Understand Your Rights. Solve Your Legal Problems
There are over 1 million mild traumatic brain injuries (MTBI) in the United States today, accounting for 85% of all traumatic brain injuries (Bazarian et al, 2005)1. MTBI injury was formerly referred to as concussion (Ruff et al, 2009)2, a diffuse disorder of brain cells generated by traumatic shock, but short of discernible permanent structural injury. MTBI is the most common diagnosis for referral to a neuropsychologist due to personal injury (Ruff and Richardson, 1999; Sweet and Meyers, 2012)3. Researchers have had many years to study MTBI, enabling a clearer picture regarding definitional and research design problems (Larrabee, G, 2005)4.
Post-concussion syndrome – a mixed neurological/psychological disorder
This syndrome is one of several that stand on the border between neurological (organic) and psychological. It begins with a head injury from which the patient seemingly makes recovery but then continues as a psychological condition long after any visible indices of brain damage have resolved (Lishman, W A, 1973).5 He noted that post-concussion syndrome (PCS) represents the most frequent psychological sequelae of head injury by pointing out that the longer psychological symptoms persist, the less likely they are an expression of actual brain damage. And as Symonds said almost three-quarters of a century ago, "It is not only the kind of injury that matters but the kind of head." (Symonds, C P, 1937)6.
Psychological reactions are an all-too-common consequence of PCS. Few physical injuries fail to be compounded by some additional degree of psychological response. Approximately one-third of all people requiring medical attention following an accident (and particularly the kinds of accidents likely to eventuate in litigation) are found to also suffer a significant adverse psychological response (O'Donnel, M L et al, 2004)7.
While a posttraumatic psychological reaction may occur in someone who previously had not the slightest psychological difficulty, it is far more likely in the emotionally-predisposed individuals, whose pre-trauma personality is characterised by such elements as compensatory drive, perfectionism, self-reliance, overachievement, and a preoccupation with control issues. (Fann and Sussex, 1976)8. For example, if the patient was to collapse psychologically following a modest concussion from which apparently good objective recovery was made, there were likely significant psychological problems prior to the concussion, the trauma merely providing a focal point around which such difficulties might coalesce and become manifestly symptomatic.
It is the patient's preexisting disequilibrium that plays a far larger role than the actual concussion in creating neuropsychological symptoms that follow the index trauma, the event serving more as a vehicle for rendering previous emotional and psychological problems into physical form. The plaintiff’s attorney would argue most reasonably that the patient had some problems but no manifest symptoms prior to injury and such problems the patient possessed merely predisposed them to the disability which followed. It falls to the defence to demonstrate that an illness need not be visibly symptomatic to be present, just as a cancer may be present and even incurable long before the patient develops a palpable lump or persistent cough, and that the patient was not merely predisposed or vulnerable prior to injury, but psychologically impaired (i.e. psychological disequilibrium) long before the allegedly precipitant event.
When symptoms of a concussion persist beyond expectation they are frequently described as post-concussion syndrome (PCS; Gunstad and Suhr, 2004)9. Hence, PCS is defined as a form of physical, psychological and cognitive impairment characterised by memory and other cognitive deficits, headache, dizziness, fatigue, apathy, difficulty concentrating, personality change, emotional ability, irritability, depression and anxiety (Alexander, M P, 1995)10. Here, the patient's predisposition as noted above is just as important as the traumatic impact, as different individuals will react in markedly disparate ways to what appears to be objectively the same degree of injury. Older people and people at a clinical juncture in life are particularly vulnerable. Socioeconomic status can also be a determinative factor: A janitor may continue to perform their duties acceptably despite a modest degree of brain injury that would retire a PhD. In short, what may matter is not only the degree of concussion, but the number of degrees the concussion patient holds.
To date, there are three conceptual positions of concussion, presently termed mild traumatic brain injury (MTBI). The first is that there is a relatively small percentage of MTBI patients that experience lasting problems for physical (i.e. neurological verifiable) reasons (Ruff, Iverson, Barth, Bush, & Broschek, 2009)11. The second position is that the residual problems arising from MTBI are more psychological (i.e., medically unverifiable, non-neurological) (Uzzell, 1999)12. The final position is that of Larrabee (1999) and Binder (1997)13 , who deny residual problems until further scientific investigations are conducted.
Hence, the purpose of this article is intended to provide attorneys with an updated perspective on the PCS diagnosis, and even consider its definitional dismissal from clinical and forensic use.
Traumatic brain injury consists of four categories of severity: mild, complicated-mild, moderate, and severe. MTBIs are defined by any alteration in mental status (e.g. feeling "dazed"), loss of consciousness of 30 minutes or less, post injury memory loss (posttraumatic amnesia) of 24 hours or less, and a Glasgow Coma Scale (GCS) score (an index of brain responsiveness) of 13 or higher. Complicated-mild traumatic brain injuries are MTBIs plus intracranial (i.e., inside the skull) bleeding, typically found in the emergency room brain CT or MRI. Moderate and Severe traumatic brain injuries require progressively more severe injury characteristics with intracranial bleeding and low GCS scores, 9-12 and 3-8 respectively.
There are many MTBI definitions, but the most widely used is from the American Congress of Rehabilitation Medicine (ACRM; Anderson-Barnes, Weeks, and Tsao, 2010)14 , making it useful in forensic cases. However, no mention is made in this definition about intracranial bleeding, which is the hallmark of a complicated-mild traumatic brain injury. Therefore, it is important to emphasise that any definition of MTBI should exclude bleeding inside the skull, thereby differentiating between MTBIs and complicated-mild traumatic brain injuries. At present, brain injury severity is not characterized this way i.e., all intracranial bleeding associated with MTBI is viewed equally. Since research is differentiating between MTBIs and complicated-mild traumatic brain injuries it is incumbent upon not only clinicians but also attorneys to make this distinction in their medical-legal cases.
The purpose of this article is intended to provide attorneys with an updated perspective on the PCS diagnosis, and even consider its definitional dismissal from clinical and forensic use.
The Problems With the Post-Concussion Syndrome Diagnosis
According to the International Classification of Diseases, 10th Revision, Clinical Modification (ICD-10-CM; Goodheart, 2014)15; there is a diagnostic category called PCS. It is applied for those who succumb to a concussion followed by the triage of physical, psychological and cognitive symptoms that extend beyond the immediate/acute time period after the injury. For a professional to employ this diagnosis the following criteria are required: There are organic (physical) and psychogenic (psychological) disturbances observed after closed head injury. There are problems with this diagnosis. To begin with, the definition of "organic" is unclear, plus it is an obsolete non-specific term referring to syndromes arising from brain disease (Loring and Meador, 1999)21. Neuropsychologists can measure deficits in cognitive functioning but establishing a relationship between the deficits and their source of brain disease (i.e. organicity) is extremely difficult unless there is unequivocal evidence of brain damage found in neuroradiological studies of patients who have suffered strokes, complicated-mild traumatic brain injuries, or moderate/severe brain injuries.
Because the PCS is attributed to concussions, as opposed to significant brain damage, current brain scanning techniques are not sensitive to so-called organicity. Thus, trying to determine whether an abnormal brain scan is causally related to a concussion and/or cognitive deficits is compromised since many patients without concussions or cognitive deficits have abnormal brain scans (Evans, 2017)22. There are also patients with normal scans that have significant cognitive deficits measured by neuropsychological tests (Decobert, 2005)23. Finally, there are cases where normal CT and normal cognitive functioning exists who have had concussions (Hughes et al, 2004)24. Collectively, this undermines confidence in a reliable metric between distal concussion history and "organic disturbances" measured by brain scanning, at any time, or neuropsychological testing extended beyond the immediate/acute phase following the concussion. PCS includes subjective physical complaints (headaches, dizziness), psychological (emotional and behavioral changes) and cognitive changes. These disturbances can be chronic, permanent or late-emerging.
Unfortunately, the diagnosis additionally does not take into account potential fabricating (malingering) or magnification of reporting collectively in the service of achieving a specific goal (Rogers and Bender, 2013)16. Thus, the PCS diagnosis made without empirical evidence (neuropsychological examination) to support valid patient complaints will introduce questionable clinical data (Larrabee, 2012)17. The literature is replete with studies of intentional deceptive reporting gained through unstructured clinical judgment and validity tests revealing high rates of invalid neuropsychological information: 38.5% (Larrabee, 2003)19, 58% (Armistead-Jehle, 2010)18, and 30% (Young, 2015)20 are just some examples.
Finally, physical, psychological, and cognitive symptoms are not specific to concussion (Larrabee, 2012)25 ,and if they are, they must occur more often among these patients than among those without the diagnosis (Faust and Ahern, 2012)26. To rephrase, there is an associative correlation made by the patient between their symptoms and their concussion whereby these symptoms are misattributed to the index trauma. Without all the facts-frequency of the symptoms when the disorder is present and when it is not present, the determination cannot be made. This is known as analysis of covariation (Faust and Ahern, 2012)27. This expands the source for PCS into alternative differential considerations, besides mitigating defence exposure when responsible for causation.
Alternative Causes Manifesting as Post-Concussion Syndrome
Before accepting the concussion and post-concussion diagnoses at face value, the following are potential sources that can account for ongoing symptoms: posttraumatic stress disorder (Flynn, 2010)28, orthopedic injuries (Mickeviciene et al, 2004)29, whiplash (Sullivan et al, 2002)30, chronic pain (Iverson and McCracken, 1997)31, outpatient treatment due to psychological problems (Fox et al, 1995)32, pre-injury personality disorders (Hibbard et al, 2000)33, anxiety (Meares et al, 2011)34, depression (Basso et al, 2013)35, the manner in which symptoms are elicited from the patient (Iverson et al, 2010)36, and finally litigation (Lees-Haley & Brown, 1993)37.
How Common Is the Post-Concussion Syndrome?
The rate at which a diagnosis occurs is known as the base rate, and in turn, it determines the likelihood of a clinician correctly diagnosing the condition. The base rate for PCS is not known with certainty because not all patients who incur a concussion report it to doctors (Sosin et al, 1996)38. Many researchers have concluded different base rates and I shall only reference the leaders since there are too many to list. McCrea (2008)39 reported a base rate for PCS of 1 to 5%. Larrabee (2005)40 concluded a single uncomplicated mild traumatic brain injury with neuropsychological deficits persisting for up to three months, but the norm is full recovery, with no long-term residual deficits. There is increasing evidence that questions the validity of the PCS symptom constellation. To qualify as a syndrome, a condition must demonstrate a set of specifically associated symptoms broadly present in persons who have the condition and absent those who do not have it.
There is increasing evidence that questions the validity of the PCS symptom constellation.
In summary, current research has definitively demonstrated that a patient with an MTBI has no long-term cognitive or psychological deficits. This is supported by the Committee on Traumatic Brain Injury Board on Health Care Services (Institute of Medicine, 2006)41, the American Medical Association (Giza et al., 2013)42, and 6 meta-analyses representing hundreds of studies (Rohling et al, 2017)43.
If Not Post-Concussion Syndrome, What Is the Diagnosis?
PCS is a condition in search of a specific cause. Adjustment disorder, posttraumatic reaction or post-accident syndrome/post-injury syndrome (Bush & Myers, 2013)44 are more appropriate diagnoses since they include the amalgam of physical, psychological and cognitive symptoms secondary to accidents that include concussion. Until PCS can be casually related to concussion in a reliable way, it is more appropriate for clinicians to not diagnose PCS – particularly those working in a legal setting – and alternatively consider the aforementioned conditions underscoring the persistent symptoms.
Strategic Considerations: Defence of Post-Concussion Syndrome Claims
When preparing for the defense of PCS cases, I believe they should be divided into two groups:
Defence of the PCS is found in one or more of three areas:
Essential Factors in the Assessment of the Post-Concussion Syndrome Claimant
Neuropsychological examination (NPE) is especially useful in PCS and brain injury cases (Sica, 2017)47. The NPE enable cognitive and psychological determinations to be made. The appropriate approach to this diagnosis relies on a multi-method convergent means of data gathering. Three recommended overlapping methods of NPE are: review of outside records (e.g. CT, MRI, depositions) and consultation with observation and neuropsychological, forensic, and psychological test scores (Lally, 2003)24. Lally refers to these three evidentiary sources as the "tripod" on which neuropsychological testimony rests, and further argues that this approach places a neuropsychologist at an advantage over other mental health professionals. This is particularly elaborated upon by Sica (2020) in terms of the unique position of neuropsychology in the clinical and legal setting.
Conclusions
Presently, research has brought us to the point where distinctions between MTBIs, complicated-mild TBIs, moderate TBIs and severe TBIs can be made. Attorneys and clinicians involved with concussions (MTBI) and PCS need to know the definitional distinctions and that it is impeachable for reasons discussed in the body of this article. Also, the fact that research indicates the base rate for PCS is extremely low, and thus, legal challenges can justifiably be raised when this questionable diagnosis is made with reasonable medical certainty.
The definitional evolution of traumatic brain has come a long way, providing clarity regarding the PCS diagnosis and thereby providing the fact finder a just legal outcome. May this article be the requiem for the PCS diagnosis. I rest my case.
REFERENCES
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12Uzzell, D. (1999). Mild Head Injury: Much Ado About Something. In N. R. Varney and R. J. Roberts (Eds.). The Evaluation and Treatment of Mild Traumatic Brain Injury (pp. 13-26). Mahwah: Lawrence Erlbaum Associates.
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14Anderson-Barnes, V. C., Weeks, S. R., and Tsao, J. W. (2010). Mild traumatic brain injury updates. CONTINUUM: Lifelong Learning in Neurology, 16, 17-26.
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16Roger, R., and Bender, S. (2013). Evaluation of Malingering and Related Response Styles. In A. M. Goldstein (Ed.), Handbook of Psychology: II (Forensic Psychology) (pp. 517-540). Hoboken: John Wiley and Sons, Inc.
17Larrabee, G. J. (2012). Performance Validity and Symptom Validity in Neuropsychological Assessment. Journal of the International Neuropsychological Society, 18, 625-630.
18Armistead-Jehle, P. (2010). Symptom Validity Test Performances in US Veterans Referred for Evaluation of Mild TBI. Applied Neuropsychology, 17 (1), 52-59.
19Larrabee, G. J. (2003). Detection of Malingering Using Atypical Performance Patterns on Standard Neuropsychological Tests. The Clinical Neuropsychologist, 17 (3), 410-425.
20Young, G. (2015). Malingering in Forensic Disability Related Assessments: Prevalence 15± 15%. Psychological Injury and Law, A (3), 188-199.
21Loring, D. W., and Meador K. J. (1999). INS Dictionary of Neuropsychology, Oxford University Press.
22Evans, R. W. (2017). Incidental Findings and Normal Anatomical Variants on MRI of the Brain in Adults for Primary Headaches. Headache: The Journal of Head and Face Pain, 57, 780-89.
23Decobert, F. (2005). Unexplained Mental Retardation: Is Brain MRI Useful? Pediatric Radiology, 35, 587-596.
24Hughes, D. G., Jackson, A., Mason, D. L., Berry, E., Hollis, S., and Yates, D. W. (2004). Abnormalities on Magnetic Resonance Imaging Seen Acutely Following Mild Traumatic Brain Injury: Correlation with Neuropsychological Tests and Delayed Recovery. Neuroradiology, 46, 550-558.
25Larrabee, G. J. (2012). Performance Validity and Symptom Validity in Neuropsychological Assessment. Journal of the International Neuropsychological Society, 18, 625-630. (2012)
26Faust, D., & Ahern, D. C. (2012). Clinical Judgment and Prediction. In D. Faust (Ed.), Coping with Psychiatric and Psychological Testimony (6th Ed., PP. 147-208). New York: Oxford University Press.
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28Flynn, F G (2010). Memory Impairment After Mild Traumatic Brain Injury. CONTINUUM: Lifelong Learning in Neurology, 16, 79-109
29Mickeviciene, D, Schrader, H, Obelieniene, D, Surkiene, D, Kunickas, R, Stovner, L, and Sand, T (2004). A Controlled Prospective Inception Cohort Study on the Postconcussion Syndrome Outside The Medicolegal Context. European Journal of Neurology, II, 411-419.
30Sullivan, M J, Hall, E, Bartolacci, R, Sullivan, M E, and Adams, H (2002). Perceived Cognitive Deficits, Emotional Distress and Disability Following Whiplash Injury. Pain Research and Management, 7, 120-126.
31Iverson, G L, & McCracken, L M (1997), Postconcussive Symptoms in Persons with Chronic Pain. Brain Injury, II, 783-790.
32Fox, D D, Lees-Haley, P R, Earnest, K, and Dolezal-Wood, S (1995). Base Rates of Postconcussive Symptoms in Health Maintenance Organization Patients and Controls. Neuropsychology, 9, 606-611.
33Hibbard, M R, Bogdany, J, Uysal, S, Kepler, K, Silver, J M, Gordon, W A, and Haddad, L (2000). Axis II Psychopathology in Individuals with Traumatic Brain Injury. Brain Injury, 14, 45-61.
34Meares, S, Shores, E A, Taylor, A J, Batchelor, J, and Bryant, R A (2011). The Prospective Course of Postconcussion Syndrome: The Role of Mild Traumatic Brain Injury. Neuropsychology, 25, 454-465.
35Basso, M, Miller, A, Estevis, E, and Combs, D (2013). Neuropsychological Deficits in Major Depressive Disorder: Correlates and Conundrums. In P A Arnett (Ed), Secondary Influences on Neuropsychological Test Performance (PP. 39-66), New York: Oxford University Press.
36Iverson, G L, Brooks, B L, Ashton, V L, and Lange, R T (2010). Interview Versus Questionnaire Symptom Reporting in People with the Postconcussion Syndrome. The Journal of Head Trauma Rehabilitation, 25, 23-30.
37Lees-Haley, P R, & Brown, R S (1993). Neuropsychological Complaint Based Rates of a 170 Personal Injury Claimants. Archives of Clinical Neuropsychology, 8, 203-209.
38Sosin, D M, Sniezek, J E, and Thurman, D J (1996). Incidence of Mild to Moderate Brain Injury in the United States, 1991. Brain Injury, 10, 47-54.
39McCrea, M (2008). Mild Traumatic Brain Injury and Postconcussion Syndrome: The New Evidence Base for Diagnosis and Treatment. New York: Oxford University Press.
40Larrabee, G (2005). Mild Traumatic Brain Injury. In G. Larrabee (Ed), Forensic Neuropsychology: Scientific Approach (PP. 209-236), New York: Oxford University Press.
41Institute of Medicine (2006). Evaluating the HRSA Traumatic Brain Injury Program. Washington, DC: National Academic Press.
42Giza, C C, Kutcher, J S, Gioia, G A, et al., (2013). Summary of Evidence-Based Guideline Update: Evaluation and Management of Concussion in Sports: Report of the Guideline Development Subcommittee of American Academy of Neurology. Neurology, 80, 2250-2257.
43Rohling, M, and Axelrod, B (2017). Mild Traumatic Brain Injury. In S S Bush, G J Demakis, and M L Rohling (Eds), ATA Handbook of Forensic Neuropsychology (pp. 147-200). Washington, DC: American Psychological Association.
44Bush, S S, & Myers, T E (2013). Neuropsychological Services Following Motor Vehicle Collisions. Psychological Injury and Law, 6, 3-20.
45Yochelson, L, Traumatic Neurosis, Readings in Law in Psychiatry, Ed. R C Allen, E Z Ferster, and J G Rubin (Johns Hopkins University Press, 1975).
46Green, P, Iverson, G L, & Allen, L (1999), Detecting Malingering in Head Injury Litigation with the Word Memory Test. Brain Injury, 13, A13-9.
47Sica, R B (2017) Neuropsychological Observations, Clinical Judgement, Objective Evidence and Their Variable Applications. Psychological Innovations, Vol. 2, No. 1, 21-26.Sica, R B (2020) Medical Adjustment Counseling: An Evidence-Based Neuropsychological Approach in the Care of Medical Patient, Neuro Rehabilitation, 46, 213-225.
48Lally, S J (2003). What Tests are Acceptable for use in Forensic Evaluations? A Survey of Experts. Professional Psychology: Research and Practice, 34, 491-98.
Dr Robert B Sica, PhD, ABN, FACPN
Board-Certified In Neuropsychology # 84, #255
Director, Principal, Neuropsychological Rehabilitation Services | LifeSpan
Fellowship Residency Supervisor
Jersey Shore University Medical Center, Neuroscience Division
Clinical Assistant Professor, Rutgers-Robert Wood Johnson Medical School
Clinical Assistant Professor, Seton Hall - Hackensack Meridian School of Medicine
NRS|LS
Address: 2100 Route 33, Suite 9-10, Neptune, NJ 07753
Telephone: (732) 988 3441
Fax: (732) 988 7123
Email: rsica18@hotmail.com
Neuropsychology Rehabilitation Services – LifeSpan (NRS|LS) was founded in the late 1970s. It is a joint practice consisting of a neuropsychological rehabilitation program, a multi-specialty health psychology program and a behavioural health program treating a variety of mental health conditions. The practice also treats the full spectrum of brain conditions, including but not limited to concussion, traumatic brain injuries, cerebrovascular accidents, brain tumours, dementia and learning disabilities. Finally, the practice is involved with pharmaceutical clinical trials for children and adults. NRS|LS is affiliated with Hackensack Meridian Health, Jersey Shore University Medical Center Neuroscience Division, and is staffed by licensed neuropsychologists and other healthcare experts.
Dr Robert B Sica is the originator, principal and director of NRS|LS and has lectured and published in neuropsychology and forensic neuropsychology, drawing upon over 40 years of clinical experience in private practice, hospital, academia, and law. He was the first clinical neuropsychologist on staff at Jersey Shore University Medical Center, Neuroscience Division, and Riverview Medical Center, both hospitals part of Hackensack Meridian Health, where he treats patients along with academic responsibilities teaching medical students and neuropsychological fellows. He is a clinical assistant professor at both Rutgers-Robert Wood Johnson Medical School and Seton Hall – Hackensack Meridian School of Medicine. Finally, he was a managing partner in the development of the Jersey Shore University Medical Arts Center building, a joint venture between staff physicians and the hospital. He holds a PhD in psychology and was a key leader in the 1970s brain injury rehabilitation movement.
What is the value of having a trademark registered in Australia?
When I am looking for something in a crowded online market or at a physical store, I look for the brand I know and trust, and purchase it. Simple, reliable, repeatable.
Trademarks (brands) are essential marketing tools and your business’s identifier in the marketplace. Consumers use brands to identify your offerings against those of your competitors, with the expectation of consistent quality. Brands are hugely valuable assets and can ultimately be worth billions of dollars.
Many businesses over the past year have had to dramatically pivot their offerings and move to, or ramp up, online selling. But the importance of registering a trademark has not waned and arguably has increased.
A registered trademark gives the exclusive right to use, licence and sell or transfer the trademark. The ® symbol used for registered trademarks gives notice that you have the right to use that trademark for the goods or services covered to the exclusion of others and acts a strong deterrent against would-be infringers.[1] Trademark registration also gives you a powerful tool to stop would be copycats encroaching on your territory.
It is possible to carry on your business without registering your trademark. However, relying on an unregistered trademark carries greater risk. Your rights are not located on a searchable register, meaning that another company may build their own rights in the trademark. When it comes to stopping them, you have to be able to establish a superior reputation against this other party by gathering evidence of your use over a long period. A trademark registration eliminates the need to provide that evidence and offers much greater certainty.
Trademarks (brands) are essential marketing tools and your business’s identifier in the marketplace.
The costs to file a trademark application are nominal compared to rebrand and relaunch costs.
Once your trademark is registered, and provided you keep using it, it is renewable every 10 years for as long as you want it.
When should I look at registering a trademark?
You should look at trademark protection early in the process of a new product or offering. A clearance search to check that your brand is available to use and register prior to launch gives a very good level of comfort about your ability to use the trademark and allows you to strategise to achieve registration of the brand. Being ahead of the curve and proactive can make life much easier and save on potential rebrand costs and the marketplace awkwardness of having to withdraw a brand after launch.
What should I be protecting as a trademark and how?
We often think of trademarks as words or logos, but trademarks have far more reach than that. Trademarks can also be colours, shapes, aspects of packaging, movement or animations and even sounds (think jingles) or scents. In Australia, if consumers associate any of these signs with your business, they can be protected as a trademark for your goods and services to the exclusion of others.
At a minimum, protecting your house brand is paramount. Registering trademarks for your main product and services lines is also important. Ask yourself: "If my competitor started using or registering that brand, would it bother me"? If yes, the brand likely warrants trademark protection.
We often think of trademarks as words or logos, but trademarks have far more reach than that.
A trademark registration does not protect the brand for all goods and services but covers certain goods and services nominated at the time of filing the application. There are 45 classes of goods and services to choose from. It is essential (though not always straightforward) to get the correct goods and services specified, because:
What if I see someone else using my trademark, including online?
This is where the importance of a trademark registration comes to the fore. If you see unauthorised use of your trademark in relation to goods or services covered in your registration, you are in a strong position to ask them to stop. Letting someone know you have a registered trademark is often enough to get them to cease their activity. However, if they do not stop, you can take the matter further.
Also consider the forum of the unauthorised use. If it is on social media, search engines, or an eCommerce website, you may be able to make a complaint on that platform to immediately remove the conduct. You need to have a registered trademark to do this.
What about protecting my trademark overseas?
In most cases, trademarks are national (per country) rights.[2] A trademark which is used or protected in one country does not enjoy protection in another country. However, the protection for a registered trademark can be extended to other countries by filing national applications in those countries or filing an International Registration via Madrid Protocol, designating countries who are members of the Madrid Protocol.
You can also claim priority and benefit from your Australian filing date (say 1 June 2021) if you file overseas within 6 months (on or before 1 December 2021). If someone else files an intervening trademark overseas between those dates, you can trump them with your earlier filing date.
First-to-file countries are important to identify early. In those markets, such as China, if someone files a trademark application before you (even if you have been using there) that application / registration can block not only a later application from you but also your use in that country – effectively blocking you out of the market.
What extra steps can I take to protect my trademark rights?
Once you have your trademark registered, you can build on your activities to maximise your investment by:
So you can get the best value out of your brand by registering it as a trademark. This offers more certainty, avoids unnecessary costs down the track, allows you to gain better value from your investment and protect this essential marketing tool to the exclusion of others.
[1] If your trademark is not registered, you can still use the ™ symbol to show you are using the brand as a trademark.
[2] Compare an European Community Trademark, which gives trade registration in all 27 member countries.
Elizabeth Godfrey, Principal, Trademarks Attorney
Davies Collison Cave
Address: Level 15, 1 Nicholson Street, Melbourne VIC 3000
Tel: +61 (3) 9254 2777
Fax: +61 (3) 9254 2770
Email: egodfrey@dcc.com
Davies Collison Cave is a leading Australian intellectual property legal practice that consistently files more patent applications than any other firm in the country. They provide expert services in the areas of patents, trademarks, trade secrets, copyright and design protection, licensing, litigation and related legal and commercial matters.
Elizabeth Godfrey specialises in all aspects of trademark protection including selecting, searching, applying for and prosecuting trademark applications both local and international. She has an extensive opposition and non-use practice and exceptional knowledge and expertise in running opposition matters.
Special Purpose Acquisition Companies (SPACs) have been all the rage recently. In fact, there were $166 billion in SPAC deals announced in the first quarter of this year, exceeding the number of deals seen in 2020. A feat that showcases the rise in popularity is how, last year, the US – the current front-runner of SPAC markets – saw nearly 250 SPACs, compared to 59 in 2019 and only 13 in 2016[1]. SPAC merger sizes are also reportedly increasing, with the average size of an announced merger now sitting at a whopping $2.3 billion compared to $900 million in the first quarter of 2020 and $800 million in the first quarter of 2019[2]. What accounts for this rise in popularity?
Well, aside from the fact that SPACs have been supported by celebrity endorsements and backed by sports stars, blank-cheque companies have raised jaw-dropping amounts, driving capital markets in an era where IPOs were placed on hold due to the pandemic and the uncertainty surrounding it. With the number of public companies decreasing whilst the money being pumped into public markets is simultaneously rising, SPACs have been pushed into the market as a way of bringing money into new companies. The more traditional way of going public via an IPO is famously known for being heavily regulated, and SPACs provide a somewhat easier route into the public market – but this does come with some pricked ears and raised eyebrows from critics, who have been vocal about the lack of regulation and heightened risk.
Anu Balasubramanian, Private Equity Partner and Jamie Holdoway, Private Equity Associate at Paul Hastings, spoke to us about regulation in M&A and SPACs. “SPACs are not a new phenomenon, which raises the question as to why existing securities laws are said to be unsuitable to deal with current market trends”, they said.
They explained that, fundamentally, regulators have refocused their attention on SPACs for two reasons. “Firstly, the sheer amount of capital which has been raised by blank cheque vehicles in the last twelve months, particularly the sharp acceleration in Q4 2020 and Q1 2021.
There were $166 billion in SPAC deals announced in the first quarter of this year, exceeding the number of deals seen in 2020.
“Secondly, the increasingly high valuations for businesses which are comparatively nascent when compared to those which usually opt for the conventional route to public markets.”
As aforementioned, SPACs are often described as an alternative route to IPO. This is affected by a de-SPAC, in which the listed blank cheque company merges with the operational target. “The sheer number and popularity in SPAC transactions have led some to identify a potential gap in securities laws whereby a de-SPAC is not subject to the same standard of regulation as a traditional IPO”, Anu and Jamie explained.
For example, while it is common for a SPAC to present financial projections about its acquisition target (which can be a relatively young business), companies seeking an IPO usually avoid doing so because of the associated liability risks. “SPAC sponsors have sought to avail themselves of certain “safe harbour” provisions relating to private securities litigation. Those provisions explicitly exclude IPOs, and it is yet to be tested whether a de-SPAC can take advantage of them on the basis that the initial offering of securities occurs before the de-SPAC merger”, they stated.
As such, the question is whether the two routes to the public markets should be regulated in the same way. “SPACs have allowed investors in public equities to participate in investment at an earlier stage in a company’s growth. This is arguably a welcome development after a 10-year trend in companies remaining in private hands for longer and more mature businesses shunning the IPO route because of volatility in price exploration”, Anu and Jamie expanded.
The SPAC boom has slowed down since, due to regulators paying a little more attention. According to the Financial Times: “In a series of escalating statements, US securities regulators have raised sharply worded concerns about the recent boom in SPACs, questioning everything from optimistic revenue projections to the involvement of celebrities such as Jennifer Lopez and Alex Rodriguez in the companies.” With the appointment of Gary Gensler of the Biden administration to lead the SEC, many predict that blank-cheque companies will be a top priority in the coming months. The SEC has recently announced that a number of SPACs have misclassified warrants sold to investors as equity rather than liabilities, which has thrown doubt over valuation assumptions[3]. And in fact, despite the strong start in the first quarter, fewer than a dozen SPACs completed IPOs in April, resulting in it being the slowest SPAC-filled month since June 2020.
With the appointment of Gary Gensler of the Biden administration to lead the SEC, many predict that blank-cheque companies will be a top priority in the coming months.
The key points the regulators are wrestling with centre on disclosure of information. “If SPAC vehicles present a very attractive but (arguably) high risk opportunity, they should be required to present a fair assessment to investors. Similarly, regulators are concerned about the level of transparency around how sponsors benefit from the transaction and conflicts of interest”, said Anu and Jamie.
They explained that, although investor appetite for SPACs has cooled meaningfully in recent months, prior levels of activity and the fallout from a potentially overheated market will likely force regulators’ hands to act. “It is interesting that whilst the Securities and Exchange Commission (SEC) has sought to deflate investor appetite, the Hill review in the UK essentially recommended changes aimed at promoting SPAC listings. Such reactions are driven by the parameters of the pre-existing regimes, showing that regulators have not identified a balance for these vehicles and that their approach to SPACs has been reactionary. This suggests that regulators may need more time to assess how to regulate SPACs as an investment strategy in its own right, rather than bringing them within the same parameters as the regulations for an initial public offer”, they concluded.
SPACs exploit what critics view as “regulatory arbitrage” to provide financial projections that companies launching IPOs and direct listings would normally avoid. Investors are essentially relying on trust, to a certain extent, as to whether the SPAC will ultimately be successful. But because de-SPAC transactions qualify as mergers, companies can present forward-looking statements and protect themselves from lawsuits under an exemption contained in the Private Securities Litigation Reform Act of 1995. Of course, certain SPACs are designed to allow investors to exit if an acquisition target is identified which does not meet an investor’s investment criteria, but both the process and level of disclosure at the outset of a listing of a SPAC vary significantly from what you would find in a traditional IPO.
It is expected that Gensler, an outspoken Wall Street critic, will consider stronger changes to the SPAC market, possibly calling for bankers to face the same liability risks as they would on underwritten IPOs. Disclosing more information on the names and addresses of investors involved would help identify who stands to profit or lose money, alongside structural changes that would help improve the disclosures made to shareholders, preventing ordinary investors from being ‘scammed’ in the process. The amount of capital sitting in SPACs has also drawn worries that sponsors will not be able to find suitable targets, pushing them towards companies of questionable value, pushing the idea that more clarity and disclosure is needed. Risk will always prevail when an investment becomes popular based on a product that is not yet on the market; market projections are just that, a projection and not a guarantee, and when celebrities hop on board to push the promotion of a SPAC, concerns arise. Providing additional clarity or a safeguard for failed transactions would be useful as it will give market participants greater certainty. Will tighter regulations pop the SPAC bubble? I doubt it.
Examples of prominent SPAC-mergers[4]:
FAQs with Edward Tran, Partner at Katten Muchin Rosenman UK LLP
Two key reasons – appetite for investments among the investor public and the ability of the SPAC route to offer a quicker road to an IPO as opposed to the traditional methods of going public. These factors, and the overall enthusiasm in the market, have led to healthy prices in M&A and driven the enthusiasm for SPACs.
In short, a Special Purpose Acquisition Company, or SPAC, is a vehicle that is essentially an empty shell that is formed and raises capital in an IPO with a view to acquiring a target within a given period, usually within one to two years. The SPAC then acquires the target, which effectively becomes a subsidiary of the listed SPAC. The process has proven itself as an easier means for a company to become listed on the public markets as the traditional IPO process would typically take more time and require additional disclosure and financial information.
SPACs are regulated currently – the question is one of degree and how to apply the existing rules to the large number of companies seeking to go public via a SPAC acquisition.
There is a growing concern amongst regulators that SPACs have become an end run against the rules designed to safeguard the public markets and that SPAC-fuelled acquisitions have attempted to circumvent the rules that would otherwise apply to IPOs.
The very nature of a SPAC entails that when a SPAC initially lists it is generally before the acquisition target has been identified. Investors are taking it on trust to a certain extent as to whether the SPAC will ultimately be successful. Of course, certain SPACs are designed to allow investors to exit if an acquisition target is identified which does not meet an investor’s investment criteria, but both the process and level of disclosure at the outset of a listing of a SPAC vary significantly from what you would find in a traditional IPO.
Shareholder lawsuits are quite common in NY and elsewhere. There are a number of plaintiffs firms that are seeking to use some issues faced by certain SPACs as a means to extract settlements from the SPACs. It is difficult to say whether each of the lawsuits has a meritorious claim, but there are certainly critics of SPACs that would agree with the lawsuits that have been filed.
There is a healthy tension in the market between innovation and regulation. Speaking personally, I think that it is sensible for the regulators to examine emerging market trends, including SPACs, and to consider what changes might be necessary.
I would expect that the regulators will take steps to dial down the frenzy in the marketplace surrounding SPACs. The current environment has something of the feel of a bubble and I understand that the regulators globally will be considering whether that is a good thing and trying to take appropriate steps to reduce any issues.
M&A generally has been on an uptick over the last 6-12 months, and I would expect that this will continue. Any changes that seek to limit the use of SPACs will likely have the effect of cooling the market, but I would expect that the market will nonetheless remain robust in the near to medium term.
Speaking generally, providing additional clarity regarding proposed regulations that would affect SPACs and IPOs generally would be useful, as it would give market participants greater certainty.
[1] https://www.investmentweek.co.uk/opinion/4030831/hardly-phase-spacs-stay
[2] https://markets.businessinsider.com/news/stocks/spac-market-q1-statistics-volume-166-billion-growing-adoption-2021-3-1030194528
[3] https://www.whatinvestment.co.uk/what-are-spacs-how-do-they-work-and-should-you-care-2619226/
[4] https://www.whatinvestment.co.uk/what-are-spacs-how-do-they-work-and-should-you-care-2619226/
By now you have likely heard about the latest technology craze: Non-Fungible Tokens (NFTs).
In 2021 alone, we have seen A-list names like Michael Jordan, Mark Cuban and 2 Chainz investing millions in NFT-based start-ups and auctions for NFT-linked assets fetching astounding sums of money, including Jack Dorsey’s first tweet ($2.9 million) and collections of digital artworks by Grimes ($6 million) and “Beeple” ($69 million), just to scratch the surface.[i]
While often linked to digital assets, NFTs (and Smart Contracts) can also be used to sell discrete physical assets like one-of-a-kind sneakers, vinyl records and concert tickets,[ii] and the future could see their use in transactions for major purchases like cars and houses. However, before you or your clients start minting, selling, buying or trading NFTs, you should understand what NFTs and Smart Contracts are, the rights involved in NFT transactions, and some lurking dangers.
What are NFTs? A “token” is a digital asset stored on a secure, but transparent distributed blockchain ledger. Non-fungible means one-of-a-kind—like a record-breaking homerun ball, a bootleg concert recording, or collectables like baseball cards. Thus, an NFT is a digital asset that is linked to a discrete and unique asset. In contrast, a fungible token such as Bitcoin is an asset in itself—its value fluctuates relative to other currencies, but all bitcoins are the same and equal fractioned amounts of bitcoin will have equal value against each other. The process of creating an NFT is called “minting.”
Like Bitcoin, NFTs enjoy the security, transparency and immutability of cryptographic storage, but whereas bitcoins are divisible to 10-8 degree, NFTs are indivisible and can store significant amounts of data, including unique information. This is what makes a particular token “non-fungible,” and it is stored in a “Smart Contract,” computer code that automatically executes upon the occurrence of a set of preconditions.
Combining a Smart Contract with other unique identifying metadata — such as the identity of the owner, and secure file links — along with the security afforded by blockchain, provides practically irrefutable proof of ownership and authenticity to prospective buyers.[iii] Smart Contracts can prevent someone from transferring an NFT or accessing an underlying asset unless all preconditions specified in the contract are satisfied, including potentially paying royalties on the resale of the NFT. While most early NFTs can be resold without restrictions, some NFT marketplaces are encoded to enforce Smart Contracts royalty “clauses” which, upon the resale of an NFT, automatically pay a fee to the minter-seller, usually as a fixed percentage of the resale price.[iv]
In layman’s terms, NFTs and Smart Contracts act simultaneously as a “certificate of authenticity” for the underlying asset and as a valuable representation of ownership of a real asset like a stock.
While NFT auctions have yielded jaw-dropping real dollar figures, what does a buyer really possess? Ultimately, an NFT owner has access to the underlying asset, but they may lack exclusive access to or control of the asset, let alone ownership of the asset or any intellectual property (IP). Indeed, the default rule is that a patentee or copyright owner retains all IP unless it is clear from the language of a signed writing (e.g. the Smart Contract) that ownership of an intellectual property right is being transferred.[v] In most cases, Smart Contracts do not transfer IP rights.
In layman’s terms, NFTs and Smart Contracts act simultaneously as a “certificate of authenticity” for the underlying asset and as a valuable representation of ownership of a real asset like a stock.
An NFT owner may have an implied license in the same way that the purchaser of a useful machine is not infringing a patent by using it as intended or how the purchaser of music is not infringing copyrights by privately singing along with their copy of a record. For example, hundreds of people bought the NFT version of the new Kings of Leon album and received exclusive digital and physical collectibles, but the same music was released via traditional streaming and purchase outlets and the Kings of Leon (or their label) still retain all copyrights. In collectible cases like this, owning an NFT is like owning one of the roughly 10,000 copies of Nolan Ryan’s 1968 Topps rookie card, with the added bonus that your version of the card is authenticated and you are provably the owner. Thus, the value in buying an NFT is often in creating a collectible (non-fungible) version of an otherwise a replicable (fungible) asset.
Despite the security offered by blockchain, this new industry is ripe for fraud and misuse, particularly in attempts to mint and sell NFTs linked to assets not owned by the minter-seller, be it a copyrighted work, trademarked brand or celebrity likeness. In a recent example, an NFT auction for a drawing by Jean-Michel Basquiat that purportedly included “reproduction and IP rights...in perpetuity” was pulled after Basquiat’s estate clarified that it still owned all copyrights in the sketch and that the NFT seller had no rights to give away.[vi]
While there are no laws yet relating to cryptographic assets, legal systems should largely be able to adapt existing laws and principles to blockchain technology as was done for online activities. For starters, most disputes between a buyer and seller of NFTs should be easily resolved either by the Smart Contract or by a judge applying traditional principles of contract law. In Internet-based copyright infringement lawsuits between parties of different nationalities, US courts apply a two-step “conflict of laws” analysis, determining the validity of the IP right under the laws of the nation where the work was created, and determining liability for infringement under the laws of the nation where the tort occurred. Similar rules could apply to this context.
While there are no laws yet relating to cryptographic assets, legal systems should largely be able to adapt existing laws and principles to blockchain technology as was done for online activities.
Another issue is that, since NFTs are, in the end, data stored in cyberspace, there is a risk of non-permanency and losing access to digital assets linked to NFTs. In the meantime, the NFT craze is just beginning and we can either continue to gawk at lofty sales or join the fray.
Shane Wax, Associate
Gottlieb, Rackman & Reisman, PC
Address: 270 Madison Avenue, 8th Floor, New York, New York 10016-0601
Tel: (212) 684-3900
Fax: (212) 684-3999
Email: info@grr.com
Gottlieb, Rackman & Reisman, PC is a New York-based firm that provides legal advice and guidance on all aspects of patent, trademark, copyright, and unfair competition law. It is recognised as a Top Ranked Law Firm for the past two consecutive years, receiving a Martindale-Hubbell AV Preeminent® peer review rating.
Shane Wax’s practice focuses on transactional, enforcement and litigation work related to all areas of intellectual property, including patents, copyrights, trademarks, trade dress and trade secrets. Shane also provides general client counseling related to protection and enforcement of intellectual property rights.
References
[i] See Jon Blistein, RollingStone, Twitter’s Jack Dorsey Sells First Tweet as Non-Fungible Token, Mar. 22, 2021, https://www.rollingstone.com/culture/culture-news/twitter-jack-dorsey-first-tweet-nft-cryptocurrency-1138401/; Gerrit De Vynck and Douglas MacMillan, The Washington Post, He just spent $69 million on a digital piece of art. It’s not his first Beeple, Mar. 18, 2021, available at https://www.washingtonpost.com/technology/2021/03/17/nft-beeple-metakovan-christies/; Danny Nelson, Coindesk, Michael Jordan Joins $305M Investment in Firm Behind NBA Top Shot, Mar. 30, 2021, https://www.coindesk.com/michael-jordan-joins-305m-investment-in-firm-behind-nba-top-shot; Tim Hakki, Decrypt, Mark Cuban Invests in NFT Tracker CryptoSlam, Apr. 17, 2021, https://decrypt.co/66897/mark-cuban-invests-nft-tracker-cryptoslam; Will Gottsegen, Decrypt, Grimes Just Sold Her Crypto Art NFT Collection for $6 Million, Mar. 1, 2021, https://decrypt.co/59827/grimes-nfts-crypto-art.
[ii] See, e.g., Cam Wolf, GQ, What Is an NFT Sneaker, and Why Is It Worth $10,000? Apr. 28, 2021, https://www.gq.com/story/nft-fashion-sneakers; Samantha Hissong, RollingStone, Kings of Leon Will Be the First Band to Release an Album as an NFT, Mar. 3, 2021, https://www.rollingstone.com/pro/news/kings-of-leon-when-you-see-yourself-album-nft-crypto-1135192/; Claire Shaffer, RollingStone, The White Stripes Drop ‘Seven Nation Army’ Remix, NFT Release, Apr. 23, 2021, https://www.rollingstone.com/music/music-news/the-white-stripes-seven-nation-army-remix-nft-1157823/; Jacob Gallagher, Wall St. J., NFTs Are the Biggest Internet Craze. Do They Work for Sneakers?, Mar. 15, 20221, https://www.wsj.com/articles/nfts-and-fashion-collectors-pay-big-money-for-virtual-sneakers-11615829266 (sub req.).
[iii] See Josie Thaddeus-John, N.Y. Times, What Are NFTs, Anyway? One Just Sold for $69 Million., Apr. 13, 2021, https://www.nytimes.com/2021/03/11/arts/design/what-is-an-nft.html; Rakesh Sharma, Investopedia, Non-Fungible Token (NFT) Definition, Mar. 8, 2021, https://www.investopedia.com/non-fungible-tokens-nft-5115211; Jake Frankenfield, Investopedia, Smart Contracts, Mar. 25, 2021, https://www.investopedia.com/terms/s/smart-contracts.asp; Stuart D. Levi and Alex B. Lipon, Harvard Law School Forum on Corporate Governance, An Introduction to Smart Contracts and Their Potential and Inherent Limitations, May 26, 2018), available at https://corpgov.law.harvard.edu/2018/05/26/an-introduction-to-smart-contracts-and-their-potential-and-inherent-limitations/; Melanie Kramer and Daniel Phillips, Decrypt, Non-Fungible Tokens (NFT): Beginner's Guide, Feb. 4, 2021, https://decrypt.co/resources/non-fungible-tokens-nfts-explained-guide-learn-blockchain; Matt Hussey and Daniel Phillips, Decrypt, What Are Smart Contracts and How Do They Work?, Jan. 8, 2011, https://decrypt.co/resources/smart-contracts.
[iv] See James Beck, Consensys, Can NFTs Crack Royalties And Give More Value To Artists?, Mar. 2, 2021, https://consensys.net/blog/blockchain-explained/can-nfts-crack-royalties-and-give-more-value-to-artists/; Zach Burks, James Morgan, Blaine Malone, James Seibel, Ethereum Improvement Proposals, EIP-2981: ERC-721 Royalty Standard, Sept. 15, 2020, https://eips.ethereum.org/EIPS/eip-2981#optional-royalty-payments; Eileen Brown, ZDNet, New platform uses NFTs as a gateway for digital rights management, Mar. 4, 2021, https://www.zdnet.com/article/new-platform-uses-nfts-as-a-gateway-for-digital-rights-management/.
[v] See 35 U.S.C. § 261 (“Applications for patent, patents, or any interest therein, shall be assignable in law by an instrument in writing.”); 17 U.S.C. § 204(a) (“A transfer of copyright ownership . . . is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights”).
[vi] See Anny Shaw, Art Newspaper, Basquiat NFT withdrawn from auction after artist’s estate intervenes, Apr. 28, 2021, https://www.theartnewspaper.com/news/basquiat-nft-withdrawn-from-auction-after-artist-s-estate-intervenes
When you are embroiled in a civil lawsuit to receive compensation for someone’s wrongdoing, there can be a lot of stress on your shoulders. Some of that stress is emotional and physical, but it can also be financial.
Being out of pocket for someone’s poor intentions or negligence can take its toll, and it can even lead to you being in significant financial strife. If you find yourself in this very situation, it might be worth considering a lawsuit loan. Keep reading to find out what this monetary helping hand entails.
Lawsuit loans, also known as pre-settlement lawsuit loans and accident loans, are funds borrowed against an impending lawsuit settlement. A lawsuit funding business or company advances the money so that plaintiffs can pay their bills and stay afloat before they receive compensation.
How much you can borrow depends on what your expected settlement figure is likely to be. Your chosen lawsuit funding company reviews your case to determine the most appropriate figure, then receives their money from your attorney once settlement has been reached.
If you aren’t convinced that a pre-settlement lawsuit loan is in your best interest, we’ve included some of the many possible benefits below.
Even if you don’t have the best credit score, most lawsuit loan providers won’t take this into consideration. In many situations, you don’t even need to verify your income or show proof of the costs you need to cover.
If you are involved in a lawsuit, and it’s costing you money you don’t have before you settle, that’s often reason enough to be eligible for such a loan type.
Insurance companies will sometimes do everything in their power to pay as little as possible. They do this by responding to your demand letter with a lowball settlement offer that sometimes doesn’t even begin to cover the losses you’ve experienced.
As time drags on and your bills pile up, it can be tempting to accept that offer just to see some money in the bank. Lawsuit loans may stop this from happening. You can fight for your right to appropriate damages, rather than settling for less out of desperation.
If you don’t have medical insurance to cover the costs of the care you require, it’s only natural for you to try to put it off. You need quality care to heal and move forward with your life, but an empty bank account means your options are limited.
You may also find yourself in a tricky situation, given that many attorneys recommend healing from your injuries before settling to determine an accurate compensation figure. A pre-settlement lawsuit loan means that you’re able to put your health and well-being first.
While personal loans have their place, they are not suitable for everyone. They can come with expensive repayments, repercussions for non-payment, and high interest rates. Pre-settlement lawsuit loans operate differently.
While you’re waiting to settle your case, you do not have to make any repayments. Instead, the company offering the loan waits until your claim has settled. At that point, they receive money from your attorney, not your bank account.
When a pre-settlement loan company lends you money, they review your case in advance. This gives them an idea of how much your settlement will likely be and the chances of you settling.
There are never any guarantees, no matter how clear-cut your case is. However, if your settlement doesn’t end up being as much as you expected or doesn’t happen at all, your lawsuit loan doesn’t need to be repaid. This can be a weight off your mind if you have just borrowed a significant sum of money to cover your associated costs.
While some loan types may restrict your use of the money to certain expenses, this is not the case with pre-settlement lawsuit loans. If your injury has meant you need to take time off work, you can use the funds for that purpose.
If your car was damaged beyond repair in the accident, there’s no reason why you can’t buy a new vehicle with those funds to get from point A to point B. Whatever you would use your settlement sum for, you can use your loan for.
Pre-settlement funding is something that can help a lot of people trying to navigate the legal system on a shoestring budget. When someone’s poor intentions caused your financial strife, you shouldn’t be put under even more stress than you already are. Such funding may be worth a closer look if you ever find yourself in this situation.
Bournemouth-based, Amigo Loans, has reportedly paid more than £50 million to former customers in the last two years, from individuals who have struggled to repay their loans due to affordability or employment. The average customer claim could be worth thousands, which is made up of the full loan amount, repayments and 8% interest on top.
In an attempt to clear the long list of outstanding claims, Amigo has presented a redressing scheme worth £35 million, to ‘avoid insolvency’ and with plans to recover and continue trading in the future.
However, despite committing to a large sum, some worthy customers may only receive 5% or 10% of their overall claim amount owed - and the FCA is challenging this - especially given that Amigo also plans to offer huge bonuses to shareholders, estimated to be worth around £7 million overall in the near future.
The letter from the FCA to Amigo’s chief executive officers Gary Jennison said: “The FCA remains concerned that redress creditors will have their claims significantly reduced whilst other stakeholders, such as shareholders, are not being asked to contribute their fair share to enable the firm to stay solvent.
Dan Kettle, Director of Pheabs, commented: “Compensation claims are very tricky for lenders, because a number of checks are carried out to determine the customer’s eligibility, but the market also allows customers to reclaim in full if they cannot repay them.”
“This puts lenders in a tricky position over who they lend to and how their business can be sustainable in the future. The upcoming court case for Amigo is very intriguing and should hopefully add more transparency in the industry, otherwise I cannot see how any lenders can survive in the industry in the future.”
Customers have been able to make claims on the basis that they struggled to repay loans due to lack of income, affordability or limited checks on their guarantor. It is free to make a claim directly with the lender by submitting information which can be found on their individual website or via the FCA website. Many people have processed their claims through Claims Management Companies (CMCs) who often charge hefty fees for packaging the claim and sending it to the lender.
The lender should respond to a claim within 6-8 weeks and decide whether to uphold the claim and pay in full, offer a partial reclaim or no claim at all. Some lenders have been quick to offer a settlement at a fraction of the overall value to come to a quick solution. Those pushing for full payment have been able to complain via the Financial Ombudsman Service who can overrule any decision by a lender.
Compensation claims from the FCA have struck UK lenders very hard in recent years, with payday giant Wonga.com refunding over £500 million to former customers and over £100 million in total refunded from The Money Shop and QuickQuid - subsequently putting all three well-known companies into liquidation.
Amigo are looking to avoid a similar fate, with court proceedings taking place later this month.
Facing your mortality is never an easy thing to do. The very thought of not being around for your family when they need you is challenging for even the strongest people. However, if you have assets and wishes for those assets, creating an end-of-life plan is essential.
There is never any guarantee that those closest to you will make sure your preferences and wishes are carried out. There is even a risk that some of your wishes will be contested by your loved ones. However, by doing the following things, you may be able to reduce the risk of that happening.
If you’ve only spoken to a select few family members about what you wish to happen when you pass, it can make it much harder for your wish to be granted. Plans that aren’t set in stone, such as those not put into an end-of-life plan, can simply be viewed as off-the-cuff comments.
If you have firm views about your last wishes, assets, and even body preparation, create a written plan. While your family doesn’t necessarily have to follow that plan, they can at least be aware of your exact wishes and do their best to let them play out.
While you’re planning your last wishes, you might decide to make some potentially controversial decisions into a will. For example, you may choose to donate your car to a charity or give one child more money than the others.
While some family members may view your decisions as unfair, you can insert a no-contest clause to deter anyone from going against your wishes. This clause means that if anyone challenges your will, they don’t receive anything from your estate.
[ymal]
An end-of-life plan can help make sure your family knows where to find your important documents and understand your preferences for your body and assets. However, you can also look at revocable living trusts if you are stressed about the prospect of family contesting your wishes.
A revocable living trust allows you to put all your assets into a trust while you are alive. When you pass, they are given to trust beneficiaries according to your trust’s terms. Since they don’t go through a probate process like wills, they are seldom contested.
Many people keep the details of their will or end of life plan secret until they die. If some of your wishes will surprise some people, there may be a risk of them being contested. To reduce that risk, consider informing your family of your intentions and why you have made the decisions you have while you’re still alive.
For example, if you are leaving one family member significantly more money than another so they can study, explain your reasoning. This way, they will be less likely to question why your assets weren’t divvied out evenly.
Just as there are no guarantees in life, there are also none in death. You may never be able to prevent your family member from contesting your end-of-life wishes. However, there are certainly plenty of ways you can reduce the risk. Have your wishes written out clearly, look at your trust options, and if you think it’s necessary, include a no-contest clause in your will.
We are happy to announce Benedict Frey as one of our ultimate thinkers for the 34th marcus evans IP Law Online Summit 2021, 16 – 17 June.
Ben has spent five years as Global Legal Counsel for Whirlpool in southwest Michigan supporting Transactions, Privacy, and Global Information Systems, and Patents. He has managed global intellectual property for the Refrigeration, Air and Water product categories, including patent portfolio and acquisition, agreements and other transactions, and freedom to operate, enforcement, and litigation. Currently, Ben supports Procurement and Global Information Systems from a legal perspective, counselling on risks and strategies related to data privacy, information security, audit compliance, service, supply, and development agreements, and technology-related M&A.
Previously, Ben led the industry contracting initiative at North-western University in Evanston and spent several years as senior IP litigation associate at Sidley Austin in Chicago.
Ben will be part of our selected group of panellists and discuss about Data Privacy and Intellectual Property Considerations - Organizations have a unique set of data privacy challenges and threats internally and externally to not only cope with but overcome as they move towards greater efficiency. There is a complicated legal framework governing IP rights and assets globally and subsequently IP executives take maximum use of protocols and procedures in order to full comply with all relevant regulations.
For more information about the marcus evans IP Law Online Summit 2021, please contact:
Isidora Avraam at isidoraa@marcusevanscy.com
Website: https://bit.ly/3esTFuE
The 28th Chief Litigation Officer Online Summit happening on 16 - 17 June 2021 is an invitation-only, premium Summit bringing leading Litigation executives and innovative suppliers and solution providers together.
This unparalleled two-day event guarantees service providers an opportunity to interact with senior level litigation executives from leading organizations in America through intimate pre-scheduled one-on-one meetings.
This event creates the primary environment, through which business partnerships are forged and fortified.
This summit is the platform through which leading attorneys gain insightful knowledge into the principal practices in litigation prevention and management. The content of the summit is aligned with key litigation challenges and interests, relevant market developments, and practical and progressive ideas and strategies adopted by successful pioneers. Key topics:
For more information about the marcus evans Chief Litigation Officer Online Summit you can visit https://bit.ly/2S3vpWT or contact directly Isidora Avraam at isidoraa@marcusevanscy.com
Location: London
Salary: £35,752-£42,692
Job type: Permanent
Sector: Employment
Experience: Any or N/A
What’s the role?
Senior Helpdesk Advisor – Member Contact Centre & Helpline
35 hours per week, permanent contract.
As a Senior Helpdesk Advisor within our Member Contact Centre, you'll use your professional attitude, communication skills and customer service experience to deliver an excellent service to Prospect members and potential members. You will be responsible for supporting and advising individuals through our Professional Advice Line and representing their cases with employers for issues such as grievances and disciplinary meetings to ensure successful outcomes.
Your role will be widely varied through providing support and advice on a broad range of complex employment issues and looking at how we can organise and recruit members. You’ll need to have an empathetic and understanding manner and be able to work confidently with our members to ensure Prospect delivers world class customer service.
This is a great opportunity to join Prospect at an exciting time with plenty of room for long term progression and development.
Knowledge, Skills & Experience
Essential Knowledge & Skills
Essential Experience
Employee Benefits include
Prospect is the trade union of choice for over 150,000 professionals, specialists, and managers from across the UK. Our members vary from nuclear physicists and engineers to film directors and cinematographers – with many more in between. For each of these members we provide advice, support, and representation. Join us and you can make a real difference to the lives of working people.
To apply please click here
