Understand Your Rights. Solve Your Legal Problems
“The history of the past is but one long struggle upward to equality.” – Elizabeth Cady Stanton
If any one point in history should leave us ashamed, the Nazi led Holocaust during Second World War is it. The war itself was enough of a stain on our history with an estimated 60 million people dying in one of the world’s deadliest military conflict. World War II left nations torn; patriotism had ruined lives, dictator Adolf Hitler manipulated citizens and caused unforgivable torture to those who didn’t quite cut their audition into being good enough for the ‘master race’.
But the holocaust remains the most barbaric, gruesome and abhorrent element of a brutal conflict.
And for over the past 70 years it seemed that humanity has been striving to learn from a truly despicable act, to guarantee such a travesty should not occur again; from Remembrance Day to documentaries and movies, Holocaust history is mapped all over the school curriculum, to ensure it need not be forgotten and rewritten.
Yet in recent news, Poland earlier this year passed a controversial Bill which outlaws blaming Poland for any crimes committed during the Holocaust. If caught breaking the law and accusing the Polish state and its people of being involved or responsible for Nazi occupation during the war, you could face up to three years in prison, or a fine.
In Polish Parliament Patryk Jaki, a Deputy Justice Minister reportedly commented: “We have to send a clear signal to the world that we won’t allow for Poland to continue being insulted.” So, refrain yourself from saying ‘Polish death camps’, and replaced it with the obviously much more respected and polite version: ‘concentration camps’.
By making it illegal to accuse the Polish nation of complicity in crimes committed by Nazi Germany, some argue, this legislation is trying to amend or rewrite history and with Poland’s Jewish societies stating their communities feel unsafe[i], we ask why this Bill was ever passed.
And even though the ‘battleline between good and evil runs through the heart of every man’, Poland is focusing on the notion that good conquers evil. Many Poles helped the Jews, sheltering them from torture during the war, which in itself is a brave act of kindness[ii]. So when Obama uttered “Polish death camps” back in 2012[iii], altering the perceptions of the country’s stance in the war, a metaphorical dagger pierced through Poland’s heart.
Obama apologised, but the hurt remained.
"When someone says 'Polish death camps,' it is as if there were no Nazis, no German responsibility, as if there was no Hitler," Donald Tusk, Poland’s president at the time, said.
"That is why our Polish sensitivity in these situations is so much more than just simply a feeling of national pride."
But you can’t escape facts. There were 457 camp complexes[iv] and even though these camps were conquered by Nazi Germany, we cannot ignore that some would have helped or ‘handed over’ Jews to their deaths; an estimated 200,000 Jews were killed by Poles, either by handing them over to the Nazis or being extorted for money and murdered for not complying[v]. There were anti-Semitic pogroms[vi] during and after the war, one of which whereby 400 Jews were set on fire in a barn by their not so trusted neighbours.
By imprisoning those that attribute to “the Polish nation or state, publicly and despite facts, responsibility or co-responsibility for Nazi crimes committed by the German Third Reich…”, we are silencing the truth of what happened.
Israel has strongly criticized the law, claiming in inhibits free speech and will be used to repress and shift blame of Poles that had killed Jews in the War. Freedom of speech goes a long way, and muting the mouths of those that speak the honest truth can distort the present and thoroughly amend the future.
We could go back and forth on whether Poles were forced, or if they volunteered, but Jewish people were oppressed, discriminated against and tortured in Poland.
In an era where the alt-right has risen up once more in spite of history and Fake News is considered fact by too many, Holocaust deniers have new platforms to spread mistruths, this Bill seems a dangerous precedent for a country to set. There is a palpable sense of dread, particularly among the Jewish communities, that a blueprint is forming to allow other countries to follow suit in an attempt to exonerate themselves through legislation.
The bill is certainly creating apprehension and fear in Poland’s remaining Jewish population, with many suggesting that it is time to leave a place they call home and that a change in the public perception of the holocaust and potential imprisonment for those who recognise the Polish contribution to it may be forced into exile: A worrying echo of events during the Second World War.
The ‘Holocaust Law’ has caused controversy: Holocaust survivors, governments and international media have voiced concern and castigation The legal system and its Law are here to regulate behaviour which thus has the power to shape politics, economics, history and society around us. Where legislation such as the aforementioned may silence history, what it cannot do, however, is refute it.
Speaking to Aleksandra Kowalik, a Polish lawyer based in the UK, she explains how the law does not express the most mature approach to such a situation: “1st February 2018 remains a milestone in collapsing of Polish honour and painting drew by the previous generation which fought for the free, independent and open- minded country during WWII.
“[The Bill] constituted a great stain of a shame on Polish image due to the Institute of a National Remembrance Act amendment which has been ruled by the government at 2am.”
“Where the intention of penalising war crimes and protecting innocents is a laudable idea, falsification of the history certifies immaturity and a lack of understanding the importance of the past and its’ consequences.”
And at the end of the day, history remains to move us all when we remember it, speak about it and are open to its flaws, in order to prevent such an event occurring again.
As Aleksandra continues: “It must be strongly underlined those facts have taken place and it is a high time for us as a nation to admit history in order we could mentally move forward and create a new quality and open-minded society which will avoid repeating a past.”
And even though the law was approved by the Polish parliament and signed by President Andrzej Duda, the Polish Justice Ministry said it wouldn’t enforce the legislation until it is reviewed by Poland’s Constitutional Court.
Sources:
[i] https://edition.cnn.com/2018/02/20/europe/poland-holocaust-law-jewish-community-intl/index.html
[ii] https://sprawiedliwi.org.pl/en/about-the-righteous/who-are-the-righteous/the-attitudes-of-poles-towards-jews-during-the-holocaust
[iii] https://www.nytimes.com/2012/05/31/world/europe/poland-bristles-as-obama-says-polish-death-camps.html
[iv] https://en.wikipedia.org/wiki/German_camps_in_occupied_Poland_during_World_War_II
[v] https://www.haaretz.com/world-news/MAGAZINE-orgy-of-murder-the-poles-who-hunted-jews-and-turned-them-in-1.5430977
https://www.theguardian.com/world/2018/feb/10/polands-jews-fear-future-under-new-holocaust-law-nazi-atrocities
[vi] https://en.wikipedia.org/wiki/Anti-Jewish_violence_in_Poland,_1944%E2%80%931946
What is the difference between a positive incentive and bribe? Dennis Miralis of Nyman Gibson Miralis Criminal Defence Lawyers tells us.
“New and emerging technologies have been disrupting the way criminal activity is being conducted worldwide which in turn is impacting on developments in the investigation and prosecution of crime and therefore the way in which criminal law is practiced. This is especially so in the area of cybercrime where we see increased threats created by sophisticated malware and other areas of crime where emerging technologies are being used to facilitate traditional crime such as fraud.”
In what ways has technology impacted the criminal law sector, and what further adoptions are expected to develop criminal law proceedings in the next few years?
There is a concern that the ability of law enforcement to properly investigate and prosecute such crimes is frustrated by the anonymity of the new technologies, the international nature of this offending and the limited investigative capabilities of law enforcement agencies to respond. One response being suggested is improving the Mutual Legal Assistance regimes as means of sharing evidence regarding investigations or prosecutions of criminal suspects and strengthening the regulations surrounding the use of these emerging technologies.
The introduction of digital currencies like Bitcoin has also impacted on the criminal law sector. Despite its many benefits, Bitcoin has the potential to be misused for illegitimate purposes. For example, the ease of use and anonymity associated with digital currency platforms has meant that criminals are able to conceal proceeds of crime. Thus, we expect increased regulation of digital currencies under AML/CTF regimes.
How do you determine between a positive incentive and bribe?
The distinction between a positive incentive and a bribe may not always be clear cut. Both provide a benefit that seeks to motivate or encourage another person to do something. Determination of whether a supposed positive incentive is a bribe invariably depends on context. Generally, bribery requires some element of dishonesty and the benefit bestowed needs to have unduly influenced an action or decision. In other words, if a person accepts a gift or reward (monetary or otherwise) which convinces them to act in a deceitful or corrupt manner, then both the bribe giver and receiver are committing an offence. Thus, providing a reasonable level of hospitality to prospective clients in certain business transactions, for example, will unlikely amount to bribery.
However, care should always be exercised in the provision of hospitality or virtuous gifts to public officials. The GSK scandal is one such example where gifts given to public hospital officials for the purpose of persuading them to purchase GSK's medical products in China amounted to bribery. GSK was fined $490 million USD. The case of BHP Billiton also serves as warning for bribery risks.
How common are bribes in a corporate context and what do you think should be done to alleviate bribery risks?
According to Deloitte’s Australia and New Zealand Bribery and Corruption Survey 2015, 35% of organisations have experienced a bribery and corruption incident in the last five years.[1] And whilst only 23% of these organisations were not concerned about risks arising from non-compliance with applicable bribery laws, 77% had never conducted a bribery and corruption assessment.[2] Furthermore, the Charney Research Institute’s 2015 white paper says that 35% of companies in China have admitted to paying bribes or giving gifts to officials in order to conduct business.[3]
These statistics show that businesses are unaware of or do not understand their compliance obligations under applicable anti-bribery regimes. We recommend increasing government initiatives to promote education and awareness in the private sector particularly regarding bribery risks in their domestic and/or international operations. The Australian Attorney General’s implementation of their ‘foreign bribery online learning module’ is a welcomed step in the right direction.
Are there any differences in prosecution for bribery committed internationally? Do you think restrictions could be tighter?
In comparison to domestic bribery, the lack of prosecutions in Australia highlights the technicality and therefore the difficulty in enforcing bribery offences concerning foreign public officials. There is always a concern that if further legal restraints are imposed it could potentially unduly limit the facilitation of legitimate business transactions conducted internationally. Stricter controls could also increase confusion and costs with respect to compliance obligations. Increasing funding for regulators and law enforcement, however, is recommended. Given the difficulty in enforcing bribery offences, providing law enforcement with necessary resources to ultimately detect, investigate and prosecute such crimes is a necessary long-term solution.
Dennis Miralis
Partner
Nyman Gibson Miralis
Criminal Defence Lawyers
Level 9, 299 Elizabeth Street, Sydney NSW 2000
PO BOX 21147, World Square NSW 2002
DX 11543 SYDNEY DOWNTOWN
p +61 2 9264 8884 f 9264 9797 m 0414 933 168
Dennis Miralis is a leading Australian criminal defence lawyer and adviser who specialises in complex white collar crime, including national and international criminal investigations and prosecutions, with a focus on money laundering, tax evasion, bribery, corruption, cybercrime and regulatory offences.
[1] Deloitte, Deloitte Bribery and Corruption Survey 2015 (2015) <http://www2.deloitte.com/au/en/pages/risk/articles/bribery-corruption-2015-survey.html>.
[2] Ibid.
[3] Craig Charney and Shehzad Qazi, Corruption in China: What Companies Need to Know - White Paper No.1 (January 2015) Charney Research Institute <http://www.charneyresearch.com/wp-content/uploads/2015/01/White-Paper-Corruption-in-China-FINAL-v10.pdf>.
An invention is a unique or novel device, method, composition or process which leads to technological progress, and for inventors, it is vital to protect their creation from being copied and misused. And as IP Lawyer Franco Oriti explains: ‘Henry Ford, has condensed this concept in his most famous slogan stating that "there is real innovation only when a technology is accessible to everyone."’. To make it accessible, it is important to hire the right IP attorney to represent you, to ensure everything runs smoothly.
Franco has been involved in the world of IP since 1991 and has vast experience in safeguarding, filing and maintaining Intellectual Property, in a variety of jurisdictions. He speaks with Lawyer Monthly about IP in Switzerland and how the internet is changing his field.
Why is it important to file and protect IP in Switzerland?
Switzerland is a small but one of the richest, most efficient and innovative countries in the world. I would say this is a strong reason to why IP should be also taken into consideration to be filed here, because it is in the middle of the European Union but it is not a part of the European Union Intellectual Property Office (EUIPO), meaning a trademark or design must be filed also here to be valid. Since Switzerland has more than 8 million inhabitants which are possible consumers, it may be a good idea to file a national trademark or industrial design here, in order to cover Europe entirely, especially when considering products may also transit from here.
How has the field of IP changed with the internet changing the scope of development?
Most information is now easily available on the web and this is very useful for transparency, especially in relation to procedures and the costs associated. This does not mean that IP professionals or IP attorneys will see their work decreasing, because I think that companies and inventors are more conscious nowadays to protect their rights through the IP laws and tools. We must always be prepared everyday, in order to highly protect and maintain the applicants’ and inventors’ rights.
What are common obstacles clients face when renewing patents? How would you go about advising on such an issue?
I think that renewals let IP holders become very anxious because of the different and several due dates (legal due date and grace period due date), and for the quantity of cases and money, the IP holders must spend time chasing for the renewal payment receipt that often takes a few months to be obtained.
Franco Oriti
ORITI PATENTS - FRANCO ORITI
Viale Carlo Cattaneo 23
CH - 6900 Lugano
SWITZERLAND
tel. +41 (0)91 921 39 76
Franco Oriti, born in Australia, lived in Sydney and has worked in safeguarding, filing and maintaining Intellectual Property (IP) since 1991. He has a university degree in International Political Science which was obtained at University of Milan.
He is currently working in Lugano (CH) after having done so in Milan at Montedison Group and at Notarbartolo & Gervasi and in Lugano at N&G Patent Services.
Franco has many years' experience throughout the world, in the Renewal of Patents of Invention, Designs, Utility Models, Supplementary Protection of Certificates, Textile Designs, Plant Varieties and Trademarks.
Since 1999, Franco also takes care of filings till the grant and maintenance of IP in Switzerland.
He is registered as a "Trademark Representative" before the Swiss Federal Patent Office and is also a European (n. 4688) and Italian (n. 793M) Trademark and Design Attorney.
He has very good skills for creating "ad hoc" IP Databases for handling due dates and reports, and has an ability to establish plans, for the internal departments of companies and patent firms, to manage costs and reduce expenses for all IP maintenance fees and renewals, worldwide.
Petter Rindforth, Senior Partner of Fenix Legal speaks on protecting your domain names on the internet and the broadcasting copyright treaty draft that the WIPO released earlier last month.
World Intellectual Property Organisation has circulated a new draft text on definitions in the global broadcasting copyright treaty; can you share your thoughts on this?
There is indeed a need to decide on an up-to-date global solution, as basically the rules to protect television broadcasts from piracy have not been updated since the 1961 Rome Treaty. The term of protection has been discussed for some time and is now suggested to be granted “at least” until the end of a period of 50 years computed from the end of the year in which the programme-carrying signal was transmitted. It is of course better than the alternative 20-year term as in the Rome Convention and the WTO’s Agreement on Trade-Related Aspects of Intellectual Property, but the longer period may on the other hand be more difficult to be accepted by the general public / end users. It remains to see how this will work in practice.
What is the best approach to protect domain names and copyright on the internet?
Make sure you register any trademarks or company names as domain names before you file a trademark application or before you publish a press release on your new marks and products. Also, to actively follow discussions and recommendations regarding your trademarks on social networks, is a perfect way to find sources of misuse, get an idea of which legally perfect but competitive trademarked products customers refers to, as well as to find links to and recommendations of pirate copies and other misuse of your trademarks.
Your copyrighted text, pictures, movies, etc can also be continuously searched on the global network. Use a search specialist company to monitor what’s coming up on internet and contact the search engine provider in order to quickly block all fake and infringing sites.
How effective is mediation during disputes involving copyright infringement?
As a mediator, I of course generally support mediation as the initial way to solve a dispute. However, in order to receive a good result, that both parties can accept, you also need to have parties on both sides that are honest and business minded. If the “infringing” party has only made a mistake, or believes that the copyrighted content is free to use for some reasons (such as used only as a reference, or as a satire), then mediation may well solve the problem and even end up in business agreements for the benefit of both parties. However, if the user is just an infringer, with full knowledge of the infringement, mediation will give no result.
As an expert in cyberlaw, how do you see the world of IP changing in the next few years, regarding the development of the internet and technology? Are there any changes you hope WIPO will address?
I hope that all will realise the need to continuously update license agreements, user manuals and other documentation referring to their IP rights, in order to clearly cover new technique and avoid any “grey zones” in relation to others use of their material online.
Another aspect of IP on the Internet is domain name disputes. A working group (WG) within the Internet Corporation for Assigned Names and Numbers (ICANN) is currently making a review of all rights protection mechanisms in all generic top-level domain name systems. At the moment, this WG is dealing with an overview of the Uniform Rapid Suspension System (URS), and the next step will be an overview of the traditional Uniform Domain-Name Dispute-Resolution policy (UDRP). It is important for trademark owners to follow this work and give inputs to the WG on what may be needed to improve these fast and cost effective ways to stop trademark infringement online. One possible change is to introduce a fast track part of the UDRP, to be used on all cases where the domain holder does not respond. Such fast-track is used in a number of similar ccTLD dispute resolution systems with a very good result. It was in fact also suggested by WIPO already at the end of 2009.
Petter Rindforth, LL M
Managing Partner at Fenix Legal KB
Stureplan 4C 4 tr, Stockholm 11435, Sweden
info@fenixlegal.eu / www.fenixlegal.eu
Petter Rindforth, Senior Partner of Fenix Legal, has a Master of law from the University
of Stockholm. He is a Registered European trade mark and design attorney, Registered Legal Practitioner of the European Patent Office, and former president of the Association of Swedish Patent Attorneys. Petter is a trained mediator, an expert in cyberlaw and serves as arbitrator/panellist for WIPO, US-based FORUM, the Swedish IIS, and the Czech Arbitration Court.
Fenix Legal, with its head office in Stockholm, Sweden, is an International Patent and Law firm specialised in intellectual property in Scandinavia, Sweden and Europe. Our consultants are well known and experienced lawyers, European patent, trademark and design attorneys, business consultants, authorized mediators and branding experts. Fenix Legal offers all services in the IP field including trademarks, domain name registration and dispute resolution, copyrights, patents, design, media and competition law, business agreements and business intelligence investigations.
Ajibola Oluyede is the visioner and co-founder of TRLPLAW Solicitors and Arbitrators and was Managing Partner of TRLP Solicitors London until 2006. As current Chair of the Board of Partners of TRLPLAW Worldwide, he is a Chief Market Developer and Commercial Litigator. He speaks on how Nigeria and UK relations are holding up and how Nigeria is adopting cryptocurrencies.
You commonly deal with cross border finance related disputes; how do you see the up rise of cryptocurrencies affecting the transaction / compliance with money laundering process in the future, if it were to spread to cross border transactions?
In Nigeria Banks are prohibited by the Central Bank of Nigeria Circular of 17th January 2017 from dealing in crypto currencies. However this does not affect online transactions that are denominated in cryptocurrencies, such as Bitcoin.
The Nigerian ban unfortunately merely leaves the use of crypto currencies in even cross border transactions involving physical assets based in Nigeria (for example real estate) outside the purview of Nigerian money laundering laws, the reporting and other conditions that enable scrutiny of transactions done with traditional currencies. The issue of compliance with such regulations is therefore still moot in Nigeria as we grapple with an understanding of the blockchain technology that spawned this phenomenon. I think the Central Bank circular was based more on fear of the unknown than an attempt to really understand what the technology means for the burgeoning Nigerian economy. Hopefully the work of the CBN/NDIC committee subsequently set up to study the blockchain technology will result in a different perspective.
How fluid are matters between the UK and Nigeria? From your experience, what could be done that would ensure disputes are resolved with more ease?
Nigeria and the UK are natural trading partners with centuries of trade between them. Both countries have ratified the Bilateral Investment Treaty between them and this protects British investments in Nigeria, as it does Nigerian Investments in Britain. Nigerian has no significant issues with its trade with the UK, which remains one of the top ten Nigerian export destinations.
The proposed Trade and Investments Cooperation Agreement being negotiated between the two nations is expected to grow trade volumes between both countries by over 4.5 billion sterling in 2030. Nigeria’s main export to the UK is crude oil and Britain’s export of goods and services to Nigeria exceeded its imports from Nigeria for the first time in seven years in 2017. That was ascribed to fall in oil prices.
Currently, with the Brexit, it appears that more opportunities for trade and investments are coming up. The British Government through the head of its Department for International Trade (DIT) announced in February 2018 that it was ready to provide UK government guarantees to secure Naira loans by Nigerian banks to Nigerian projects that are importing goods and services (that form not less than 20% of the content of that project) from the UK. The dispute resolution provisions in the Nigeria UK BIT ensure smooth resolution of investment disputes. Most often arbitration clauses in other cross border contracts specify Britain as the venue for arbitration and UK law as the law of the contract. Nigerians do not mind this because as a common law jurisdiction we are familiar with British law.
When representing the Nigerian Creditors in a dispute, you managed to influence the United Kingdom’s Financial Services Authority to withdraw its license; how did you prepare yourself for this?
I represented Nigerian depositors in the London Trust Bank in its CVA, which was prompted by the FSA withdrawal of the banks license. I was already known to most of these depositors and in seeking a lawyer with the grit and knowledge to retrieve their deposits they chose me. When I became aware that the main activity of the bank was trade finance with mainly Nigerian funds we tried to get the FSA to reconsider the withdrawal of the license so that the Bank could continue its lucrative business under a new management. I think we got involved too late in the day. Perhaps if we had been aware of its difficulties with the FSA earlier and made that pitch it would have been acceptable. We discovered that the FSA had actually given the owners an ultimatum to diversify the banks ownership or loose the license. It was their failure to comply that precipitated the FSA’s action.
In the end we tried to continue the trade finance activities of the bank under a new company.
What are three things that are vital to being the best during commercial disputes.
Preparation, preparation, preparation.
What changes are you advocating for, that will enable Nigeria to develop further in 2018?
A proper structuring of the Agricultural economy of the country to open up international markets to Nigerian natural and Organic products. This will involve better regulation, quality control protocols, conformity assessment protocols and certification for goods and services that are required to meet international standards.
We consider our law firm, TRLPLAW, a leading practice in Agricultural law because of our involvement in this advocacy and other very significant transactional work in this area.
We are currently handling, amongst several major assignments in this area, a significant cross border M&A, advising on a major initiative involving joint ventures between Nigerian entities and European entities and statutory framework for operations in an important sector of the agricultural economy which is expected to become a paradigm for the entire Nigerian Agricultural economy. These are bound to boost the Nigerian economy when on stream. I can’t say more than this about these projects at this time.
TRLPLAW INTERNATIONAL COMMERCIAL LAWYERS
LAGOS OFFICE:
D96 LANDBRIDGE AVENUE
VICTORIA ISLAND,
LAGOS,
NIGERIA.
TEL: +234 01 453 3100; +234 1 453 4479
ABUJA OFFICE:
84 KWAME NKRUMAH CRESCENT,
ASOKORO,
ABUJA.
TEL: +234 9 413 1897; +234 9 413 3161
LONDON OFFICE:
3rd Floor
86-90 Paul Street
London
EC2A 4NE
USA OFFICE:
880, WEST FIRST STREET, SUITE 313
LOS ANGELES, CALIFORNIA 90012
TEL: +1 (213) 626-4100; +1 (213) 626 6900
Email: admin@trlplaw.com; info@trlplaw.com
Described by a National Newspaper as the “quintessential Lawyer” Ajibola Oluyede has effectively traversed the entire gamut of legal Practice in Nigeria as a litigator. Admitted to the Nigerian Bar in 1981, he began legal practice and quickly earned a reputation as a tough litigator and commercial lawyer with special interest in cross border financial transactions and compliance with money laundering as well as other regulations. Having been pioneer partner in TRLP Solicitors, a London based commercial law firm established in 2002, he has been consulted and acted in respect of high profile matters in the United Kingdom involving the assets of Nigerian political figures.
TRLPLAW is a union, which consummates the vision by various international law firms based in Africa, Europe and America to forge a multinational law practice of the highest quality, capable of delivering excellent, diverse legal services to businesses and businesspersons globally -particularly within frontier and emerging markets.
Mrs Sally-Ann Dickinson is a Nursing and Rehabilitation Consultant and Case Manager. She works as a singleton expert within her firm and provides reports on personal injury needs and quantum on high value cases and clinical negligence/breach of duty. Having lectured as a Professor in Nursing Law and Ethics to International Standards. Currently, she also works as a Specialist Adviser to the CQC advising on acute clinical matters and community standards of care.
When we last spoke, you explained how nursing standards have not changed in the 20 years you have worked; what changes are you advocating for, which would hopefully see less cases in court?
In my experience of clinical negligence case work I have found over 20 years that the same complaints and breaches of duty occur in all areas whether an acute ward environment, a nursing care home or in the community. These are broadly: lack of or poor communication, below standard pressure area care, below standard proactive falls care, below standard record keeping and below standard basic care provision. I would like to see all trained nurses, whether newly qualified or established, undergo an annual training program on basic nursing care skills and recording skills. This, I consider, would help to address such problems and hopefully lead to less complaints and Court cases in the future. Degree trained nurses do not appear to be exposed to basic nursing care skills to the expected level to enable holistic care to be given for individuals’ needs. With nurses increasingly working in specialised areas also the knowledge of basic nursing and care needs appears to have been forgotten, when concentrating on one subject/technical area, and such training would assist in ensuring all nurses retained these vital skills for the safety and comfort of future patients.
How do you battle through a legal proceeding where your client is now a ‘legal individual’ and not your patient?
I always keep the claimant’s care needs central to the case whether I am instructed by claimant, defendant or jointly. This ensures the correct level of care is seen in a breach of duty case and that the correct provision of care support and equipment is in place for individuals going through personal injury litigation.
How do you overcome challenges you face when regarding difference in opinion with other experts?
Again, keeping the claimant’s care needs central to the proceedings at all times ensures that most difficulties in difference of opinion can be fully discussed and either agreed on, compromised or to keep original recommendations in place. All discussions held are helpful to the claimant in my opinion, as they have two experts looking at their needs, albeit it sometimes from slightly different approaches, but this gives them the opportunity to look at a wider range of recommendations and potential care packages for the long term which can only assist them.
Can you share with Lawyer Monthly, to what fascinates you with the legal industry?
I enjoy working as an expert within the legal environment meeting claimants in different environments and being able to be part of a team in recommending care packages and equipment in personal injury cases, where such provision is likely to be available at the end of the case for a person having experienced trauma in enhancing their independence and longer-term life goals and abilities. Sadly, this is not always the case in a general healthcare environment. With clinical negligence casework I feel I am able to recommend for the future solutions and reasons that situations occurred to help prevent such incidents in the future for others and to help shape future procedures and policies. This aspect of my work is directly linked to my CQC role too.
Mrs Sally-Ann Dickinson RGN
Briar House
5 St Giles Close
Holme
Peterborough
PE7 3QZ
sallyann.dickinson@briarhouse.co.uk
Tel 01487 830014
Sally- Ann Dickinson is an Independent Nursing & Rehabilitation Consultant, specialising in: Orthopaedics, fractures and surgery.
Spine and neck injury and surgery.
Head, brain and spinal cord disease and injury.
Neurological problems.
General surgery.
Accident and trauma surgery.
Nursing management and competence.
Nursing home registration and inspection.
Nursing home standards of care.
Disability rights and discrimination.
Physically disabled people.
Personal injury rehabilitation.
Requirements and costs of care, housing, equipment.
Analysis and quantification of personal care needs.
Medical, nursing care and housekeeping requirements.
Rehabilitation assessment and costing.
Case management (disability).
Intel Corp recently disclosed security flaws in its widely used microprocessors that could allow hackers to steal sensitive information from computers, phones and other devices. Software makers issued patches to protect against vulnerabilities, but Intel is facing a class action lawsuit claiming that the patches would slow computers and essentially force consumers to buy new hardware, and will likely have to compensate large customers for any software or hardware fixes. However, this could be the least of Intel’s worries, according to Joshua M. Robbins, chair of Greenberg Gross LLP’s White Collar Defense and Governmental Investigations Practice Groups.
Although no data breaches have been reported yet, Intel’s shares did drop 3% after confirming the security flaw, and it appears that Intel CEO Brian Krzanich tried to dodge this bullet, having sold off $24 million of his stock options in December before disclosing the flaw. This begs the question, will an SEC – or even DOJ – investigation be launched?
“Intel could face hard questions about whether and why it concealed this flaw for more than six months before disclosing it to the public,” said Robbins. “Shareholders and regulators will be considering whether Intel made misleading statements about their chips within that time frame, and it certainly does bode well for the company that their CEO sold off as much stock as he was legally allowed to, right before the flaw was made public.”
What investigations are Intel liable to face following this incident?
One issue that will be investigated, is whether executives sold shares after learning about the security flaws, which could violate rules prohibiting insiders from trading on material information that is not known to the public.
In particular, Intel CEO Brian Krzanich reportedly sold or exercised 900,000 shares and stock options, earning approximately $24 million. The sale reportedly reduced the number of Intel shares Krzanich owns to the minimum he is required to own under Intel’s corporate rules. The timing of the sale has attracted attention because it occurred after the discovery of the chip vulnerabilities, but before the vulnerabilities were known to the public. While the trades took place as part of a pre-planned sale, that will not necessarily insulate Krzanich if he knew about the security flaw at the time the sale was arranged. Given the timing and magnitude of the sale, and the attention it has received in the media, the SEC is likely to conduct at least an initial investigation. An investigation by the Department of Justice is also possible.
The security flaws have also attracted the attention of private litigants. Intel, and other affected chipmakers, have already been hit with multiple lawsuits. Some of these suits are derivative actions alleging insider trading. Others are putative class actions that allege that consumers were injured by the defective chips and that the chips cannot be patched without degrading the chips’ performance.
What would you have said to be the ideal way to deal with a cybersecurity issue such as this one?
Every situation is unique, of course, but many companies should plan in advance for a data breach or other information security issue. In recent guidance, the SEC emphasized the need for comprehensive policies and procedures related to cybersecurity risks and incidents. For public companies, policies and procedures should guard against insider trading and ensure timely disclosure of non-public information regarding the cybersecurity issue. This is also a good time to review insurance policies and ensure that there is adequate coverage for data security events. After a cybersecurity event, call counsel. Among other things, outside counsel can retain experts and shield portions of the investigation from discovery in litigation because of the attorney-client privilege or the work-product doctrine.
When are companies at risk to prosecution; what constitutes as a misleading disclosure?
Securities law does not create a general duty to disclose. Nonetheless, a company may need to disclose information about a cybersecurity incident if necessary to prevent a statement from being misleading. For example, a company may need to disclose potential costs related to a cybersecurity incident to ensure that forward-looking statements about financial performance are not misleading.
In general, statements are only actionable if they are material. In the context of securities law, information is material when the reasonable investor would view the information as significantly altering the “total mix” of the information available. The evolving legal landscape and the complex factual and technological situations that often surround cybersecurity incidents means that materiality can be difficult to assess. In addition, the law on materiality in the context of cybersecurity cases will likely continue to evolve with the changing technological, regulatory, and litigation landscape.
With cybersecurity becoming a growing issue, how do you think courts will change their viewpoint of security in 2018, including changes to keep towards maintaining an orderly market?
One issue that has generated attention is what consumers must show to have standing to bring a lawsuit in federal court. If the only harm suffered is the theft of the data, is that enough? Courts have arrived at different conclusions, although there is debate about whether there is a true circuit split or whether the decisions turned on the facts before the respective courts. The US Supreme Court recently denied a cert petition on this issue in CareFirst v. Attias. This question can arise in cybersecurity contexts other than data breaches. For example, unlike high-profile data breaches, the Intel security issue involves vulnerabilities in Intel’s physical product itself – its chips – that could be exploited by hackers. It is unclear, however, whether hackers have already exploited this vulnerability. It remains to be seen whether standing will be raised as a defense in any of the cases filed against Intel.
Josh Robbins, the chair of the firm’s White Collar Defense and Government Investigations Department, has represented the governments of the United States and other sovereign nations, Global 500 and Fortune 500 corporations, and individuals in jury trials, appeals before federal circuit courts and the United States Supreme Court, international arbitrations, and complex government investigations. He has been lead trial counsel in numerous high-profile cases involving hundreds of millions of dollars at issue and significant national and international public attention, including matters reported in the Wall Street Journal, the Los Angeles Times, CNBC, the Investigation Discovery channel, and Forbes.com.
Separation is never easy, and it is harder when there are children involved, regardless if you were bound by marriage to your child’s mother or father. Remo Gilomen is an attorney from Switzerland, who speaks on changes he would like to see regarding alimony, and considerations to make before you take your vows.
What do you think are important measures to consider prior to marriage, to ensure if a divorce was to happen, that you are best prepared?
Well, there are things that you can’t control (custody, alimony) and then there is stuff you can control. In case there are a lot of assets and fortunes involved, I would advise you to establish your marriage with a marriage contract. In this contract, you can define what belongs to you and what belongs to your partner and maybe that this is going to be like that for the future. You cannot fix years before where your kids should be living and how much you would be paying if you’re undergoing divorce. You can’t arrange your retirement provisions if you don’t do that on an optional basis. This is mostly given by the law; so being prepared for the things you can plan, is vital.
How have laws regarding alimony changed over the years in Switzerland?
Since January 2017, kids from married parents are equal to kids from unmarried parents. Previously, children that were from an unmarried couple often had some big disadvantages to get on with; for example, a smaller amount of alimony which did not include the custody time of the parent in charge. This had a big impact on the main responsible parent for support. They not only had to financially support the child, but they also had to pay the other parent’s custody time for the next 5-10 years, or longer. It wouldn’t matter if the child was the outcome of a one-night stand or from long-term partnership of 10 years or more.
Given the law cases you see regarding families with international background, what factors should be considered when living in Switzerland?
You should be aware that if you have kids here, in case you separate or divorced, you can’t just go back to your country with your kids without the permission of the other parent or the decision of the guardianship authorities of your community. They must ensure it is in the best interest of your child to move to your country without having the father/mother having around regularly. Couples with foreign law issues should consider consequences regarding permission of residence before undergoing separation/divorce procedures.
Are there any legislative changes you would like to see regarding alimony?
I think Switzerland ought to open up our rules slightly. Even though some legislations have good intentions in mind, I think some are outdated. For example, I think that every woman should work at least part time after a few years of being a housewife. If everything goes well, then the option is there for women to have that choice; at the moment, the primary caregiver who has stopped working to look after their child, is paid maintenance until their child is 10. In my opinion, the law should be more open to allowing the primary caregiver to return to work to lessen financial pressure. But there is also the need that society enables people to work on a basis from 20-60%, which is not the case in every branch.
Remo Gilomen
Rechtsanwalt
Thunstrasse 20
Postfach 206
3000 Bern 6
Tel 031 381 25 71
Fax 031 381 25 21
My name is Remo Gilomen, I am an attorney at law practicing primarily family law in Berne, Switzerland. I am the partner of small law firm in the city of Switzerland’s capital, helping people to undergo family law procedures in any kind.
Your law office in Kirchenfeld near Bern offers the best quality for the services provided very much in the spirit of “great things come in small packages.” We distinguish ourselves through individual counsel and efficient execution on the best possible terms. Our aim is to create a friendly and discriminating ambience in our discussions and to safeguard your interests externally with great determination. Trust, respect and loyalty between you and your legal representative are the foundation for this.
Nils Schmid is an expert in IP law; he discusses how digitalisation is affecting IP law and the difficulties it poses on inventions.
From your point of view, how does digitalisation affect the protection of intellectual property, particularly technical inventions?
“Protection” for technical inventions can in general be achieved by two different actual mutually exclusive strategies. The first strategy focuses on filing a patent application in order to obtain a legal monopoly to interdict the use of the patented inventions by third parties. The peculiarity of the second strategical path is to keep this essential information of the invention secret, that are required for putting the invention into practice. The latter has become more difficult particularly due to digitalisation. In the field of mechanical engineering, the essential information of an invention is often easily identifiable in 3D models, construction drawings and the like. Due to digitalisation, such information can easily, and without any major effort, be generated from physical products. Modern manufacturing methods create opportunities for the duplication of products, even though the original manufacturer tries to keep essential manufacturing information in-house. At least in the field of mechanical engineering, the traditional strategy of protecting technical know-how via intellectual property, particularly by filing patent and/or design applications seems to have become more relevant as a result of digitalisation.
Does digitalisation also affect the protection scope achieved by patenting an invention?
The main legal purpose of patents in Germany in general is to prohibit reproduction of the patented know-how for commercial purposes. Accordingly, duplicating patented products for private (noncommercial) purposes does per se not necessarily lead to an infringement of the respective patent. Digitalisation in combination with modern manufacturing methods, such as the so called 3D printing, bears the potential to partly shift manufacturing from companies to consumers and thereby potentially to noncommercial purposes. Depending on the material to be printed, 3D printers are nowadays available for less than €1,000 and can print products based on 3D models. Due to digitalisation these 3D models can be made accessible to consumers in a fast and cheap way. It appears to be quite unrealistic that 3D printing technology enables the production of complex technical products, such as cars or computers, under noncommercial circumstances. However, with respect to less complex products, such as tokens for board games, spare parts for technical devices and simple constructions of multiple parts, the 3D printing technology could lead to a self-supply generated by consumers. Such a development could make it more difficult for patent proprietors to protect their inventions from being duplicated.
Are there any legal restrictions for the noncommercial duplication of protected products?
The question, whether a duplication produced for noncommercial purposes represents a patent infringement, is particularly related to the circumstances under which the private individual received access to the template (i.e. the 3D model) used for the duplication. Indirect infringement for example, which is known in most patent laws, could form the grounds on which to sue at least publishers of 3D models being capable of duplicating products with 3D printers. In addition, the German Copyright Act states that a duplication of protected work produced for private use is only allowed, if the template used for the duplication was not evidently illegally produced or made available to the public. Thus, there is a legal basis to avoid misuse of the exclusion for products being duplicated in noncommercial circumstances.
Overall, that sounds like digitalisation will make it more difficult to protect intellectual property. Do you see positive aspects of digitalisation in terms of the protection of intellectual property?
As part of digitalisation, information about commercial actions of companies become available to a broader extent and are easier accessible. This lowers costs and raises the chances of right holders to identify violations of their rights. Further, the rising amount of digitally available information in combination with modern analysis tools enables faster and more reliable estimations as to the validity of a patent. Consequently, both right holders and potential infringers can obtain more reliable information with respect to the legal situation. From a company’s point of view, which desires to enter a market, the digital accessibility of IP rights enables cheaper and more reliable information regarding the intellectual property situation on a specific market. Last but not least, digitalisation, in particular in combination with modern analysis tools, liberates professionals from repetitive time-consuming activities, thereby enabling them to deal with challenges arising from digitalisation. Overall, as long as right holders of intellectual property are aware of the challenges arising with digitalisation, the chances of the same seem to outweigh.
Nils T. F. Schmid
European Patent and Trade Mark Attorney
Patentanwalt
Partner of
BOEHMERT & BOEHMERT
Pettenkoferstraße 22
80336 Munich
Germany
T +49 (89) 55 96 80
Nils T.F. Schmid specializes in traditional mechanical engineering. For his clients, especially medium-sized companies in Germany/Europe and Asian and American big corporations, he develops both German and global patent strategies and sees to their implementation with regard to the building up and management of patent and design patent portfolios.
For the past 40 years, Ralph Pelaia has been working in the legal profession securing verdicts and settlements for personal injury victims and the surviving family members who have lost love ones in car, truck and motorcycle accidents throughout Texas. Since 1987, upon relocating from South Florida, Pelaia has maintained an office in Gilmer and Longview, Texas.
Since the early ‘70s and ‘80s, Ralph has tried and resolved many multi-million-dollar wreck cases, from wrongful death to catastrophic injuries in both Florida and Texas. In 1978, in Broward County, Florida, Ralph handled a record setting case (for that time) involving an 18- year-old girl whose injury in a wreck left her in a comatose state. In 1989, he obtained a more than $10 million record verdict in Dallas, Texas on behalf of a minor child.
“Financial compensation through the civil court process is the only retribution for personal injury victims”, speaks Ralph.
He continues by saying, “You know, I learned early not to be another lawyer in a ‘blue suit’ and to be the ‘voice of people’ both before with the liability claims adjuster, and after instituting a lawsuit with opposing council.”
He speaks with Lawyer Monthly about his expertise and how over the past 40 years, personal injury has changed.
You have worked in personal injury over the past 40 years; how has the sector changed? Do you think we are now of a more cautious and litigious generation?
I would say so, yes. Jurors in East Texas have become increasingly more conservative over the last several decades and the laws concerning insurance companies are more favourable towards them. Insurance companies want to litigate more frequently and making settlements without litigation is a rare thing.
Wrongful death cases can be challenging; how do you channel the emotion to obtain the best results for your clients?
To be prayerful and appreciative that we have a society that makes justice available for all.
From this, can you share your most challenging case yet?
I think it would have to be a case I dealt with in 1989. It was a medical malpractice case involving pediatric and surgeon in Dallas. It involved a three year old child who fractured his distal humorous in a fall, and was taken to the hospital and every one of the nurses and doctors were aware of "compartment syndrome" developing in the child and it causing harm, yet they failed to act thereby a condition known as "Volkmann's ischemic contracture". The surgeon had changed the records, so it would show the condition developed when he was released and their pediatrician, while involving himself early on, acted like he did not know the increasing danger of what would have eventually happened to this child. The Hospital decided to settle and the surgeon also settled, so the remaining case went to trial in Dallas against the pediatrician. We had attempted to resolve with the pediatrician, but they made a $2,500,000 offer which was rejected. The jury, in the end, gave us A $10,900,000 verdict.
With motor vehicles becoming ‘smarter’, and with ‘driverless cars’ eager to get on the road, how do you see these developments transforming the personal injury sector?
I think attorneys will have to adapt themselves in the world of software and computers. However, I think this new invention is still years away from changing anything in the time being.
What different aspects must you touch on when obtaining a settlement focusing on mental anguish, opposed to physical detriment?
One must emphasize and realise how the mind often is more affected than the body.
Is there anything else you would like to add?
We must always be mindful of our unique history and call upon ourselves to be well invested in history.
Ralph Pelaia Jr., attended University of Notre Dame, graduated in 1973 honors, clerked for United States District Judge Peter T Fay Southern District of Florida in 1973-1975 and was an Insurance Defence Lawyer until 1978. He now has a private practice: Ralph Pelaia Jr. and Associates.
After moving to East Texas in 1986, he is now practicing in Longview Texas and Dallas.
He has been voted: "Best Lawyer of East Texas", awarded by citizens of Gregg County, Texas, 2009-13; "Best of East Texas", Readers’ Choice Award, Longview News-Journal, 2010-11, 2011-12, 2012-13 and 2013-14; "Best Law Firm in East Texas", Longview News-Journal, 2015-16. He has been selected as: Rue Ratings' Best Attorneys of America, 2014; Litigator Awards™, Trial Lawyer Board of Regents™, 2014; "Top 100 Trial Lawyers", The National Trial Lawyers.
He is a Member of the following: Upshur County Bar Association; Gregg County Bar Association; Broward County Bar Association; Dade County Bar Association; Northeast Texas Bar Association; The Florida Bar; State Bar of Texas; Federal Bar Association; American Bar Association; Broward County Trial Lawyers Association; Florida Academy of Trial Lawyers; Texas Trial Lawyers Association; American Association for Justice; Texas Municipal Courts Association (Judicial Division). He is also a life member of: Million Dollar Advocates Forum and, the Multi-Million Dollar Advocates Forum.
At the Pelaia Law Center, we believe in qualified and affordable legal representation and we work closely with our clients to secure the best legal outcome in each case. If you were hurt in a car wreck, motorcycle accident, or eighteen wheeler truck accident in Texas, you will need experienced legal representation to secure the maximum compensation for your injuries.
In summary, these are the items of damages that Ralph Pelaia will obtain for you either by settlement prior to litigation or jury verdict in the State of Texas:
In a case involving the death of a loved one, Texas law also allows certain family members to file a claim for wrongful death. Damages awarded in a wrongful death claim may include:
