Understand Your Rights. Solve Your Legal Problems
When do patients or survived family members have a viable malpractice claim?
There is no easy answer as to when or in what circumstances a patient or their family members may have a viable malpractice claim. It is important to always bear in mind that doctors or other health care practitioners are not guarantors of a perfect, or even a good outcome. Bad outcomes can and do happen despite proper care. It is a common mistake and perhaps only human to think that because the patient died or sustained an injury or outcome that was not as expected, that someone must have made a mistake. One does not follow from the other. Rather, the question must be asked and answered as to whether the health care practitioner failed to meet a reasonable standard of care for someone of like education, training, and experience, and if so, whether it was this failure that led to the harm complained of. It is also important to know that the conduct of the health care practitioner cannot be judged in hindsight, but rather must be judged fairly and based only on what the health care practitioner knew or ought to have known at the time.
Cases involving alleged medical negligence are generally won and lost on expert evidence. It is therefore critical that at the earliest stage possible a full medical legal investigation is completed, keeping the above concepts in mind. In all but the most obvious of cases, we tell our clients that we cannot advise them as to whether they have a viable claim for malpractice until we have ordered and reviewed all of the relevant medical records and had them reviewed by outside, neutral experts in the appropriate medical fields to comment on whether the standard of care was met or missed and whether any purported breaches in the standard of care were causative of the harm. It is important to bear in mind the cost and complexity involved in both investigating and prosecuting these cases as these factors play an obvious role in determining the viability of any claim. Where the patient has made a full recovery or has been left with only minor irritation or injury, it may not make any economic or rational sense to proceed with a claim in negligence, even if liability could be established. In that regard, it is also important to keep in mind that our law only compensates for what did happen as a result of an act of negligence, not what could have happened. We often get calls from people complaining that their doctor made a terrible mistake and that if the problem had not been caught by them or someone else, they would have died or sustained serious injury. While this is of course concerning, it is not necessarily compensable at law. In these situations, it may well be the best course of action to make a complaint to the appropriate regulatory college in the hopes of helping ensure that it does not happen again, rather than pursuing a claim in negligence.
Cases involving alleged medical negligence are generally won and lost on expert evidence.
How do you try to determine the above conclusion, to ensure they have a claim strong enough to fight?
As noted above, we approach the determination of viability through a detailed and comprehensive medical legal investigation. The first step is getting the whole story through careful interview of the patient, potentially family members and anyone else who may have detailed knowledge of the events at issue. The next step is obtaining and carefully reviewing all of the relevant medical records. This includes not only the patient chart from the health care practitioner or hospital at issue, but possibly pre-existing records as well. It is also important to order the entire record and to know what is and is not included. I say this because simply ordering the hospital record will not result in receiving any imaging studies such as MRIs or CT scans. These must be separately ordered from the hospital or its imaging department. Similarly, some records including fetal heart strips may be stored separately and sometimes off site and may need to be separately ordered. Once all relevant records are ordered and obtained, we then conduct a detailed review of the records and start to put together a detailed chronology of the care. We also index and brief the records so that they are in a workable order for use both by our office and the experts we engage. Once fully briefed, we then provide the records to the appropriate expert or experts for their review and comment. In choosing experts, it is important to make sure you are comparing apples to apples. In other words, that the expert is at one with experience, training, and expertise as the person on whose care they are commenting. Once the expert has completed their review, we then meet with them either by telephone or preferably in person to go through their opinion. This step is perhaps the most essential in the process. It is fundamental that we gain as full an understanding as possible about the relevant medical concepts in order to be in a position to put the expert’s opinions in context. It is equally important that we have this opportunity to ask the expert specific questions about each aspect of the care involved in order to truly test whether the standard of care was met or missed and if so, how. It is also of paramount importance that the issue of causation be fully investigated with the same care and attention as the standard of care issues. In that regard, it must always be borne in mind that our law does not compensate for loss of chance, but only where it can be established that, on a balance of probabilities the harm would have been avoided had the standard of care been met. Sometimes the same expert can opine on both standard of care and causation, but many times that is not the case. This needs to be carefully considered and is sometimes overlooked. Just as careful thought needs to be given to what expert is qualified to comment on the standard of care, equal thought needs to be given to the causation expert or experts.
It is also of paramount importance that the issue of causation be fully investigated with the same care and attention as the standard of care issues.
Can you still claim damages even though a consent form was signed?
The short answer is yes. A consent form does not excuse the health care practitioner from his or her obligation to meet a reasonable standard of care in the performance of the surgery or other duty. The consent form provides evidence as to whether consent was obtained and whether that consent was informed in the sense that material risks were disclosed and discussed.
Some patients may trust that their doctor tried all they can; how can patients determine whether their doctor has been negligent towards them?
Most patients do trust their doctor, and so they should. The vast majority of doctors are kind and compassionate professionals who strive every day to act in their patients’ best interests. However, even the most caring and expert physician can make a mistake. The question to be asked when harm does occur is whether it resulted from a breach in the standard of care. A careful and rigorous evaluation of that issue based on the steps set about above is, at least in our experience, the best means to determine that answer.
A consent form does not excuse the health care practitioner from his or her obligation to meet a reasonable standard of care in the performance of the surgery or other duty.
In light of damages, what are the options for clients in terms of types of damages?
Like any personal injury claim, damages are generally broken down into four categories: general damages for pain and suffering; care costs; loss of income or competitive advantage; and, Family Law Act damages for loss of care, guidance and companionship. It is also important to always keep in mind that in a medical negligence claim, the Ministry of Health has a subrogated claim for the cost of insured health care services which were incurred due to the act of negligence and the Ontario Health Insurance Plan must be put on notice. A detailed discussion of each of these heads of damages is probably a topic best left for another time, but the question of damages starts with an understanding of causation and a careful evaluation of all of the harm caused by the wrongful act. That said, it is of vital importance to then separate the analysis of causation from the analysis of damages. In some cases, the evidence may establish that even with proper care, there was a chance that the harm would still have occurred. It is easy to fall into the trap that in this scenario, the damages should be reduced by that same percentage. This is not the correct approach. Once it is established that the wrongful act caused the harm on a balance of probabilities, causation is established as a fact and the injured patient is entitled to his or her full damages.
Duncan is a Partner and head of the Medical Malpractice group at Neinstein Personal Injury Lawyers. He primarily acts on behalf of plaintiffs on cases involving all areas of medical negligence including obstetrical negligence and surgical negligence. He also acts for plaintiffs on all types of catastrophic personal injury claims including claims for institutional negligence, occupier’s liability, motor vehicle accidents and product liability matters. Duncan also handles complex multi-jurisdictional cases to assist Ontario residents in recovering damages where the injuries occurred in a foreign jurisdiction and was counsel on Van Breda v. Club Resorts, the leading Canadian case on jurisdiction. In addition to a full trial and appeal practice in these areas, Duncan also provides co-counsel assistance to other lawyers in handling complex medical negligence cases at both trial and appeal.
The debt restructuring of Maquina de Vendas Group involves approximately R$3billion (approximately US$730 million) and is considered to be Brazil's largest ever debt restructuring by a retailer.
Starboard's investment, in the amount of R$250 million (approximately US$61 million), will play a fundamental role in the debt restructuring of Maquina de Vendas Group. The investment, which is subject to the fulfilment of certain conditions, will represent a 72.5% stake in Maquina de Vendas.
Campos Mello worked on the due diligence of Maquina de Vendas Group, as well as the negotiation of the restructuring and preparation of the investment documents.
The Campos Mello team was led by Partner Marcus Bitencourt and included partners Marcelo Araujo Pereira and Leandro Rinaldi, and associate Camila Caetano Cardoso.
Since the California Supreme Court’s April 30, 2018 decision in (Dynamex), which set a new standard for determination of employee/independent contractor worker classification in the context of California Wage Orders, there has been a good deal of speculation and prediction about the potentially negative impact of the decision on the Gig economy and the freelancing preferences of younger workers. However, there are at least three reasons why the impact of the decision will be more limited than its proponents hope and detractors fear.
First, the new standard set forth in Dynamex does not apply to all circumstances implicating categorization of workers as employees/independent contractors. Rather, as the decision itself repeatedly states, it is limited to worker classifications under California’s Wage Orders. As such, the new classification standard adopted in Dynamex does not apply to other provisions of the California labor code, state unemployment insurance rules, worker compensation, or state tax system, which continue to apply the three-decade old Borelo test.
Second, regarding the potential impact of Dynamex on the Gig economy, the “B” factor in Dynamex’s new ABC test, seems to preclude freelancers from qualifying as independent contractors, thus going against the tide and trend of young workers preference for freelancing over traditional employment. In the new digital age, many workers, especially younger ones, prefer the mobility and flexibility afforded by independent contractor positions. In fact, some studies suggest that by 2020 over 40% of the work force will be freelancing. A post Dynamex decision by a California federal court suggests that the Gig economy may be able to avoid the reach of Dynamex by articulating a clearly distinguishable definition for their business type.
The California Supreme Court pointed to the federal wage and hour laws known as "the Fair Labor Standards Act (FLSA)” for having its own standard for resolving the employee or independent contractor issue.
Finally, certain areas of the economy, such as transportation of goods, are pre-empted by federal law, which precludes application of Dynamex to workers in these industries.
California Wage Orders set forth certain standards and requirements that apply to specific industries dealing with various work-related issues involving certain wage, hour and working conditions and requirements. Regulated by the Industrial Welfare Commission (IWC), there are currently 17 Wage Orders that apply to different industries such as the manufacturing industry (Wage Order 1), Personal Services Industry (Wage Order 2), etc. Each Wage Order deals with issues such as minimum wage, overtime pay, retaining of records and meal and rest periods. Whether a worker is classified as an employee or an independent contractor under a Work Order is crucial to businesses, especially those industries whose success is built around the “independent contractor” worker model.
Prior to Dynamex, courts applied the 11 factor Borelo standard to determination of worker status under Wage Orders. The Borelo standard is primarily focused on the business’s “right to control” the worker, along with certain “secondary” factors, including location where the services are performed, provision of tools by the hiring business, among others. Dynamex replaced the Borelo test with a simpler, three factor “ABC test”. Under the ABC test, there is a presumption in favor of classifying workers as employees, which the hiring entity can overcome by showing: “(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity's business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.”
The B prong of the ABC test enquires into whether the work performed by the worker is in “the usual course of the hiring entity’s business.” This test is likely to engender the most controversy and dispute, as it aims at the heart of the freelancing model, on which many successful businesses in the Gig economy are built and which many millennials prefer. However, a recent post Dynamex decision points to a way out for the freelance based businesses. In Curry, a post Dynamex decision, the issue was whether an employee of a company that leased gas services stations from Shell Oil Products (Shell) was also an employee of Shell under a joint employment theory. Applying Dynamex’s ABC standard, the Curry court concluded that the worker at issue was not in Shell’s “usual course of business” because the worker, as the manager of a gas station leased from Shell, was engaged in the occupation of a station manager, while “Shell was not in the business of operating fueling stations—it was in the business of owning real estate and fuel.” Curry will likely hearten independent contractor-based businesses such as employment placement agencies and other freelance based entities.
The scope and reach of Dynamex are limited to Wage Orders
In enunciating the new ABC standard, the Dynamex court acknowledged existence of different standards for different statutes implicating employee/independent contractor classification, but attributed any such apparent inconsistency to the purpose of the underling statute. The California Supreme Court pointed to the federal wage and hour laws known as "the Fair Labor Standards Act (FLSA)” for having its own standard for resolving the employee or independent contractor issue. The Dynamex court stated that like California, the federal labor codes don’t apply a uniform standard to all federal labor laws implicating worker status. The California Supreme Court also noted that, like “California wage orders, the FLSA contains a broader standard of employment than that generally applicable in other, non-wage-and-hour federal contexts.” This statement signals the California Supreme Court is content with the application of the narrower Borelo standard to non-Wage Order classifications. Post Dynamex cases have similarly noted the limitation of the ruling. For e.g., in Salgado a California Court of Appeal stated that except for claims under a Wage Order, “the common law definition of employee controlled all the other claims, including a claim for reimbursement of business expenses under Labor Code…”
Although billed as a “game changer”, the Dynamex decision will not have the reach or potency that its detractors feared.
Impact of Federal Preemption
Federal preemption laws temper the application of the Dynamex decision to certain industries. For example, the Federal Aviation Administration Authorization Act (FAAAA) preempts any state law “relating to a price, route, or service” of a motor carrier. The 1st Circuit Court of Appeals, in the context of applying Massachusetts’ ABC test, has found preemption of the “B” factor of the ABC test as conflicting with FAAAA. In Coakley the First Circuit Court of Appeal held that the FAAAA preempts the “B” prong of Massachusetts ABC test. Moreover, in Dilts the Ninth Circuit Court of Appeal recognized that even “broad laws applying to hundreds of different industries,” could be preempted by federal statutes if they have a “forbidden connection with prices, routes, and services.” In light of this recognition, California courts and agencies may find that many industries are outside the reach of Dynamex’s new standard.
Although billed as a “game changer”, the Dynamex decision will not have the reach or potency that its detractors feared. First, by its own language and emphasis, the decision is limited to Wage Orders. Additionally, many participants in the Gig economy will be able to avoid the dreaded B prong of the ABC test but clarifying the definition of their businesses. Finally, federal preemptions laws temper application of the ruling to many industries.
Dr. Dariush Adli, Ph.D., Esq. is the founder and president of ADLI Law Group. His practice is primarily focused on business and intellectual property litigation, media and entertainment law, real estate, products liability, family law, labor and employment and transportation law. He can be reached at adli@adlilaw.com.
Avis Budget Group, Inc. (NASDAQ: CAR), a leading mobility solutions provider, announced it has acquired Turiscar Group a well established, family-owned, car rental company in Portugal. The acquisition will see Avis Budget Group bring on board this leading organisation in Portugal with two distinct brands: Turiscar, a well-respected rental provider primarily in the corporate market, including light commercial vehicles; and a sister brand, Turisprime, focused on leisure and tourism business. The acquisition adds approximately 3,000 vehicles to Avis Budget Group’s network in Portugal and is a key step in strengthening its commitment to the local market. Mark Servodidio, President, International, Avis Budget Group commented: “We are delighted to announce our acquisition of Turiscar in Portugal and welcome its employees to the Group. The offerings of both brands not only extend our Portuguese network, but also increase our ability to address the needs of a wide range of customers.”
The acquisition closed 3rd October 2018. Turiscar Group employees will now work under the leadership of Gianluca Testa, Managing Director of the Southern Region, Avis Budget Group. Terms of the transaction were not disclosed.
Ardian, a world-leading private investment house, announced that it has signed an agreement to acquire a majority stake in Inula Group from Vendis Capital, Dominique Baudoux (Founder & Chairman) and Sergio Calandri (CEO).
Inula Group was created following the merger of Pranarôm and HerbalGem, two pioneering laboratories specialized in natural therapies, founded in 1985 and 1986 respectively. Inula is a key player in the herbal remedies market, specializing in fast growing sub-sectors such as aromatherapy, gemmotherapy and Bach flowers, through three brands: Pranarôm, HerbalGem and Biofloral. Thanks to its strong scientific approach and the quality of its products, the Group has experienced significant growth over the past years and is now present in more than 25 countries, with leading positions in France, Belgium, Spain, Italy and the USA.
As part of this transaction, Sergio Calandri, CEO of Inula, will reinvest alongside Ardian. Vendis Capital and Pranarôm’s Founder, Dominique Baudoux, should also continue to support the Group.
Bruno Ladrière, Managing Director, Ardian Buyout, and Daniel Setton, Director, said: “We are pleased to be partnering with Inula’s team and we thank them for the confidence they expressed during this operation. We look forward to supporting them in the next phase of the company’s development, helping them reinforce Pranarôm, HerbalGem and Biofloral in their segments in Europe and globally. This transaction is a good example of Ardian’s expertise in supporting SMEs in their ambitious growth strategy.”
Since its introduction in 1977 the Graduate Diploma in Law (GDL) has become an extremely popular entry route into law. The fast-track alternative offers students the opportunity to study another subject they are passionate about, without compromising their goal of becoming a solicitor or barrister. It's often looked upon favourably by employers, as studying the intensive course provides students with excellent time management and prioritisation skills, as well as building resilience and commitment within the individual.
As thousands of undergraduates across the country take on their first term of their law degree, we thought we’d develop a comprehensive guide of this intensive, fast-track alternative, covering what the course entails, where you can study and top tips for both prospective and current students.
The GDL explained
The GDL - or Common Professional Examination (CPE) as it is sometimes known - is a conversion course available to postgraduate students from any degree discipline. The course covers the foundations of legal knowledge required for completion of the academic stage of training.
During the course you’ll study eight key topics, providing you with a comprehensive overview of the English and Welsh legal system. These topics include:
You will be assessed by a 30 minute multiple choice question (MCQ) open book examination on Legal Method, a closed book three hour exam for each of the seven foundation subject modules and two pieces of research based coursework.
There are plenty of institutions across the UK that offer the GDL – the Solicitors Regulation Authority offers a comprehensive list of course providers - in a variety of study modes. The most common is the intensive one-year course, however there are opportunities to study both part-time and via distance learning. Applications are similar to your undergraduate degrees, however instead of using UCAS they’re completed [either] via the Central Applications Board.
Top tips for studying
Whether you opt to study the GDL full-time or part-time, be prepared for an intense workload. Since you’re essentially condensing around 3-4 years of complex legal knowledge into a comprehensive course, it’s unsurprising that it’s full on. However, here are five top tips to manage and even enjoy the GDL:
Most students find themselves easily overwhelmed by the sheer depth and quantity of content in the GDL course. There are typically a high number of contact hours and missing any one of these can have an impact of the fluidity of your course. In order to balance your seminars, lectures, coursework and social life effectively, it’s essential that you adopt good time management skills.
Take advantage of Google Calendars, to-do lists, organisation apps, any manner of technology or stationery that allows you to map out your timetable so you always have a clear understanding of what’s going on, as well as what needs to be done. This process will not only help you stay on track to achieve your desired grade, but also help you avoid burnout and unnecessary stress.
To treat your GDL like a job means you should treat your studies as your routine: stay committed, working hard week by week in order to maintain momentum. The GDL can be studied on a flexible course plan including two-day, four-day or part-time contact hours. This means that much of your time will require self-discipline to keep up with your heavy workload. The earlier you can establish a successful routine and good working practice, the better for your GDL and future legal career.
In addition to this routine, you should also allow yourself time off, as you would with any 9-5 job. Give yourself time to relax at the weekends; see friends and family and enjoy a break from your otherwise busy schedule. This attitude towards your GDL course will allow you to manage and even enjoy your studies.
You may not have made the most of your tutors throughout your undergraduate study, but it’s definitely worth establishing a relationship with them throughout your GDL course. Being a demanding course, you might start to feel overwhelmed, especially if you’ve failed to understand something in the module. Instead of suffering internally, it’s important to communicate with your tutors, ask questions and let them know when you’re struggling. As you will likely be allocated the same classmates for the duration of the course, it is also helpful to discuss course materials or difficult topics with your classmates between or after lectures, and even perhaps hold study groups together. This communication will help alleviate some of your stress, as well as helping you to properly understand your course content so you can pass your essential exams and apply this knowledge in the future.
Exams are an important part of your course and throughout the year you’ll be presented with various opportunities to practice. Coming from another degree discipline, it can take some time to get used to a new writing style and mark scheme, so it’s important to tackle practice questions early on.
We’d also advise you treat every practice paper as a proper examination - i.e. practice under timed conditions. Your GDL is unlikely to resemble your undergraduate degree, so it’s important to familiarise yourself with both the mark scheme and proper exam conditions.
Throughout this article we’ve stressed the intensity of the GDL course, but it’s important not to panic. If you’ve chosen to undertake the GDL, the likelihood is that you’re passionate about pursuing a legal career. In which case, if your course starts to seem stressful, take some time to remember why you’re studying. Remember your passion and motivations for pursuing a career in law. By recalling the bigger picture, it can help calm you down and keep you focused on the task at hand.
Written by Priya Patel, Trainee Solicitor at Lawrence Stephens Solicitors.
Equistone Partners Europe (“Equistone”), one of Europe’s leading mid-market private equity investors, announced that it has invested in Wallenborn Transports alongside the company’s current President and CEO, Frantz Wallenborn.
Founded in Luxembourg in 1920, Wallenborn Transports has since grown to become a leading provider of premium transportation services and one of Europe’s largest road feeder services (RFS) operators. The company has 16 offices in 12 countries around the world and is renowned for its excellence in quality of service, reliability, dynamic customer network expansion and ability to provide highly integrated transport services.
A trusted partner to over 800 companies in more than 40 markets, Wallenborn Transports will benefit from Equistone’s support as it further positions itself as a leading player in a fragmented European market, while pursuing geographic expansion and diversifying its offering. As he has done for the past 33 years, Frantz Wallenborn will continue to play a leading role in the company’s development and will remain a significant shareholder alongside Equistone.
Completion of the deal occurred in August.
Legal professionals are renowned for working hard and often have a healthy remuneration package to match too. But making sure that this income is maximised, and enough is set aside for retirement, is critical to achieving the lifestyle you want once you leave the profession.
Here are four keys steps that will help you get the retirement you deserve:
Before deciding how much of your monthly pay packet to set aside each month, it’s important to recognise how much income you’ll need in retirement.
Our research has shown lawyers will need on average £48,458[1] per year later in life, but this might fluctuate over the years, particularly ahead of key life or family moments.
However, often when you retire your monthly outgoings will decrease. You will have potentially paid off your mortgage, your children may have moved out, helping to reduce household bills, and you will no longer be making pension contributions. On the other hand, you may wish to travel more or help a child or grandchild out with large financial purchases such as a deposit for a house or university fees.
Our research has shown lawyers will need on average £48,458[1] per year later in life, but this might fluctuate over the years, particularly ahead of key life or family moments.
[1] *Research based on a survey of 2,624 professionals (203 Doctors, 201 Dentists, 101 Lawyers, 101 Teachers and 2018 general consumers) by Censuswide on behalf of Wesleyan, January 2017
^which.co.uk/elderly-care ( 2016/2017 ) - February 2017.
Another important consideration is factoring in care costs you may need to cover. The average weekly cost of a room in a residential home in the UK is £600 and a room in a nursing home is £841^. However, these are only average figures, so you could be looking at considerably higher figures depending on where you live.
If you are a partner, you may be looking to sell your share whilst continuing to work at your practice in a reduced or lesser capacity. Alternatively, resigning from your partnership may result in the sale of the practice or a merger. Any lump sum or income received from this will have tax implications and need to be carefully considered as part of your retirement income.
It’s therefore important to make sure that you think carefully about how much you want in retirement and when you want to access it. Once you’ve done this you can calculate how much you need to set aside each month to make sure your pension will provide this.
Knowing when to access your pension can be confusing, especially since the introduction of pension freedoms.
For some, tapping into their pension when they reach their preferred retirement age is sensible but for those that plan to stay in work past then – which is the case for around 60%* of lawyers – it might not be necessary.
It’s important to understand pension freedoms too. Since their introduction in 2015, pension freedoms mean you can now draw down a cash lump sum from your pension from the age of 55, regardless of whether you have retired or not. Accessing your pension pot early can release funds – particularly useful if you’re paying for a child’s house deposit or wedding – but could reduce the amount you’ll get later in retirement.
For some, tapping into their pension when they reach their preferred retirement age is sensible but for those that plan to stay in work past then – which is the case for around 60%* of lawyers – it might not be necessary.
There are two main types of tax that relate to your pension pot – the Annual Allowance (AA) and the Lifetime Allowance (LTA).
The AA is the amount you can set aside each year into a pension without being taxed. As of April 2014, the amount of pension contributions you can make before being taxed is £40,000 with any payments above this charged at your marginal rate of tax, which could be as high as 45 per cent.
Although £40,000 might seem a generous amount, many lawyers could unknowingly exceed this limit, especially at the end of their career. If you expect that you’ll exceed the AA in a given year you can offset this against any unused allowances from the previous three years.
The LTA is the total amount you can build up in all your pension plans over your lifetime without incurring a tax charge and is currently set at £1.03m, reduced from £1.25m to £1m in 2016. If the total value of your pensions exceeds the LTA, when your draw down your pension will incur a tax charge on the excess – reducing your retirement income.
To allow you to protect existing pension savings you have against the reduction in the LTA, HMRC introduced two new forms of LTA protection in April 2016. The first is an Individual Protection, which gives you a personal LTA equal to the whichever is the lowest of the following: (a) the value of your benefits at 5 April 2016 or (b) £1.25m. The second is a Fixed Protection 2016, which gives you a personal LTA of £1.25m.
We’re living longer and our ambitions for retirement are bigger and bolder than ever, so making sure you have enough set aside to fund the retirement you’ve dreamed of is crucial.
If you’re planning for retirement or looking to make your money work harder, speak to one of our specialist financial advisers.
Wesleyan provides specialist financial advice and services to lawyers and can provide guidance planning for retirement. For more information, go to www.wesleyan.co.uk or call 0800 092 1990.
This article is provided for information only. No liability is accepted for any consequence arising from any action or decision taken or not taken resulting from the content of this article. Nothing in this article should be taken as advice.
[1] *Research based on a survey of 2,624 professionals (203 Doctors, 201 Dentists, 101 Lawyers, 101 Teachers and 2018 general consumers) by Censuswide on behalf of Wesleyan, January 2017
^which.co.uk/elderly-care ( 2016/2017 ) - February 2017.
Coface announced that it has signed a binding agreement with SID Bank, a Slovenian public bank, to acquire 100% of PKZ capital, a credit insurance subsidiary of SID Bank.
Created by SID Bank in 2005, PKZ is the market leader in credit insurance in Slovenia, with a strong market share. In 2017, the company recorded €15.1m of gross written premiums on an export business focused portfolio.
The acquisition of PKZ by Coface is subject to usual regulatory approvals which are expected to be issued in the coming months.
Coface expects a slightly positive impact on its earnings per share in 2019 and a neutral impact on its solvency ratio.
Xavier Durand, CEO of Coface, added: “This acquisition is perfectly aligned with Coface's strategy. We are strengthening our presence in a strategic and growing region. This agreement demonstrates Coface’s ability to grow selectively and to allocate capital efficiently, in line with the objectives of our Fit to Win strategic plan.”
Selih & Partners advised Coface on this deal and their team was led by Partners Natasa Pipan Nahtigal and Jera Majzelj.
Under the FTC Act (the “Act”), the FTC tasks brands, influencers, and possibly their agencies and PR firms with ensuring that influencers disclose any "material connection" to a brand with which an influencer has a relationship. It’s basically a social media form of “truth in advertising,” to assure consumers are aware when an influencer is receiving some sort of compensation or other value from a brand for positively discussing its product or service, as opposed to the influencer merely giving their opinion, in a shout-out or otherwise, about that product or service.
However, the Act makes it clear that the brands are ultimately responsible for what their influencers, agencies, and PR firms do on their behalf. The view seems to be that more brand control provides the FTC with more security about influencer endorsement disclosures.
Under the FTC Act (the “Act”), the FTC tasks brands, influencers, and possibly their agencies and PR firms with ensuring that influencers disclose any "material connection" to a brand with which an influencer has a relationship.
But, a recent unanimous, landmark California Supreme Court (the “Court”) decision may change how much power a brand can exercise in taking that responsibility. Dynamex Operations West, Inc. v. Superior Court interpreted certain provisions of California wage and hour law, finding that too much control by a business can turn an independent contractor, such as an influencer engaged by a brand, into that business’s employee, with all the HR and other financial burdens that go with it.
In Dynamex, the Court threw out the 30-year-old test for determining whether a person rendering services to a company is an employee or an independent contractor. The Court replaced it with a new, three-prong test, which makes it significantly more difficult for companies to prove that an independent contractor relationship exists with an individual with whom it has some sort of business relationship.
From now on in California, anyone providing services to a company is presumed to be an employee, unless the business can demonstrate that the individual satisfies all three of these prongs:
Where a company cannot prove one or more prongs of the test, it faces significant liability for misclassifying its workers as independent contractors. Misclassification now carries statutory penalties of $5,000 to $15,000 for each "willful" violation, and can also expose the company to additional penalties and fines.
The third prong shouldn’t prove problematic for brands, as influencers are “customarily engaged” in providing various types of endorsement services to brands, including their own, under their own separate business/entity.
The second prong, however, could create an issue for brands. The Court used the example of a retail clothing store hiring a plumber to fix a leak as a situation that would satisfy this second prong. Plumbing clearly falls outside of the usual course of a clothing store’s business.
A brand could argue that brands rarely, if ever, employ full-time influencers, and influencers are in the business of providing independent influencer services to others.
However, part of the usual course of a brand's business is promoting and publicizing their goods or services, increasingly using social media — the same services for which brands engage influencers.
But, it’s the first prong — the individual being free from the hiring/engaging company’s direction and control, both under their contract with the company, and in fact — where this new California law can create brand-new problems for brands.
Recent consent orders detail the type of control the FTC expects brands to use with influencers, including:
It seems clear that a company’s compliance with federal law (such as the Act) is worker-agnostic, necessary to ensure its right and ability to do business, and for certain types of businesses, its licensure.
But, how does a brand now accomplish what amounts to the balancing act mandated by Dynamex? How does a brand keep an influencer “free from (its) control and direction” over how they create and provide their services, while not violating the FTC's mandates that brands must in essence train influencers in how to comply with the Act (or at minimum, provide them with that clear statement of their disclosure responsibilities), then monitor, review, and enforce their influencers’ compliance, and punish any noncompliance?
It seems clear that a company’s compliance with federal law (such as the Act) is worker-agnostic, necessary to ensure its right and ability to do business, and for certain types of businesses, its licensure.
Unfortunately, there's no bright line.
The Court did make it clear that the decision in Dynamex is - at least for now - limited to issues raised under California wage orders, such as minimum wages, overtime, and meal and rest breaks for California employees.
But, Dynamex should serve as a heads-up to all brands in California of where the definition of “independent contractor” is headed. (Wild guess — where it generates more tax revenue for the state). It consequently shouldn’t come as a surprise to anyone to see California agencies and courts start adopting its three-prong test in other employment law contexts.
In light of the new independent contractor test in Dynamex, brands in California would be wise to have their agreements and statements of disclosure responsibilities with influencers reviewed and reevaluated, to see if the necessary balance between FTC compliance and maintaining their influencers as independent contractors can be more clearly accomplished.
Paul Menes is the Co-Head of the Entertainment & Media practice group at ADLI Law Group, a Los Angeles-based litigation firm. He can be reached at (213) 623-6546 or paul.menes@adlilaw.com.
