlaxoSmithKline, the usual suspects. We consider our firm a heavy lifter, in that we handle most of our cases ourselves, working them up right to trial and then trying them. Though in recent years we are referring out more cases than we have in the past. I guess that’s just the nature of this business. You can’t do everything well, but the cases we do choose to handle we feel we prosecute them as well as any firm in the country.
[1] http://info.tpj.org/pdf/entergymoneytosupremes.pdf
[2] http://info.tpj.org/pdf/entergymoneytosupremes.pdf
[3] http://www.texaswatch.org/wordpress/wp-content/uploads/2012/01/Thumbs-on-the-Scale_CtWatch_Jan2012_Final.pdf
With a vast amount of people working on ensuring things run smoothly, especially when the deal is cross-border and involving multiple jurisdictions and their respective legislations, employment law is often not the first aspect on the team’s mind. Jonathan Carr, Partner at Lewis Silkin LLP, discusses due diligence in employment law, and what companies should consider when investing across the pond.
The key principles of employment due diligence in the UK are no different to most other jurisdictions: check compliance with local rules, benchmark against market norms and risk-assess the likelihood of claims or problems diminishing the target’s value. But the growing breadth and complexity of UK employment law (much of it derived from EU law but here to stay regardless of Brexit) makes employment due diligence on UK targets an increasingly important and skilled task.
A number of key concepts - the right to notice of termination, protection against unfair dismissal and mandatory holiday and rest entitlements - may be unfamiliar to many US clients, particularly those acquiring in the UK for the first time, and therefore need to be carefully explained. The ability to make sweeping changes to personnel and employment terms is more challenging than on the other side of the Atlantic, although generally easier than in continental Europe.
The list of employment factors that have the potential to become show-stopping or price sensitive considerations is also far longer and less obvious than it once was. Despite this, full employment due diligence is rarely requested. More often than not the brief is to focus on ‘red flag’ concerns, highlight material irregularities and identify key areas where pre or post acquisition remedial action may be required.
Much obviously depends on the nature and size of the business to be acquired but most buyers will be looking for reassurance in the same core areas. Is the target generally compliant with employment laws? Does the target own all of the IP created by its workforce? Are there any unusual or onerous employment terms (for instance, enhanced redundancy entitlements or change of control clauses)? What would it cost to terminate some or all of the senior executive team? Are the employees all employed by the target company? Do they have the right to work in the UK? Are there recognised trade unions and is that relationship constructive? Is the target properly protected against unfair competition from departing employees? Is there a latent pension or tax liability?
Answering these standard initial questions will usually give a reasonable indication of whether the HR function is well run and the overall ‘employment health’ of the target. But a good first impression is no guarantee of immunity from problems. In an increasingly complicated world, red flags are not always to be found in the most obvious places. The employment lawyer may need to look beyond ‘hard law’ compliance into matters such as the target’s gender pay gap, attrition rates, supply chain employment practices and the way in which employee data is managed and shared. High growth start-up businesses are often amongst the most vulnerable. Inevitably, compliance with employment laws and the development of a sophisticated HR function lags some way behind the pace of growth and recruitment.
In recent years, the evolution of UK employment law has been characterised by a number of seismic developments, some political, others arising from case law decisions challenging long held orthodox thinking. The common denominator has been the profound effect these developments have had on huge numbers of companies, both large and small, and across a range of industry sectors, increasing their employment costs materially, sullying reputations or even pitching companies into class action style disputes with sizeable chunks of their workforce. Key examples include the re-calculation of holiday pay to include allowances, overtime and commission, equal pay disputes where pay disparities between female and male dominated roles which appear to have very little in common have been put under the microscope, the ethics and abuses of zero hours contracts and perhaps most significantly of all, the trend of self-employed contractors challenging their status and claiming employment or worker rights, particularly in the fast growing gig economy.
No article would be complete these days without mention of Brexit. The impact on employment laws is likely to be negligible, at least in the short term, but our economy’s dependence on EU workers over the last few decades particularly in sectors such as healthcare and construction inevitably means competition for talent and workforce shortages are likely to have a serious impact on some UK companies in the years to come. A critical part of our role working with US law firms on the due diligence of UK targets is looking over the horizon for the next big trends. What may be a successful and highly profitable employment model one minute can quickly unravel with momentous consequences.
Partner
Lewis Silkin LLP
I am a partner and specialist employment lawyer with over 20 years’ experience advising on employment law issues.
My practice has a particular emphasis on restructuring, employee relations issues, TUPE/outsourcing, transactional support and senior executive exits. My clients are similarly diverse from law firms and hedge funds to football clubs and retail brands.
Immigration: It is a sensitive topic to say the least. Brexit was half an opportunity to spew negativity towards immigrants with famous quotes, as follows: ‘they are taking all of our jobs!’ and ‘I want my country back!’… like they had lost it in the first place. The more extreme xenophobic comments surfaced from an inbuilt fear that immigrants are never good news; some believe they take our jobs without integrating well into society, disrespect the country by possibly adding to crime rates, abuse the tax system and benefits…(the list of negativity goes on).
And the UK was not the only country subjected to the notion that immigrants bring turmoil packed away at the bottom of their suitcase. President Donald Trump was not shy of expressing his concern over mass immigration from the onset and throughout. Needless to say, his views resulted in some controversial movements and moments, such as the Travel Ban and the Mexican Border Crisis, with a mix of support and horror.
We can take it from both sides; where we need to ensure our home country and its economy does not deteriorate by taking in more people we can manage, we also need to remember the importance of humanity. We also need to take a step back and think of the positives of immigration.
There is constant concern about ‘letting anyone in’, including from terrorists to thugs, but this has tarnished and thrown dirt on the backs of those who genuinely want to embrace a new home, culture and country.
This month, we decided to question on how prejudice against immigration has thus impacted the business immigration movement. What will it mean for thriving businesses if negativity keeps skilled migrant workers away, due to fear or uncertainty of being accepted – will the economy crumble? How will law firms change?
Business Immigration – Yay or Nay?
The uproar of concern can push many people off in immigrating. With the majority of people coming over to the UK because of a job, looking for a job, or to study, it is evident that many have good intentions of contributing to the society they will be surrounded by[1].
But ever since Brexit, immigration has dropped[2], and with nearly 10% of the doctors[3] in the NHS being from the EU, it is undeniable their presence is needed for the UK to flourish. In 2015/16, 11% of those joining the NHS were EU nationals (counting those for whom a nationality was known; whereas in the year ending September 2017 the figure was 8.4%[4]. With rising costs and added pressure, it clear, the NHS relies on immigration to survive, and will struggle without[5].
The news on the NHS is probably nothing new to you, but the chart below also showcases how EU immigrants impact other, vital sectors in the economy.[6]
(Infographic from: CNN Money)
The UK government has been warned about the impact legal and regulatory immigration changes could have on the economy. With immigration plummeting, but vacancies being at a record high, statistics have shown a 12% drop in the number of immigrants a year after the referendum, with politicians and businesses issuing warnings to Ministers on the disastrous effect this may have on the economy[7].
How about the US?
With no doubt about it, Trump is working hard to stick to his promise of Making America Great Again. Love him or hate him, there is no denying he has made some significant impact, especially with North Korea. He states he is dealing with immigration in the way he ‘dealt with North Korea’, for the betterment of America’s economy and its people, and a new survey does reveal that 51% of Americans approve of his handling of the economy’[8].
As aforementioned, Trump’s controversial restrictions were placed to protect US workers; and even though his policies have added around 213,000 jobs to the US economy, unemployment rates have risen by 4%. So we cant help but ask, how has Trump’s policies changed businesses?
Let see how business immigration helps:
An article from Vox stated: “When the University of Chicago’s Booth School surveyed a panel of well-known academic economists, for example, 52% agreed that admitting more low-skilled immigrants to the United States would make the average US citizen better off[9].”
The panel also agreed highly skilled immigrants would be beneficial. In general, immigrants don’t tend to want the same jobs as the nationals, instead, they are usually competing with other immigrants for the same job. Evidence also suggests that when immigration increases labour supply, firms increase investment which reduces capital per worker, therefore keeping average wages from decreasing in the long term[10].
With around 5 million immigrants are working in the US[11], immigrant business founders have grown more important to the economy over time. Daniel Costa, the Director of Immigration Law and Policy Research at the Economic Policy Institute, stated: “Immigrants are overrepresented in a lot of occupations in both low and high-skilled jobs.
"You'd feel an impact and loss in many, many different occupations and industries, from construction and landscape to finance and IT," he explained[12].
Immigrants only make up 13% of the US population, but they contribute to nearly 15% of the country’s economy output, according to a 2014 report from the Economic Policy Institute[13], so a decline in immigration would certainly be felt in more ways than one.
One of Albany’s largest law firms - Whiteman, Osterman and Hanna - even claimed that they have noticed around a 40% increase in 2018 in the number of cases where the government asks for more documentation regarding legal immigration[14], which has not only impacted the legal firms specialising in immigration, but it has also impacted businesses, large and small.
This also goes to show the impact these changes have had on law firms. With immigration policies being amended, employers are having to provide more documents and evidence, as well as dealing with deportation proceedings, meaning law firms such as Whiteman, Osterman and Hanna have seen an increase in immigration matters, leading their firm to appoint more attorneys to expand their firm to deal with the growing work around immigration.
Good news for law firms, however, these administrative changes have slowed down the visa process, where some businesses, especially SMEs, have felt the impact. Some have not had time to apply for H-1B visas which has impacted their business, and the costs [of the visa] have resulted in overall lower salaries throughout their company[15].
But by changing policies and perceptions of [business] immigration has made it harder for foreign workers to stay. Earlier this year in May, the Department of Homeland Security proposed a rule to end an Obama provision that allows certain foreign entrepreneurs to be considered for parole to temporarily go to the US to develop and build their start-up businesses[16]. Immigrants are actually twice as likely to start a business than American-born citizens, and by making it harder for them to do so, can cause severe detriment to its economy.
And even though Trump has been successful in creating work, who will fill the gaps – especially when unemployment is increasing? Immigrants are usually after seasonal jobs, but with perceptions towards immigration changing and changes in visa applications, such as USCIS announcing that non-citizens that are denied their application for a “benefit” - such as an extension or change of status, a green card, or citizenship[17] - could be placed in deportation proceedings, things for the country could change.
It is without doubt that an integrated globe has bettered societies in several different ways. It is a shame that a few bad eggs ruins things make things harder for those who will make a positive impact in their new dream home. And pushing morality and humanity to the side for a second, changes in laws have seen a growing backlog of US immigration cases in court and with it becoming increasingly harder for skilled workers to enter the land of the free, we can only sit and wait to see the impact of these changes to America’s economy and business landscape and more interestingly, its legal sphere.
[1] https://fullfact.org/immigration/eu-migration-and-uk/
[2] https://fullfact.org/immigration/eu-migration-and-uk/
[3] https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7783#fullreport
[4] https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7783#fullreport
[5] https://www.politico.eu/article/nhs-chiefs-sound-alarm-about-brexit-impact-on-health-workforce-nurses-doctors-migration/
[6] https://money.cnn.com/2017/10/18/news/economy/brexit-immigration-uk-eu/index.html
[7] https://www.independent.co.uk/news/uk/home-news/brexit-uk-immigration-workers-employment-2018-latest-updates-a8420781.html
[8] https://www.nbcnews.com/think/opinion/has-donald-trump-really-made-america-economically-great-again-ncna886161
[9] https://www.vox.com/policy-and-politics/2018/1/30/16934726/trump-immigration-values-decline
[10] http://budgetmodel.wharton.upenn.edu/issues/2016/1/27/the-effects-of-immigration-on-the-united-states-economy
[11] https://www.cbsnews.com/news/immigrants-impact-on-the-u-s-economy-in-7-charts/
[12] https://abcnews.go.com/US/immigrants-us-economy-disaster-experts/story?id=45533028
[13] https://abcnews.go.com/US/immigrants-us-economy-disaster-experts/story?id=45533028
[14] https://www.bizjournals.com/albany/news/2018/07/26/immigration-changes-under-trump-administration.html
[15] https://www.inc.com/zoe-henry/trump-changes-to-h-1b-impact-entrepreneurs-2018.html
[16] https://www.uscis.gov/humanitarian/humanitarian-parole/dhs-proposes-remove-international-entrepreneur-rule
[17] https://qz.com/1323136/a-uscis-immigration-policy-change-threatens-non-citizens-with-deportation-if-they-lose-status/
Apax Partners has announced the sale of the RC Concept group, a major player in the design of temporary, point-of-sale advertising, to CM-CIC Investissement. Backed by Apax Partners Development since 2011, RC Concept was an EPF III fund portfolio company.
Founded in 1990 by Raphaël Cohen, the RC Concept group is composed of 14 companies operating in as many complementary brand communication businesses serving the luxury goods and cosmetics sectors. Since Apax Partners Development invested in the company, RC Concept’s revenue has increased fivefold and now totals nearly €65 million. Its growth strategy is based on three dominant themes: international, digital transformation, and acquisitions.
Those involved in the transaction
CM-CIC Investissement: Stéphane Vermot-Desroches, Germain Debaene
