Understand Your Rights. Solve Your Legal Problems
The state of Baden-Württemberg in southern Germany is known for its inspired technical innovators, including – to name but a few – inventors of world renown such as internal combustion engine pioneer Gottlieb Daimler (Daimler, Mercedes), ‘father of the chainsaw’ Andreas Stihl and automotive supplier Robert Bosch. But that’s not all – it has been, and remains, the land of small and medium-sized enterprises. Of almost 500,000 businesses there, 99% are SMEs under the European Union’s definition.
The services of Stuttgart-based tax consultancy RTS are tailored to this target group. RTS provides guidance to SMEs on all taxation matters, as well as in other areas including management consultancy, succession planning and various structural aspects. The firm has more than 50 branches and over 1,000 staff. For its clients, strong trust relationships with their tax consultants – built over many years – are the norm; they see their advisers as valuable sparring partners. RTS offers ‘one-stop shop’ consultancy solutions, with the group encompassing M&A experts, lawyers, headhunters and a family office.
Below, Anne-Marie Nicolas and Noémi Gémesi at Loyens & Loeff offer their unique insights.
The Luxembourg Stock Exchange is the world’s leading exchange for the listing of international debt securities and green bonds. Luxembourg holding and finance companies are also incredibly popular with international conglomerates or in LBOs for tax and/or single point of enforcement purposes, including in bond deals. Therefore, bond restructuring processes often involve Luxembourg law aspects.
In that context, Loyens & Loeff Luxembourg regularly advises clients on both the issuer and the creditor/investor side on the restructuring of bonds, including, for instance, in the following landmark bond restructuring deals:
Our advice generally includes structuring, insolvency, finance and strategic legal advice as to how to handle the bondholders or the Luxembourg issuer company in light of possible restructuring options and security enforcement options, but also the Luxembourg board’s liability concerns and duties. We are also often involved in the tax structuring of the warehousing structure and in considering the structuring of exit options.
Consequently, our combined expertise in terms of bond restructurings encompasses legal advice with respect to Luxembourg capital markets, debt restructuring, corporate, finance and tax matters to help our clients navigate the negotiations with the stakeholders, the relevant board members and/or the litigation risk. New money funding options are varied and range from debt-to-equity swaps, extension of maturity, warrants or hybrid or preferred equity instruments issues, collateralisation of existing notes and/or new loan facilities.
Loyens & Loeff Luxembourg regularly advises clients on both the issuer and the creditor/investor side on the restructuring of bonds.
Typical key Luxembourg legal points that are often encountered in bond restructurings include the following:
One key skill is the ability to navigate complex restructuring and insolvency scenarios while remaining agile and able to adapt the legal advice to quickly changing and sometimes tense situations while keeping in mind that the goal is (normally) to get to a deal. When acting for the issuer or its board, we also must take the board’s potential liability into account. We bring considerable creative expertise in the field of bond restructurings and recognise the specifics of listed bonds and the mindset of bondholders and boards, depending on their corporate culture.
The other key skillset we use is our knowledge of certain foreign markets. Based on precedent experience, we have the ability to compare and clarify the differences in markets, liability standards and corporate governance aspects in both foreign markets (such as the US, the UK, Germany and Brazil for instance) and the Luxembourg legal frameworks as well as the practices of the respective courts in these jurisdictions. This also helps in our advising on (litigation) risk assessments in the context of the negotiation with the bondholders.
Anne-Marie Nicolas, Partner
Noémi Gémesi, Counsel
18-20, rue Edward Steichen, L-2540 Luxembourg
Tel: +352 466 230 314 | +352 466 230 291
E: anne-marie.nicolas@loyensloeff.com | noemi.gemesi@loyensloeff.com
Anne-Marie Nicolas is a partner at Loyens and Loeff, as well as the head of its Luxembourg Banking & Finance practice and co-head of its Luxembourg Restructuring practice. Her practice focuses on secured lending, including acquisition finance, and real estate. She also handles distressed financings, security enforcements and debt restructurings.
Noémi Gémesi is a counsel at Loyens and Loeff and a member of its Banking and Finance practice group. Her focus is on capital markets regulation and securities laws.
Loyens Loeff is a leading legal and tax advisory firm headquartered in Rotterdam. With over 1,000 advisors across its Netherlands, Belgium, Luxembourg and Switzerland offices, the firm offers full-service legal advice and specialist support for businesses internationally.
Jorge Isaac González Carvajal, an independent arbitrator in Venezuela, shares the insights he has gained over a lengthy career in ADR and offers his predictions for how the sector will continue to grow.
The dispute resolution system underwent a radical positive change in the 1999 Venezuelan Constitution. First, rights and guarantees of access to justice, due process and the right to defence are recognised under the traditional organisation and structuring of a professional, independent, and impartial Judiciary. But what is interesting is that the idea and concept of the ‘justice system’ are created by the Constitution as a set of actors and mechanisms that interact in and for the resolution of controversies. Parts of that system are the ADRs.
Obviously, the idea of the justice system is to think of the coordinated operation of a series of pieces that mesh to provide people with adequate mechanisms to resolve their disputes. So, for the justice system to work, it is necessary for the ADR sub-system – one of its cogs – to work.
Since the 1999 Constitution came into force, there has been support and promotion of ADR from the express provision of the Constitution. Thus, article 258 CRBV establishes: “The law will organise justice of the peace in the communities. Judges or justices of the peace will be elected by universal, direct, and secret ballot, under the law. The law will promote arbitration, conciliation, mediation, and any other alternative means for conflict resolution”.
This rule has been recognised as the constitutional foundation of ADRs, addressed to public powers (including courts) and of course to private parties. This places Venezuela in a pro-ADR position in tune with the global evolution of dispute resolution mechanisms.
There are currently laws that govern private arbitration (Commercial Arbitration Act of 1998) and justice of peace (Organic Law of the Special Jurisdiction of Communal Justice of Peace of 2012) and a flourishing jurisprudential doctrine in favour of alternative dispute resolution mechanisms (see judgments SC/TSJ No. 1541/08 published in Official Gazette No. 39,055 of 10 November 2008 [today leading case in arbitration], SC/TSJ No. 1067/2010, published in Official Gazette No. 39,561 of 26 November 2010, and SC/TSJ No. 1784/11 dated 30 November 2011).
The dispute resolution system underwent a radical positive change in the 1999 Venezuelan Constitution.
The Venezuelan Commercial Arbitration Act of 1998 is inspired by the 1985 UNCITRAL Model Law of International Commercial Arbitration, although with some peculiarities of the national idiosyncrasy. This law is adapted to the attempt and global desire to harmonise (and in some cases standardise) the arbitration practice.
Additionally, Venezuela is part of the 172 countries that have signed the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), which has been in force since 1995. Likewise, it is part of the Inter-American Convention on International Arbitration (Panama Convention of 1975), in force since 1985.
Unfortunately, Venezuela has not developed a law that governs mediation and conciliation, but there are regulations inside some legislation. Those are the Civil Procedure Code and the Labour Procedure Law. This last instrument establishes a mandatory mediation phase before the trial, which in practice has given very good results.
Venezuela is also a signatory party to the United Nations Convention on International Settlement Agreements Resulting from Mediation of 2019 (Singapore Convention on Mediation). Although it has not entered into force in the country, it shows the vocation and commitment for ADR promotion.
The ADR landscape has been undergoing important development for more than 20 years. For example, in arbitration, since the adoption of the 1998 Law, the paradigm of understanding commercial arbitration has changed, giving way to a pro-arbitration regulatory framework. To this is added the 1999 constitutional normative provisions that, together with an early jurisprudence of the Supreme Court, have served as the basis for progressive and consolidated development of arbitration (and other ADRs mechanisms) in Venezuela.
This was evidenced in the increase in the number of arbitrations administered since 2000 by arbitral institutions in Venezuela which were slowed down by the severe crisis between 2014 and 2019, and with the arrival of the COVID era and with a gradual increase in recent years in arbitration cases administered by Venezuelan institutions.
Since the adoption of the 1998 Law, the paradigm of understanding commercial arbitration has changed, giving way to a pro-arbitration regulatory framework.
Some institutions oversee managing mediation and conciliation processes, independently or as an integral phase of arbitration proceedings, with satisfactory results. Subjects such as ADR, arbitration, or mediation have been incorporated into university curricula, both in undergraduate and postgraduate courses and important postgraduate educational programs in arbitration and mediation have been developed.
Interest in ADRs has increased in the legal community. I would say that the main reason is circumstances that affect the proper functioning of the judiciary, but not only this. Progress has been made gradually towards a general level of awareness of the advantages (and disadvantages) of ADR. In other words, the legal community has enough professional maturity to identify when to choose one way or another.
In general terms, I would not say that there are legislative obstacles against ADRs. On the contrary, both the Constitution and the laws and jurisprudence have been in favor of ADRs. And this is not new, since Venezuela has an almost bicentennial tradition, uninterrupted since its independence as a sovereign country, in favouring non-judicial dispute resolution mechanisms (e.g. arbitration).
I also don't think there is a cultural obstacle. ADR, like any area of law, requires awareness of its existence, and of course, there is a particular ADR vision, which is often not in tune with the traditional culture of litigating in court. But as I have mentioned, more and more lawyers and individuals are incorporating ADRs as operating tools for their businesses.
Furthermore, for some time there has been a permanent academic and professional movement in the promotion and study of ADR, through workshops, congresses, courses, publications, or the creation of initiatives from which ADR is permanently promoted – for example, the creation and operation of the Venezuelan Association of Arbitration (AVA) or the Venezuelan Association of Mediation (AVEME).
My advice to less experienced legal practitioners in Venezuela would be to try to understand the general dispute resolution framework and how it works. From there, having a clear picture, get involved and specialise if that is your intention. This allows having a sufficiently general and useful vision to identify which problems can be submitted to one ADR mechanism or another. Everything must go hand in hand with a constant review of what is happening in the world, which is not difficult today since ADRs tend to be more global and uniform every day.
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I think it would be interesting to further develop the interaction between the bodies of the Public Power, the ADR community and ADR institutions (academic and professional). These bodies should focus on ADR’s promotion and seek to maximise its practical utility and promote the incorporation and recognition of new ADRs and the promotion and consolidation of traditional ADR methods, turning Venezuela into a pro-ADR international hub.
Jorge Isaac González Carvajal, Independent Arbitrator
González Carvajal Abogados
Tel : +58 414-100-5498
Jorge Isaac González Carvajal is an independent arbitrator with more than 18 years of experience in litigation and dispute resolution. As founder of González Carvajal Abogados, he primarily advises on avoidance and resolution of conflicts in legal, tort and contractual matters, as well as arbitration and litigation. He brings a wealth of experience in national and transnational litigation, oil and gas, commercial, maritime, agriculture and consumer law matters.
Experienced DPO Lukas Lezzi examines Swiss DPOs’ many obligations and the possibility of mitigating them in the feature below.
The Swiss Federal Act on Data Protection (FADP) in its current version gives the controller the possibility to appoint a DPO voluntarily. This appointment grants the controller an exemption from the obligation to report data processing activities of sensitive data to the Federal Data Protection and Information Commissioner (FDPIC).
However, since this law is only going to be in force until 23 August 2023, we will instead focus on the new revised FADP, which will enter into force on 1 September 2023 without any grace period. Article 10 of the revised FADP determines the role of the DPO (in Switzerland called the Data Protection Advisor) in greater detail.
The appointment of a DPO is voluntary for private controllers in Switzerland. However, the appointment enables the controller to invoke an exception from the consultation obligation of the FDPIC in the course of a Data Protection Impact Assessment.
According to the FADP, the DPO acts as the contact point for the data subjects and for the competent data protection authorities responsible for data protection matters in Switzerland, namely the FDPIC. In particular, he or she has the following duties:
If a DPO is appointed and the controller wants to benefit from the above-mentioned exemption to the consultation obligation, the following requirements must be met:
Furthermore, the controller ensures that the DPO:
Generally speaking, the role of DPO in Switzerland under the new FADP will be very similar to the GDPR, but will remain voluntary for the controller. However, many companies in Switzerland have opted to create such a role, if they did not already have one (due to being subject to the GDPR).
For many actors in the Swiss financial market, there is a professional secrecy obligation to be considered. These secrecy obligations for client data are relevant for banks, securities firms, asset managers, trustees, mangers of collective assets, fund management companies and financial market infrastructures (e.g. trading venues, payment systems or central security depositories).
For these regulated entities, the Swiss Financial Market Supervisory Authority (FINMA) lays down rules for handling critical data, a term which entails personal data. Thus, a DPO of a regulated entity in the financial market needs to consider not only the FADP, but also the respective regulatory framework, when advising their business.
Generally speaking, the role of DPO in Switzerland under the new FADP will be very similar to the GDPR, but will remain voluntary for the controller.
FINMA will also regularly audit regulated entities regarding their data protection and general information management framework. Consequently, it can be very challenging for a DPO to consider not only the relevant data protection laws, but also any regulation concerning the handling of data.
Finally, as in many industries, outsourcing is very important topic for any DPO in the financial market. However, due the various regulations, outsourcing can be a bothersome and complex process, particularly if FINMA has to be involved.
The EU commission has decided that Switzerland has an adequate level of data protection regarding the GDPR and vice versa. Thus, data transfer between the EU/EEA and Switzerland is usually uncomplicated. However, when transferring personal in countries without an adequate level of data protection, it can be difficult for the DPO to advise on any necessary additional technical or organizational measures that will need to be taken.
Furthermore, the professional secrecy obligation can complicate such international data transfers even more. Conservative Swiss scholars seem to be still of the opinion that personal data covered by the professional secrecy obligation may not be transferred outside Switzerland without the consent of the clients. However, lately, an argument has emerged that such data may be transferred outside of Switzerland without the explicit consent of the client, provided that the security of the data is ensured.
Given that a DPO is involved in various internal operational processes within a company, such as data subject requests or privacy impact assessments, and usually lacks the time and resources for in-depth legal research, an external counsel can support a DPO with the latest know-how. The highly regulated financial market, the regulation and practice of the supervisory authority tend to change particularly quickly.
Usually, external legal support is advisable for reviewing privacy policies, for international data transfer or for designing internal processes (e.g. access requests, data breach notification, privacy impact assessments, etc.). Particularly important is external advice when conducting substantial internal project, such a migration to a new cloud (particularly if this cloud is hosted outside Switzerland). Generally, an external counsel can offer a DPO insight on how other, similar companies resolve similar issues regarding data protection, which can be very beneficial for the DPO.
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Given that the revised FADP brings many new requirements and new processes, it is advisable that a DPO tasked with designing a data protection framework engage an external counsel in order to get the necessary know-how.
New technologies such as ‘distributed ledgers’, the ‘internet of things’ and artificial intelligence can of course have an impact on data protection provided personal data is processed. It can be very challenging and time-consuming to design such products and services compliantly. This is where an external counsel can provide valuable support providing their know-how to the DPO.
Lukas Lezzi, Founder
Etzelstrasse 3, Postfach, 8038 Zürich, Switzerland
Tel: +41 79 315 10 10
Dr Lukas Lezzi is a qualified lawyer in Switzerland and holder of the IAPP certifications CIPP/E and CIPM. He studied law in Zurich and received his doctorate in financial market law, and has worked as the data protection officer for a major Swiss financial infrastructure provider and a major Swiss law firm before founding his own boutique firm. He advises national and international client in data protection and Swiss regulatory matters. Currently, he and his team are advising several companies in the implementation of the new FADP.
We hear this month from highly experienced IP litigator Julie Katz on the COVID-19 pandemic, changing attitudes towards civility in IP law and other developments shaping the profession in 2023.
The seemingly increasing levels of incivility in the profession usually impacts legal advocacy in a negative manner. What typically happens is that conflict between companies becomes conflict between the advocates. Instead of focusing on the strengths and weaknesses of the case, attorneys focus on bullying or intimidation litigation tactics.
This behaviour typically occurs during the discovery phase of a case, leading to more motion practice about issues not germane to the merits of the case. Clients end up paying higher attorney fees for having to fight about discovery matters that are, often, otherwise unnecessary. Settlement discussions became more challenging in which to engage.
In trademark cases, creativity in resolving conflict for consumers’ benefits is a key component to settlement. However, when the case goes from the likelihood of confusion issues to a series of senseless motions, a company’s desire to settle may be diminished.
I am thankful that over the past couple of years, I have experienced less and less uncivil conduct by opposing counsel in litigation. It could be that the pandemic has adjusted attorney views of client priorities and their own personal priorities.
Settling a case, which is usually in the best interest of the conflicting parties, means staying focused on the specific business issues that are able to be resolved to protect consumers from being confused. Keeping the parties engaged in settlement negotiations to come to a meaningful resolution of the issues raised comes together much sooner when lawyers are not clouding the material business issues with personal jabs or frivolous motion practice designed primarily to raise the costs of the case.
I am seeing an increase of mentorship programs, which I believe is helping the platform. Law firms and legal organisations, at the private and state level, are engaging in stronger pushes for mentoring.
Some organisations have default assignments of an experienced attorney with a less experienced attorney. Some ask for volunteers. However, either way, my experience over the past couple of years is that the overall state of conduct is more civil. Advocating hard for your client’s rights does not require incivility. In fact, when my opponent is a skilled advocate, I find that the respect level is heightened and we get to resolution quicker.
Even during the pandemic, it seemed that certain industries were able to dive deep into their IP portfolios and remain focused on protection and enforcement, including defensive measures. The silence of various industry distractions or interventions allowed for singular internal review in many companies so we didn’t experience a downtrend in productivity.
Advocating hard for your client’s rights does not require incivility.
Lack of commuting issues favoured this legal field, in my opinion. As pandemic-era restrictions are loosened, some judges are continuing to allow the flexibility that video status conferences add to everyone’s efficiency and productivity. It has been eye-opening and is shifting the past rigidity on in-person meetings that may require hours of travel for five minutes of face-to-face.
In-person court appearances are important, but are now being weighed against the issue presented to the court. For example, a summary judgment oral argument is generally better suited for face-to-face in the court with the judge, but much less so for a short status hearing to check that the case is moving forward.
Digital assets in the nature of video conferencing improvements have served the legal profession – at least as far as I have experienced in the past two years – for the better. I have heard from a number of judges on best practices for this type of judicial interaction.
Julie A Katz, Founder
1711 N Hermitage Ave., Chicago, Illinois 66602, USA
Tel: +1 312-857-3101 | +1 312-593-3100
Julie Katz has over 30 years of experience in the intellectual property arena, working closely with clients on both litigation and prosecution across numerous technologies, industries and consumer markets. Her practice is focused on aligning her clients’ intellectual property portfolio with their overall business strategy by identifying, protecting and maximising their IP rights. With a deep understanding of IP law and enforcement strategies, a client-centred service philosophy and a history of successful litigation outcomes on high-profile infringement cases, Julie has earned the tactical and nuanced insight that allows her to rigorously protect her clients’ business interests.
In this article we speak with Julia Abrahams, chief counsel at Catholic Healthcare Limited and a leader in aged care law, on the challenges facing older people in Australia and what legal practitioners must do to ensure their wellbeing.
Aged care typically refers to the private and government-funded ageing-related supports and services that are available in Australia for persons aged over 65 years of age.
It can include supports and services for person younger than 65 years of age if they are assessed as requiring aged care. This includes persons in populations known to develop conditions of ageing at a younger age and persons who, because of significant permanent disability and lack of specialist disability accommodation, require residential care through residential aged care services.
It also includes retirement communities (independent and assisted living for persons over 55 years) and, in terms of legal practice, can include related areas such as guardianship and administration, privacy, end of life, human rights and mental health.
In Australia, residential aged care and community aged care are currently governed by:
A new Aged Care Act is expected in or around 2024.
Legislation regulating retirement communities is not regulated at the Commonwealth level. It is regulated on a state-by-state basis.
Disability is regulated under both state and Commonwealth law. The National Disability Insurance Act (Cth) 2013 and its Standards are key pieces of legislation.
The greatest issues currently impacting aged care legal practice in Australia are the speed, volume and far-reaching implications of regulatory change, largely arising as a response to the Royal Commission into Aged Care Quality and Safety which tabled its final report in September 2021.
This report, ‘Care Dignity and Respect’, followed two years of well-publicised hearings, public consultation, reports and research which highlighted deficiencies across the aged care sector and made numerous recommendations for reform. The Australian government is committed to introducing as many of these reforms as possible, as swiftly as possible.
Aged care regulatory reform also coincides with regulatory reform occurring across a number of other domains also highly relevant to aged care service provision. These include the most significant workforce reforms in the last 10 years, a dramatic increase in penalties for serious privacy breaches with further privacy/cyber reforms to come, dramatically increased penalties under the unfair contracts regime, progressive implementation of the voluntary assisted dying regimes, persistent agitation for change in human rights laws and promises of change in environmental stewardship requirements to come.
Practitioners advising aged care clients need to be aware of all these reforms and able to support aged care providers as they respond to the changes. Frequently, the need for legal advice and support is urgent.
The greatest issues currently impacting aged care legal practice in Australia are the speed, volume and far-reaching implications of regulatory change.
In some cases, these reforms, together with the impact of funding deficits and significant workforce pressures, may include assisting providers with consolidation and transformation as they rebalance their portfolios.
Arising from the Royal Commission into Aged Care Quality and Safety, two reform Acts were passed in 2022: the Aged Care and Other Legislation Amendment (Royal Commission Response) Act (Cth) 2022 and the Aged Care Amendment (Implementing Care Reform) Act (Cth) 2022.
Reforms under these Acts that have already commenced include, but are not limited to:
Reforms under these Acts to commence in 2023 and 2024 include, but are not limited to:
My greatest hope is that Australian aged care can be a place where all older persons are provided with quality care and services and treated with profound dignity and respect.
Consumers of aged care are our mothers, fathers, aunts, uncles, and grandparents. They are also us in years to come. They deserve our best.
First and foremost, aged care clients require accurate, timely, insightful and helpful legal advice and supports. This requires up-to-date knowledge of the law and the provision of helpful advice and support that takes the realities of aged care service provision into account.
Some of these realities include workforce shortages and transience, costs’ increases and funding shortfalls, increase in regulation and regulatory scrutiny and penalties, increased focus on privacy and cyber, impact of severe weather events and pandemics, crisis response and management, and transformation and consolidation of the aged care sector.
My greatest hope is that Australian aged care can be a place where all older persons are provided with quality care and services and treated with profound dignity and respect.
Next, many providers need legal advice and supports that they can afford; many providers are small- or medium-sized with limited resources.
Legal practitioners can also assist by providing alerts about legislative and regulatory changes and by working with providers, peak bodies and regulators in relation to profound legislative and regulatory change and change across the sector.
Julia Abrahams, Chief Counsel
Suite 1, Level 5, 15 Talavera Road, Macquarie Park, NSW 2113, Australia
Tel: +62 02 8876 2125
Julia Abrahams has served as the chief counsel of Catholic Healthcare Limited for more than 20 years. She has also served for a term on the advisory board of the School of Law, Sydney campus, of the University of Notre Dame Australia and was recently named one of the top 12 In-house counsel in the Health and Aged Care category in Australia in the Doyle’s list. In 2022, she received Lawyer Monthly’s Aged Care Law Counsel of the Year award.
Catholic Healthcare Limited is a for-purpose provider of residential aged care services, community aged care services and retirement communities. The organisation’s staff of almost 4,000 also support aged care residents who participate in the National Disability Scheme, older persons who are homeless or at risk of homelessness and older persons who live in conditions of severe hoarding and squalor. Catholic Healthcare’s services are provided from over 60 sites across New South Wales and South East Queensland.
In this feature, InCompass IP director Yannie Chan shares her insight on this process and its importance to many industries.
A freedom-to-operate (FTO) opinion is a legal opinion provided by a patent attorney or lawyer based on an FTO search for issued patents related to a product or a service with the aim to assess any potential infringement of the patent rights of other parties. An FTO search typically also involves identifying pending patent applications which may give rise to a potential risk once issued.
Companies of all sizes and areas of technology have, over the years, become more aware of the importance of protecting their inventions from being ‘copied’ or their patents being infringed by others, including their competitors. However, previously, the same level of vigilance was not always observed to prevent their products or services from breaching third parties’ intellectual property rights. This exposes the companies to potential risks of patent infringement disputes or litigation, which are well known to be expensive and time-consuming.
We generally recommend our clients obtain an FTO opinion during the research and development stage of a new product or service or before launching the new product or service to the market, especially for products or services considered as being commercially important and also where they are competing closely with competitors.
The FTO opinion may not only allow them to make more informed decisions during the development stage, such as by modifying their inventions to design around existing patents to avoid potential infringement risk, but also useful for the clients to identify potential key patents in the relevant field to minimise any patent-infringement risks or to take the appropriate action in advance to mitigate such risks. For example, the FTO opinion may help clients from having to withdraw or recall products or services from the market due to infringement disputes, which may financially damage the business as well as damage relationships with customers, distributors and other business partners.
We therefore see the FTO clearance process as an important step, if not a crucial step, prior to launching a new product or services to the market by a company.
We generally recommend our clients obtain an FTO opinion during the research and development stage of a new product or service or before launching the new product or service to the market.
In general, patent searches will be conducted based on the subject product or service to identify relevant issued patents and pending patent applications in the jurisdiction or jurisdictions concerned, such as where the product or service is going to be imported, manufactured, marketed, offered for sale or sold.
The searches may include keywords searches based on key features of the product or process concerned and the corresponding classifications, such as the International Patent Classification (IPC) and USPTO patent classification. Some searches may require further searches based on details of assignees and/or inventors of the relevant prior art technology known to the clients.
We suggest that both pending patent applications and granted patents are covered by the searches to ensure a more comprehensive coverage of searched subject matter in the relevant jurisdictions. As mentioned, the searches should be focused on the jurisdictions where the business activities for the product or service are required. However, we should also consider any international patent cooperation treaty (PCT) patent applications which are still within the time limits for national phase entry – i.e. within 30-32 months from the first filing date or priority date in general – for any potential national phase patent applications filed or to be filed in the jurisdictions concerned.
The patent documents identified by the searches should be analysed by a patent attorney or suitably qualified lawyer to assess if the subject product or service is considered to fall within the scope of any claims of the patent documents. An opinion on the potential infringement risk based on such analysis will then be produced.
First, patent searching is by nature an inexact process and it is always difficult, if not impossible, to guarantee that any particular search is exhaustive of all potentially relevant documents. For example, patent applications are generally published 18 months after their filing or priority date, and we should therefore be mindful that a search will not be able to locate any applications which are not yet published at the time the search is carried out. A follow-up search within at least 18 months after may therefore be advisable if a high-confidence FTO process is required.
In addition, the accuracy and completeness of searches based on publicly available patent databases are also subject to the accuracy and completeness of those databases and the patent subject matter classifications. Follow up searches may help in identifying any discrepancies due to differences in records from different patent databases.
Patent searching is by nature an inexact process and it is always difficult, if not impossible, to guarantee that any particular search is exhaustive of all potentially relevant documents.
During the FTO analysis of the search results, care is required in construing the scope of the claims of issued patents or patent applications discovered in the FTO search(es) to take account of legal precedents on claim language construction in the relevant jurisdictions and to account for legal doctrines such as the doctrine of equivalents. Some of the terms or expressions from the claims may seem on their face to have a plain meaning, but analysis of the claim language must consider the broadest reasonable interpretation of the claim language and the content of the issued patent or patent application being assessed.
For any claims with terms or expressions which are deemed ambiguous, care must be taken to try and ascertain what was intended in the patent specification, but alternative constructions resulting from any ambiguity must be considered. This is to minimise any potential risks that the claim language may later be given a broader or different meaning from that which is considered pertinent.
FTO opinions are often required by the pharmaceutical industry and the demand has remained high over the years.
For example, we have conducted a considerable number of freedom-to-operate analyses for generic drugs imported for supply by the hospitals here in Hong Kong. The Hong Kong Health Authority requires FTO opinions to be presented when a generic drug is being offered for sale in Hong Kong. In our experience, FTO analysis is highly valued by our colleagues in the pharmaceutical industry due to the high costs in developing new drug products and the long period of time required for the R&D and clinical studies to be conducted prior to bringing new drugs into the market.
Another sector is the telecommunications industry – also due to the high costs of product or service development and the high value of many such products and services. It is also common for some manufacturing companies such as power tool or electric motor manufacturers to obtain FTO opinions as, for these products, the variations from one product to another could be small but significant enough to give rise to expensive infringement risks.
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FTO analysis involves the formulation of search strategies and the interpretation of patent claims which are complex tasks. It can be useful to seek a second opinion from an experienced patent attorney colleague when conducting the FTO analysis, especially when the claims of the potential conflicting patents are not direct or clear. It is also imperative to obtain sufficiently detailed information from the client about the subject matter that the opinion is based on to facilitate a thorough analysis.
Yannie Chan, Director
Unit 205, 2/F, Building 19W, 19 Science Park West Avenue, Hong Kong Science Park, Pak Shek Kok, New Territories, Hong Kong
Tel: +852 2607 4308 | +852 2607 4272
Fax: +852 2607 4457 | +852 2607 4282
E: Yannie.Chan@inCompassIP.com
Yannie Chan is a professionally qualified Patent Attorney in Australia and New Zealand, and a registered Trade Mark Attorney in Australia and director and partner at InCompass IP Limited. She is experienced in drafting, filing and prosecuting patent applications in various major jurisdictions, and has provided numerous patent infringement, freedom to operate, and validity opinions for clients. She is also recognised by leading IP publications such as the IP Lawyers as the recommended IP practitioner in Hong Kong for 2023.
InCompass IP Limited comprises a team of Hong Kong- and London-based attorneys who provide international IP services to clients locally and worldwide. The firm’s services include filing and prosecuting patents, trade mark applications, drafting of patent specifications, trade mark searches, patentability and infringement searches and opinions. The InCompass IP team is experienced in securing IP rights for clients across a broad range of industries.
Jeff Streets, a highly experienced IP attorney, speaks with us on the necessary steps involved in obtaining a utility patent and the requisite skills to look for in hiring a patent attorney for the job.
A patent is a type of property that gives the patent holder the right, for a limited period of time, to exclude others from making, using, selling, offering to sell, or importing the subject matter that is within the scope of protection granted by the patent. If the subject matter is a new and useful process, machine, article of manufacture or composition of matter, or any new and useful improvement thereof, then the patent is referred to as a ‘utility’ patent. In other words, a utility patent grants a property right in an inventive method, apparatus or composition.
By contrast, a ‘design’ patent may be granted for a new, original and ornamental design for an article of manufacture. The word ‘ornamental’ means that the property right is directed to the appearance of the article, rather than the functionality of that article. Accordingly, an owner of a utility patent could stop another person from making a product that provides the patented functionality regardless of the appearance, but an owner of a design patent could only stop a person from making a product with the patented appearance.
A plant patent may be granted to whoever invents or discovers and asexually reproduces any distinct and new variety of plant.
The term ‘breadth of coverage’ is often used to refer to the scope of the claims in an issued patent. Since it is the written words of the claims that describe the scope of the property right conferred by the patent, the breadth of coverage of a utility patent is determined by interpreting the scope and meaning of the claims. Drafting an appropriate set of claims requires experience, skill and strategy in order to accomplish two critically important and competing objectives.
The first objective is to write claims that describe features that are new, useful and non-obvious relative to existing publicly available information (aka ‘prior art’) so that the claims will be allowed to issue in a patent. The second objective is to write those same claims without any unnecessary details so that the property right enables the patent holder to effectively deter others from making, using or selling articles or using processes in competition with the patent holder.
The scope of the claims in any patent is a function of both the prior art and the manner in which the claims are written to emphasise and focus on the new, useful and non-obvious features of the invention.
Drafting an appropriate set of claims requires experience, skill and strategy in order to accomplish two critically important and competing objectives.
The crucial first step toward obtaining a utility patent is for the inventor to prepare an invention disclosure. The patent attorney is responsible for preparing the patent application to meet the legal requirements of the United States Patent and Trademark Office (USPTO) and implement a suitable claim strategy, but the quality of a patent application is improved if the inventor or applicant provides a complete and detailed disclosure of the invention and its various embodiments. The use of drawings is strongly encouraged. As part of the patent application, the attorney will prepare a set of claims that vary in scope and serve as a series of patentability questions.
After the patent application has been finalized to the satisfaction of both the applicant and the attorney, the application is filed with the USPTO. The USPTO will assign a serial number and filing date, then notify the applicant of any missing parts, such as an inventor’s declaration. After a period of several months, the USPTO will assign a patent examiner that will search for relevant prior art and provide the applicant with an office action describing any rejections made against the claims. The applicant must file a response addressing all of the rejections within a period of about three months.
Next, the patent examiner will send out either a final office action or a notice of allowance, where the final office action may either maintain the earlier rejections or set out new rejections that may have been necessitated by the applicant’s claim amendments. The applicant has the option to appeal any final rejections or continue working with the patent examiner by filing a request for continued examination, but the process is intended to lead to a conclusion by the final office action or any response to the final office action.
An experienced patent attorney that focuses on patent preparation and prosecution will prepare the patent application with a view toward avoiding the many potential rejections that can be made against an application. For example, the patent application must include a written description that describes the invention with sufficient detail to enable a person having an ordinary level of skill in the art to make and use the invention without undue experimentation. A patent application with broad claims may require a broad description, including multiple embodiments.
Furthermore, the claims themselves must convey a clear and definite meaning while being directed to patent eligible subject matter that is new, useful and non-obvious. Each of these requirements is the applicant’s responsibility and failure to meet any one of these requirements may prevent the patent application from ever resulting in an issued patent. It is critical to address these issues during preparation of the patent application because the applicant is prohibited from adding new matter to the patent application after filing.
An experienced patent attorney that focuses on patent preparation and prosecution will prepare the patent application with a view toward avoiding the many potential rejections that can be made against an application.
To be an effective advocate, a patent attorney must have a deep understanding of both patentability standards and the relevant technology of the patent application. It is also necessary to determine whether a rejection of the claims is based upon a logical fallacy, an improper patentability standard, a failure to address every limitation of the claims, an unreasonably broad or improper interpretation of the claims, an incorrect understanding of the prior art, and similar errors. These types of improper rejections should be rebutted with legal arguments supported by legal citations and/or technical explanations supported by citations to the prior art or the applicant’s specification and drawings.
If a claim rejection is determined to be valid, then it may be necessary to submit claim amendments closely based on the applicant’s specification and determined to narrowly distinguish the claims from the prior art. Furthermore, if the patent examiner has made a clear error and will not withdraw a rejection, then it may be a successful strategy to file an appeal. Patent examination practice and procedure is a very specialised endeavour and there is no substitute for knowledge, experience and ability.
A person may not represent an applicant for patent before the USPTO unless they are in good standing on the USPTO’s register of patent practitioners. In addition to this requirement, you should look for a patent attorney whose practice focuses on patent preparation and prosecution and who communicates with you in a clear and prompt manner. Applicants with little or no experience with patent preparation and prosecution will heavily rely upon the patent attorney’s ability to communicate the procedures, objectives and strategies that must be understood to manage the prosecution of their patent application.
A patent attorney should also study your invention disclosure and quickly exhibit a solid understanding of your invention. The patent application is a technical document as much as it is a legal document. So, the patent attorney must have a solid understanding of the invention and an ability to prepare a comprehensive and clear written description of the invention. For many inventions, the patent application will also require drawings that illustrate the claimed aspects of one or more embodiments of the invention.
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Certain inventions may benefit from additional case-specific efforts. In one example, a chemical process or formulation may benefit from numerous examples or experimental results to provide enablement for embodiments across a broad range of component concentrations or show criticality of a specific ingredient, concentration or process condition. In another example, a software-related invention may benefit from a review of recent patent ineligibility decisions to identify claim limitations and specification support that will overcome abstract idea rejections.
Your patent attorney should be able to identify these situations and request additional information that may improve the likelihood that you will be granted a patent for your invention.
Jeff Streets
20319 Corbin Creek Drive, Cypress, TX 77433, USA
Tel: +1 281-732-1945
Jeff Streets has been a registered US Patent Attorney for over 29 years, with a focus on US patent application preparation and prosecution. Jeff has handled patent prosecution for large and small companies and independent inventors, and understands the different roles necessary to best serve these distinct client types. In addition to 29 years of experience in patent preparation and prosecution, Jeff has earned a Bachelor of Science in Chemical Engineering, a Masters of Business Administration, and a law degree.
Streets Lawfirm, PC provides patent application preparation and prosecution services covering a wide range of technologies, including computer software, mobile apps, computer systems, mechanical devices, chemical and electrochemical processes, chemical formulations and compositions, and oil field tools and processes.
A birth injury involves a physical injury to a baby that occurs as a result of some event during labour and childbirth. While birth injuries are rare and occur in only six or seven births per 1,000 deliveries, they can be a devastating event with emotional, physical and financial implications to their parents and families. Birth injuries range from minor temporary injuries such as bruising and swelling to more permanent spinal cord and brain injuries that require life-long care or can even lead to death.
Medical practitioners care greatly for their patients but, on rare occasion, they fail to recognisz signs of problems during labour and delivery. Whether they are an obstetrical nurse, nurse midwife, obstetrician or maternal fetal medicine specialist, miscommunication can occur during labour and delivery.
In addition, during a pregnancy, test results can be missed or misinterpreted by a medical practitioner, resulting in a lapse of care that causes harm to a mother and baby. For example, failure to recognise elevated blood pressure during pregnancy or recognise irregular fetal heart rate patterns are also serious medical errors. Most medical errors do not result in harm, but if a critical test is not ordered and peformed, the ability to intervene and prevent the injury is lost.
Common prenatal causes of birth injuries often involve the failure to diagnose or manage conditions that occur during pregnancy, such as gestational hypertension (high blood pressure) and gestational diabetes, which put the baby at risk at the time of delivery. Both conditions require screening and testing in order to make the diagnosis. Vigilant management of the condition is then required to make sure the mother and fetus do not suffer adverse effects.
For example, gestational hypertension poses the risk of kidney and neurological damage to the mother and the risk of growth restriction and low weight at birth to the fetus, which can pose further risks for neurological injury. Failure to manage diabetes that develops during pregnancy also puts the baby at risk for macrosomia and shoulder dystocia during birth, as well as for hypoglycemia after birth.
Vigilant management of the condition is then required to make sure the mother and fetus do not suffer adverse effects.
Common causes of birth injury during labour and delivery involve failure to recognise the signs of and relieve developing fetal acidemia from hypoxia, which is a condition where the baby does not receive enough oxygen for a sustained period of time during labour. The underlying conditions causing the decreased oxygenated blood flow to the fetus include nuchal cords, premature placental separation, and uteroplacental insufficiency. Depending on the cause and the severity of the underlying condition, the failure to intervene in a timely manner can sometimes lead to brain injury in the baby. Bleeding under the scalp (cephalohematoma) and sometimes more serious bleeds inside the skull can occur from operative delivery with forceps or a vacuum. In some cases, neurological injury can result.
Shoulder dystocia can occur during a vaginal delivery if the baby’s shoulder becomes stuck behind the pubic bone of the mother and the baby cannot slip under it. Providers are trained to perform various maneuvers to dislodge the shoulder and safely allow the baby to be expelled by the mother. If dystocia is not recognised or if there is pulling on the baby’s head in an attempt to pull the baby out, the nerves in the neck can be stretched or ruptured with resultant injuries to the function of the arm.
Remembering that most deliveries are carefully and skillfully performed by the obstetrical team and do not result in any harm to the mother or baby, if proper care is not followed during all stages of the pregnancy, labour, delivery and the neonatal period, serious injuries can occur to both mother and baby.
Medical negligence claims are usually brought in state court unless there is diversity of citizenship among the parties, which may then require adjudication in federal court. Next, there must be a medical basis for the negligence claim which establishes that there was a departure from the required standard of medical care. This requires an experienced birth injury attorney who can sort through the medical records and discern whether the injury was an unfortunate unpreventable injury or the result of potential medical malpractice.
The next set of proofs require connecting the error to the injury that resulted. Once liability and causation have been established, the damages that can be recovered include the costs of past and future health care for the child, compensation for the child’s pain and suffering, as well as emotional damages for parents. When the injuries are severe and permanent, the cost of properly caring for these children can be in the millions of dollars.
First, focus on getting the best care possible for the injured baby. Brain-injured infants often need pediatric neurology care for brain cooling right after birth and seizure control later on. These children may also require gastroenterology care if they are unable to feed themselves and require feeding through a tube. Physical and rehabilitation medicine physicians often provide therapy to reduce spasm and increase musculoskeletal health.
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Next, contacting an experienced birth injury attorney is important in order to obtain information and evidence that may be required later to establish medical negligence. Keeping track of all doctor visits, medical bills and costs for all of the special needs of the child is very important. Only after a full evaluation of the medical information and careful planning can a birth injury lawsuit be brought.
Birth injuries often require evaluation of radiological imaging, such as ultrasounds, CT scans and MRI scans. Understanding the legal implications of the findings on these imaging studies provides a distinct advantage in litigating these cases. Detailed medical knowledge of what the images show is important when deposing defense experts, as well as in our cross-examination of the defendant/medical practitioner. Being able to read the x-rays helps when discussing the baby’s injuries with experts and during deposition and when showing them to the jury.
Being experienced in both medicine and law allows me to build a firm scientific and medical foundation for our cases, without which no lawsuit can succeed no matter how talented the attorney. That is my first task. Once a case has a strong medical basis, it must then go through the discovery process where depositions of physicians and medical experts require someone who is able to competently question the defense medical experts to debunk their attempts at undermining an otherwise proper case.
Armand Leone, MD, Esq., Partner
175 Rock Road, Suite 4, Glen Rock, NJ 07452, USA
Tel: +1 201-444-1644
Armand Leone is a partner and head of the medical malpractice practice at Britcher, Leone & Sergio, LLC, bringing his medical background as a Bboard-Certified Diagnostic Radiologist to his practice as an attorney. A Fellow of the College of Legal Medicine and a Fellow of the New York Academy of Medicine with experience working with multiple medical experts in complex cases, he has been honored by New Jersey Law Journal as an ‘Unsung Hero’ at its 2020 “New Jersey Legal Awards.”
Britcher, Leone & Sergio, LLC is a law firm specialising in personal injury and medical malpractice matters, with offices in Glen Rock and Morristown, New Jersey. The firm is focused on such matters as serious/catastrophic injury, birth injury, vehicular accidents, product liability, nursing home negligence, wrongful death and defective drugs and medical devices.
Joining us this month is noted family lawyer Kennedy Koblin. In this exclusive interview, he explains what is meant by ‘parental alienation’ and how parents and legal counsel can be vigilant for it during divorce proceedings.
Parental alienation as used in family court is a specific term of art that encompasses a broad array of behaviour of one parent or the other aimed at disrupting, or interfering with the relationship of the child or children with the other parent. It often manifests as a series of orchestrated behaviour usually over a prolonged period of time aimed at estranging the chid or children from the other parent.
Although parental alienation is not presently specifically defined by the California Family Code, the family court has codified by statute broad language to provide a framework whereby co-parenting and involvement of both parents in the lives of the chid or children is encouraged, and behaviour that could ultimately be defined as parental alienation is discouraged.
The overall aim of the family court with regards to children is to ensure orders that are in the children’s best interests and, in the absence of any facts or circumstances that would speak otherwise, orders that foster frequent and continuing contact with both parents are presumed to be in the best interests of the child or children.
In any separation or divorce matter involving children who are minors, it will be necessary for the parents (either on their own or with the assistance of the court) to come up with a parenting plan that defines the framework for everything from legal custody to the specifics of the time-share arrangement between the parents (often referred to as physical custody).
It is often in attempting to establish a parenting plan that parental alienation – when it occurs – can begin to be observed.
There is a multitude of ways that parental alienation manifests itself in every case. Commonalities, however, often involve continuous negative comments by the alienating parent about the other parent to the child, attempting to convince the child or others that the other parent may be unfit or in some cases potentially harmful to the child or children, frequent cancellation of custodial time, and even using the scheduling of extracurricular activities for the child that directly conflict with and interfere with the other parent’s custodial time.
There are really endless iterations of how parental alienation can manifest, but they tend to function to support the goal of disrupting the relationship and bond between the alienated parent and child.
Unfortunately, the negative impacts of parental alienation on a child are often severe. Separation or divorce is always a difficult time for the children involved, and it is often that time when the children need both of their parents the most.
It is often in attempting to establish a parenting plan that parental alienation – when it occurs – can begin to be observed.
It is not uncommon for children in separation or divorce matters to feel in some way responsible. When the bond between the alienated parent and the child is disrupted, the children who are usually already struggling with the separation or divorce often express feelings of low self-esteem, low self-confidence, anxiety and depression. In some cases children develop lasting problems with trust and relationship-building well into their adult lives.
This is what I refer to as collateral fallout relating directly from the actions of the alienating parent, because the child of the alienated parent often has extended family – like other children (perhaps from prior relationships), grandparents, cousins, etc. When the direct relationship between the alienated parent and the child suffers, it usually follows that the extended family unit is also estranged from the child.
It is not uncommon for the child who has been subject to any degree of parental alienation to transfer the negative feelings they have about the alienated parent to that parent’s extended family unit. As a result, the child is deprived of a relationship not only with the alienated parent but also that parent’s extended family, which unfortunately ends up hurting the child the most.
There are often several specific signs of parental alienation that manifest when it occurs, both within the child him or herself, and in the actions and behaviours of the parents themselves, both in their interactions and communications with each other and often observable in the pleadings themselves.
Within the children, evidence of parental alienation often manifests by an extreme alignment with the alienating parent and a level of hostility towards the alienated parent that is not in alignment with any action that parent has taken.
The child who has been subject to alienation will often express derogatory views of the parent that they have been alienated against, refuse visitation with that parent, and withdraw from or stop communicating with that parent.
Signs of parental alienation can often be seen in the parent’s (or parties) themselves as well. They typically manifest in overly hostile communications, absolute refusal to co-parent, failure to make the child or children available for visitation, making excuses regarding the availability of the child or children, refusing to engage in co-parent counselling, and (as discussed above) sometimes even actively coordinating extra-curricular activities for the children that knowingly and purposefully interfere with the other parent’s custodial time.
In my experience, I think parental alienation can often be inflicted both deliberately and to an extent accidentally. When one discusses parental alienation at large, one tends to think immediately to an active, knowing, orchestrated campaign against the other parent. However, in every separation and divorce case, emotions run high. Sometimes angry, hurt, or resentful parties will lash out at the other parent in emotion, with the one thing they both love the most – their child or children.
In my experience, I think parental alienation can often be inflicted both deliberately and to an extent accidentally.
There is an entire host of issues regarding family dynamics that may arise during a divorce. This includes communication, cooperation, the ability to put the needs of your child or children over your own, and the ability to work with the other parent (despite your feelings about them) to provide a safe and secure environment for the child or children that shields them from the separation or divorce and ensures that they know they are still loved equally by both parents.
In my experience, parental alienation is often the result of an extended and continuous process of one parent to maligning the other to the child or children. Therefore, facts and evidence are extraordinarily important, because without them, I think there is a tendency for courts to get lost in the only things they see – which are the pleadings and allegations of each party. While the courts are not strangers to this and can often make their own conclusions from the volume and tone of the pleadings, it is tremendously important to be organised with your facts and evidence.
I often advise clients to keep a journal, keep notes, and record each instance of perceived alienation, be it a cancelled visit, an ‘illness’, a refusal to make a child available for phone time, etc.
Issues pertaining to child custody and visitation can be complex and nuanced. An experienced family law attorney will be able to assist a client, who is understandably emotionally involved in the case, in making clear-headed decisions with an eye on what the law provides for.
Additionally, proving a case of parental alienation is often difficult. As they are usually so fact- and evidence-driven, an experienced family law attorney will be able to parse out what is relevant from what is not and assist their client in presenting their case in a clear, concise fashion that is supported by both the evidence code and the family code.
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I grew up in a medical household and I watched my father, who is a cardiologist, intervene directly in people’s lives and be instrumental in changing them, and sometimes even quite literally saving them. The ability to engage in a profession that allows you to be directly involved in individual’s lives in a very important way, and make fundamental differences, is what drew me to focus my practice solely on family law.
Within the legal profession itself, I am hard-pressed to think of any other area where you work directly with people and families, going through what is often one of the most difficult times in their lives and are able to truly make a difference and be impactful.
While challenging for sure, I find the practice of family law to be both professionally and personally rewarding and fulfilling work.
Over the course of my career I have been truly blessed with the many people I have been able to meet and the families that I have been able to assist. Thus it is difficult to pinpoint one particular case to highlight a result I am particularly proud of.
However, one recent and particular example that comes to mind is a case wherein my client had temporarily lost custodial rights due to false domestic violence allegations and my team and I were able to step in, cross-file for a restraining order for our client and secure the immediate return of the child to their custody.
2022 has been a real opportunity for me to grow in several personal ways, and I would like to continue to take my personal and professional experience and continue to grow my practice to assist as many families as I can.
I am fortunate that at this stage in my career I can be judicious about the cases I take on. I always enjoy getting to know my clients’ families and their own specific and unique dynamics. For 2023 and beyond, I would like to continue to be able to do that.
Kennedy Koblin, Founder
5700 Stoneridge Mall Rd., Suite 230, Pleasanton, CA 94588, USA
Tel: +1 925-298-4808
Fax: +1 925-203-9797
E: kennedy@koblinfamilylawcenter.com
Kennedy Koblin is highly experienced family lawyer and a member of the Alameda County Bar Association who enjoys helping his clients through the difficult process of divorce and marital dissolution. Kennedy’s clients also benefit from his combined experience as a JD/MBA, which provides him with a perspective rooted in both business and the law. He is also a two-time recipient of the State Bar of California’s Wiley Manuel award in recognition of his pro bono contributions to the family court.
