When it comes to theme park injuries, a lot of the case work is swept under the rug and never heard of again. Scott Monge, Founder of Monge & Associates, believes theme parks should be held accountable by law, and provide total transparency in the cases of serious injury or accidental deaths, the numbers of which are surprisingly to most, quite high. The reason? Because theme parks are simply not held accountable for publicly revealing such numbers.

Anyone who has ever gone for a ride on a roller coaster knows the feeling. It’s a medley of hoping for the best, feeling that law of averages is on your side and finally throwing caution to the wind. Once that safety bar clamps down and the roller coaster conductor lets your ride out of the station, it’s time to let loose and enjoy yourself. For some theme park guests, the worst does come to pass and a serious injury lands them in the hospital. Even worse, a guest is killed as a result of safety oversight or an honest accident or “act of God.” As a personal injury attorney, my job allows me to help these injured victims or their families fight to make things right. Unfortunately, as you’ll see below, the defendants we go after aren’t always forthcoming with information about the incident or the victims.

A summer 2017 report from NBC News stated that injuries sustained at US amusement parks sent just shy of 31,000 guests to the emergency room in 2016. That same report, which cites US Consumer Product Safety Commission data, states that 22 people had been killed by theme park rides between 2010 and 2017. I was reading a recent ABC5 report out of Cleveland that caused me great dismay. According to the May 2018 report, the Cedar Point theme park in Sandusky Ohio – which brands itself as “the roller coaster capital of the world” – operates private police and paramedics departments. Thus, the report notes that information pertaining to patients does not need to be made public. “Having that information readily available to the public would make it easier to hold the amusement parks accountable,” a local lawyer told the television station. Indeed it would. For attorneys like myself, it would make the discovery process far more straightforward, too. While the article notes that Ohio’s agriculture department requires “stationary” theme parks to reveal an incident that forced a guest to spend the night in the hospital, the reporting process gets muddled from there. What’s more, the patients could go to the hospital with a theme-park related injury but never note to doctors that it may have been caused by a ride there.

I’ll admit that theme parks can be a hectic place – especially as equally-anxious adults and children que in line for fast thrills. During the off-season and afterhours, however, there’s no excuse for operators to not take a good long look at their equipment. The 2013 death of a woman riding a Texas roller coaster prompted the German-owned theme park to send experts to investigate what could have gone wrong. In my opinion, it’s too little too late. While all appeared to be in order before the Texas coaster departed, the victim actually questioned if her safety harness was properly secured. Inexcusable, even over the din of rowdy patrons ready to get the show on the road.

As a personal injury lawyer, I take great pride in helping clients who’ve been affected by the oversight of others. I meet with survivors and their families as we try and make sense of what went wrong, what could be resolved in court and what type of settlements can be reached. A wrongful death case, while overwhelming to pursue in the wake of losing a loved one, is still all about doing what’s right. Those responsible need to be held accountable and the financial turmoil that this sudden and tragic accident has caused can only be remedied in the eyes of the law.

In May of 2018, a landmark decision was reached by the US Supreme Court, which passed a ruling to remove federal restrictions on sports betting that was brought into effect by Congress in 1992. The state of New Jersey led the legal battle for the Professional and Amateur Sports Protection Act (PASPA) to be repealed, paving the way for each individual state throughout the country to implement and control their own legislation to regulate sports betting, as they see fit.

“Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own,” Justice Samuel A. Alito Jr. wrote for the 6-3 court majority, once the final verdict had been reached and in a statement highlighted by the Washington Post. “Our job is to interpret the law Congress has enacted and decided whether it is consistent with the Constitution. PASPA is not,” he concluded, observing that the law had violated New Jersey’s 10th Amendment rights.

Image Source: @wkyc via Twitter

Following the ruling, New Jersey has moved quickly to legalize gambling at racetracks and casinos in the state, with much of the infrastructure and legislation already in place. Meanwhile, other states around the country are expected to quickly follow suit, as the online gambling industry braces itself for a flood of what will now be legal online wagering.

All four of the major US professional sports leagues which control American football, hockey, basketball and baseball – NFL, NHL, NBA and MLB – had strongly opposed PASPA being repealed, claiming that any expansion or change in gambling laws could potentially harm the integrity of their sports. However, some were apparently more open to changes outside the courts, given the potential revenue streams that have benefitted sports such as soccer, particularly in Europe, through lucrative sponsorship and endorsement deals with the online betting industry.

Interestingly, according to a recent report in The Guardian, The American Gaming Association have estimated that around $150 billion each year has been illegally wagered on sports each year, despite PASPA being enforced by Congress since 1992. However, with these numbers set to soar and amidst fears that problem gambling could also spike, most sports betting sites and online casinos already advocate responsible gambling, with guidelines highlighting that bettors should always play for fun rather than to win money.

Image Source: @AVIXA via Twitter

How quickly each of the different states adapts to the Supreme Court ruling will depend on a number of factors, according to a list published by USA Today. Beyond the preparedness of New Jersey, legal mechanisms are apparently already in place in the West Virginia, Delaware and Mississippi. California, New York, Illinois and Michigan, amongst several others, where sports betting bills are pending.

Elsewhere, legislation needs to be drafted and proposed, while infrastructure also needs to be implemented, although many states are likely to follow the examples and the leads established by their neighbours. As such, fully legalized gambling should be commonplace throughout the USA within the next two to three years, at current estimates.

To support aspiring barristers The University of Law’s National Programme and Student Affairs Director – BPTC, Jacqueline Cheltenham, and its Careers and Employability Advisor, Anna Williams, have shared their advice on making it as a barrister.

With 16,435 practicing barristers registered in 2017 and 815 students successfully completing the BPTC, becoming a barrister is undoubtedly hard work and takes determination, dedication and intellect. The application process can be tough, but the crucial thing for applicants to do is continually re-evaluate their strengths, as well as their areas for development. However, it’s all worth it to establish a successful career at the Bar.

Don’t expect to get pupillage straight away

About a third of those who get pupillage obtain it prior to starting the BPTC; about a third get it during the BPTC year, and the final third will get it in the year (or years) after the course finishes. You are likely to become a better pupillage applicant over time.

Your set selection has got to be right

Unless your academic profile is excellent, don’t target commercial and Chancery chambers. If you’ve had no mooting or other advocacy experience, criminal and common law sets are unlikely to consider you, until you have.

Understand who you are as an applicant

Your strengths and achievements, your ‘pitch’, and how to use your backstory to differentiate yourself from other candidates in a positive way are all key. Look at biographies of junior tenants on each chambers’ website to gauge your suitability for that set.

What is it that you need more of?

Identify how you need to build your profile and strengthen your weaker areas.

• Mooting and advocacy?
• Mini pupillages?
• Pro bono or other client-facing work?
• Further academic study, e.g. a Masters?

The answer to this question is different for every candidate, but it’s important to be aware of any personal areas of development.

Application forms and interviews are tests of advocacy

As an applicant you will use your experiences as evidence to show recruiters how you meet their criteria. To do this you need to understand and use good application and interview techniques, such as STAR for competency questions. There are many events and other media which deal with application and interview skills. For example, 5 Essex Court produces an extremely useful annual report on its pupillage recruitment process, identifying how good candidates differentiate themselves. Additionally, The University of Law has created “Pupillage Interviews Uncovered” videos for YouTube.

Rogue punctuation and poor grammar are likely to be fatal

Learn how to write flawlessly. This necessarily involves learning how to proof read properly.

All the above tips require time, so start planning your pupillage strategy as early as possible. Utilising your careers service and your Inn (once you’ve joined one) are excellent starting points.

The professional ethos of law firms discourages men from taking parental leave, a new Finnish-Canadian study shows. Carried out by the University of Eastern Finland and TÉLUQ University in Quebec, the study found that the professional culture in law firms rests on traditional masculine ideology, with men regarded as the providers for their families. This view does not encourage men to combine their professional career and child care. The findings were reported in the International Journal of the Legal Profession.

The fact that few male lawyers take parental leave is an indication of gender inequality within the legal profession.

“In law firms, family policies and flexible working arrangements are mainly targeted at women, and this has a negative impact on women’s career development. If fathers took a more active role in child care, it would facilitate the emergence of a professional culture that is more family-friendly. In the process, it is also likely that this would reduce gender bias in the division of legal tasks and career paths within law firms,” Researcher Marta Choroszewicz from the University of Eastern Finland explains.

The study examined male lawyers’ motives behind taking or not taking paternity and parental leaves in law firms based in Helsinki, Finland, and in Montreal, Canada. Canadian male lawyers were significantly less keen to take paternity leave than their Finnish colleagues. This is partly explained by Finland’s longer paternity leave tradition. Instead of taking paternity leave, Canadian male lawyers preferred taking annual holiday when their child was born.

The greater popularity of paternity leave in Finland is also explained by organisational differences between Finnish and Canadian law firms. In Finland, young lawyers typically work as members of a team, and they for example face lower expectations to attract new clients than their Canadian colleagues. In Canada, the work revolves more around the individual, and even young lawyers are expected to contribute to marketing, networking and new client recruitment.

Preliminary findings from Finland show that there, too, the attitudes to paternity leave vary from one generation to the next. Law firm partners representing the post-Second World War generation and Generation X often did not take paternity leave when their children were small, and they do not necessarily understand the need of today’s young male lawyers to participate in early child care. In many law firms, paternity leaves are still regarded as optional, compared to, for example, maternity leaves.

“It is not enough that men’s right to parental leave is guaranteed by legislation. We also need organisational solutions, collegial encouragement and examples set by male law firm partners,” Choroszewicz points out.

In Finland, the right to paternity leave was enacted in legislation in 1978. In 2013, the length of paternity leave was extended to nine weeks. In Canada, taking paternity leave has been possible since 2006, but only in the province of Quebec, and the length is only half of what it is in Finland.

Research article authored by Marta Choroszewicz & Diane-Gabrielle Tremblay (2018). Parental-leave policy for male lawyers in Helsinki and Montreal: cultural and professional barriers to male lawyers’ use of paternity and parental leaves.

Since the introduction of the UK’s auto-enrolment system for workplace pensions, the cost of saving up has become a dilemma for many. Below Lawyer Monthly hears from David Bird, Head of Proposition Development, LifeSight, Willis Towers Watson, on the issues behind this predicament.

The first workplace pensions were given to nurses in 1874 and we have come a long way since then. Schemes for civil servants, police and teachers followed in the 1890s. Of the 20^th century industrialists, railway companies were the first to offer pensions, followed by businesses like Reuters and WH Smith. But it wasn’t until the post-war years that more companies started offering workplace pensions to retain skilled and managerial staff.

We are now looking to auto-enrolment, which ensures that employers provide and contribute towards a workplace scheme for all eligible members. This means that pension provision will be for everyone, rather than the few. In the last five years alone, an additional nine million people have been added to workplace pension schemes. But will the contribution rate raise that came into effect in April of this year, put this progress in jeopardy?

The benefits

The increase to auto-enrolment contributions – is the first step, with the next taking place on 5^th April 2019 - is a welcome development as it begins the move towards reaching a higher level of pension savings for many, improving retirement incomes for millions. The first step is from 2% to 5% and next year they will rise again from 5% to 8%.

The change is particularly important in light of our recent research, which found that for over two-thirds (69%) of respondents, their workplace pension plan is the main way they are saving for retirement. In addition, recent statistics from the Department of Work and Pensions found that four in ten employees eligible for auto-enrolment are under-saving. But it is also clear that the rise has potential complications; will employees be able to afford the increase, or will they, in increasing numbers, choose to opt-out.

The pitfalls

For both employees and employers, the contribution rate rise will be a challenge. Employees especially, who face stagnant wages, rising credit card debt and unstable interest rates, will find the increase difficult. Some reports estimate that the rise could make pension saving a fifth of the average employee’s available spend from 2019 – a difficult situation for some workers who are already struggling financially.

The impact could be especially strong amongst young people, who are already pessimistic about saving enough for a comfortable retirement. Some argue that young people need to save as much as 18% of their earnings into a pension, which leads to the risk that younger workers, when faced with the choice between limiting their spend on luxuries or opting out of their pension, may choose the latter. If the hill is too steep to climb, why bother starting? Opting-out could be extremely harmful to their retirement savings, especially given that people are, on average, living and working for longer.

The solution

To stop potential opt-outs, it is crucial that employers help those thinking about leaving their scheme to understand the benefits of their pension scheme. This will help raise awareness of the changes that are expected and provide guidance to ensure they continue saving sufficiently for their retirement. By using digital tools that are easily accessible and engaging, along with jargon-free communications, employers will be able to improve engagement levels and ensure minimal opt-outs, despite the changing landscape.

The auto-enrolment contribution rate rise should not be viewed as a negative by scheme members. After all it can be viewed as a deferred pay rise as their employer will also be required to increase contributions. By ensuring scheme members remain engaged through the use of digital tools, employers and pension providers have the ability to show them that saving more is a positive development that will help them to retire comfortably when the time comes.

Which are the top law schools in the US? In this short video we take a look at the current top 5 US law schools, looking at statistics like tuition & fees, lawyers rating, application fee and overall rating.

A long-running campaign led by The Children’s Society to secure legal aid for vulnerable migrant children has prompted a major U-turn by the Government.

Vulnerable migrant children who are in the UK alone have been facing a punishing combination of cuts to legal aid and skyrocketing Home Office application fees since 2013.

After a five-year long legal challenge by The Children’s Society, supported by other civil society organisations, the Government has agreed to reinstate legal aid for separated and unaccompanied children in their non-asylum immigration cases.

The Children’s Society’s research suggests thousands of children have been denied legal aid since new legislation came into force in 2013.  Since then, only a small number have been able to access legal aid through Exceptional Case Funding.

The change has left many children struggling to pay for the expert legal advice and representation they desperately need, which can cost thousands of pounds.

Reacting to the decision, The Children’s Society Chief Executive, Matthew Reed said: “The Children’s Society is delighted with this excellent news. This is an important change in policy which will go a long way to protecting some of the most marginalised and vulnerable young people in our communities.

“Legal aid is absolutely vital for ensuring that children can access justice. For children who are subject to immigration control and who are in this country on their own, it is an absolute life line. The government should be commended for this significant change for children and young people.”

(Source: The Children’s Society)

The Commodity Futures Trading Commission (CFTC) recently announced its largest whistleblower award to-date in a commodity fraud case. According to the Commission, it issued “an award of approximately $30 million to a whistleblower who voluntarily provided key original information that led to a successful enforcement action.”

“This is a major breakthrough for whistleblower protections. The CFTC has been slow in processing and granting awards for whistleblowers. Today’s $30 million award is good news for whistleblowers who expose frauds in the trillion-dollar commodities markets,” said Stephen M. Kohn, a leading whistleblower attorney and the pro bono Executive Director of the National Whistleblower Center.

“Large awards in whistleblower cases are the key in deterring future wrongdoing, and incentivizing other whistleblowers to step forward, facts that the Chairman of the CFTC recognized.” Kohn added

In light of this award, the Chairman of the CFTC, J. Christopher Giancarlo, issued the following statement:

“The Whistleblower Program has become an integral component in the agency’s enforcement arsenal.  We hope that an award of this magnitude will incentivize whistleblowers to come forward with valuable information and provide notice to market participants that individuals are reporting quality information about violations of the Commodity Exchange Act [CEA].”

James McDonald, Director of the CFTC Division of Enforcement, stated: “Whistleblower submissions have become a significant part of our enforcement program, allowing us to pursue violations we might otherwise have been unable to detect. That’s one reason why we’ve worked hard to expand our Whistleblower Program, including by increasing the protections afforded to whistleblowers that come forward. I expect the Whistleblower Program to contribute even more substantially to our enforcement efforts going forward.”

The CFTC’s Whistleblower Program, established as part of the Dodd-Frank Act, pays monetary awards to eligible whistleblowers who voluntarily provide the CFTC with original information on violations of the Commodity Exchange Act that leads to a successful enforcement action resulting in monetary sanctions exceeding $1,000,000.  Rewards under the program are mandatory for qualified whistleblowers, and must be paid in the range of 10-30% of the collected proceeds.

(Source: Commodity Futures Trading Commission)

A white paper on Brexit was published last week, setting out Theresa May's vision for the UK's future relationship with the EU. Here Malcolm Dowden, Legal Director at Womble Bond Dickinson comments on the creation of a free trade area for goods.

The government's white paper proposes the creation of a "free trade area for goods", coupled with a "facilitated customs arrangement" to allow cross-border trade to be as "frictionless" as possible. Central to those proposals is the concept of "trusted traders". For example, it suggests that: "where a good reaches the UK border, and the destination can be robustly demonstrated by a trusted trader, it will pay the UK tariff if it is destined for the UK and the EU tariff if it is destined for the EU.

The "trusted trader" concept has its roots in the World Customs Organisation (WCO). In Europe, "trusted traders" are referred to as Authorised Economic Operators. To qualify, businesses must be able to demonstrate that they have both the policies and physical arrangements required to guarantee that goods have been transported securely and are properly accounted for. To qualify for the linked status of Authorised Economic Operators (customs) or "AEOC" businesses must currently be able to show at least three years' experience of meeting customs obligations. That test cannot be met by the estimated 131,000 businesses who, according to HMRC estimates, will be brought into customs procedures for the first time. It is possible to buy-in expertise or to use intermediaries such as freight forwarders or distribution companies. However, the UK currently has only 630 businesses with AEO status (compared with 6226 in Germany and 1563 in the Netherlands). Consequently, third party AEO status and expertise is likely to be in short supply, potentially increasing the cost of accessing those services.

Attaining AEO status is not straightforward. The applications forms are relatively short, but they require a significant body of detailed evidence. Applying for (and then maintaining) AEO status therefore represents a significant investment of cash and management time. Further, the approval process leads to an assessment carried out by HMRC, which can be a significant bottleneck as HMRC resources are very limited. The AEO application process theoretically takes up to 120 days. However, experience in practice suggests that the process often takes much longer – in some cases extending from 18 months to two years. AEO status cannot be regarded as an easy route, or as a quick fix.

The usefulness of any AEO scheme depends on mutual recognition. Any end-to-end process for the import or export of goods works only if it works at both ends. The government's white paper cannot guarantee that AEO status granted in the UK would be recognised by the EU27. Consequently, it merely expresses the hope that the UK will be able to "agree mutual recognition of Authorised Economic Operators (AEOs)". Without mutual recognition, AEO status would be of little value – and mutual recognition can only be achieved through a full political agreement with the EU. In the event of a "no deal" Brexit, or of a deal that did not include mutual recognition, the "trusted trader" concept that underpins the white paper suggestions would not provide "frictionless" trade.

Below Gareth Oldale, Partner at Sharpe Pritchard, comments on the news that the ICO intends to issue a fine of £500,000 to Facebook following its investigation of Cambridge Analytica and the related misuse of personal data during political campaigns.

This is significant for a number of reasons. Firstly, this would be the highest fine that the ICO has ever issued, eclipsing the previous record of £400,000. It also represents the highest fine permissible under UK law for breaches arising prior to the introduction of the GDPR on 25 May. Overall, it indicates how grave the breaches of the Data Protection Act by Facebook were; the ICO has brought the full might of its legislative powers to bear against the company.

Privacy activists and victims of the data breach may be disappointed that the level of the fine is not higher. Were the breach to have happened after 25 May 2018, the ICO would have had the ability to issue a fine of up to 4% of Facebook’s annual worldwide turnover (reportedly meaning a maximum fine of £479million).

However, it does not follow that simply because the ICO issued the maximum fine available under the old regime, that it would have done the same under the new regime. When determining the level of fines, the ICO must take into account various factors, including the nature, gravity and duration of the breach, steps taken by the organisation to mitigate the damage, the degree of co-operation with the ICO’s investigation and how the breach came to be known to the ICO. Any fine it issues must be “effective, proportionate and dissuasive”. Whilst Facebook is undoubtedly vast in scale, the ICO may have determined that a fine of 4% of its annual worldwide turnover was not proportionate to the breach.

Facebook too might also have engaged differently, or been more pro-active in its response, had it known that it was facing a fine of £hundreds of millions, as opposed to £500,000. So whilst it is probable that, had the investigation been conducted under the GDPR regime, the level of the fine would have been higher than £500,000, in my view it is unlikely that it would have been as high as the full 4% of turnover.

The ICO has for a long time been keen to stress that the implementation of the GDPR will not lead to a succession of “mega fines” and that it will continue to apply fines proportionately, using them as a last resort where other enforcement action has been unsuccessful or where the breach is so severe as to merit an immediate financial penalty. Issuing a fine so soon after the implementation of the GDPR at the extreme maximum possible would be a supersonic leap that would be sure to raise eyebrows as well as a challenge from the recipient of the fine.

The recent news is also interesting because this is not the end of the ICO’s investigation, merely an interim step in the process. The fine has not actually been issued as yet, and Facebook has been invited to respond to the ICO’s Notice of Intent. Whether Facebook will seek to argue for a lower fine remains to be seen. On the one hand, it may feel a sense of relief at only picking up a £500,000 fine when in a post-GDPR world the fine would likely have been much higher. On the other hand, however, Facebook may feel compelled to test the fact that the fine is the maximum available to the ICO – i.e. that the breach could not, in that sense, have been worse.

Facebook and other multi-national tech companies will be eager to understand whether the Facebook breach sets a new bar against which future breaches will be measured, and Facebook may wish to rebut insinuations that the breach is the worst that the ICO has ever investigated (or at least has led to the most severe penalty), or that in future the benchmark will not be £500,000 for fines of this nature, but the maximum allowed under applicable law.

The ICO’s enforcement action also continues against other parties involved in the breach. Most notably, the ICO has issued a criminal prosecution for SCL Elections Ltd (the parent company of Cambridge Analytica) for failing to properly deal with the ICO’s earlier Enforcement Notice. At a time when ICO resources are stretched very thinly, it is reassuring to see that this investigation appears to be leaving no stone unturned. The ICO’s reputation is, I think, being enhanced by the robust and comprehensive approach it is taking to this matter.