Understand Your Rights. Solve Your Legal Problems
In this feature we hear more on the subject from Thomas VanNess III, who scrutinises the legal mechanisms by which LLCs and LPs can be used to protect a client’s assets by isolating them from creditors.
Business owners, real estate investors and physicians, amongst everyone else with wealth, are targets for those people looking for a payday by taking advantage of the inefficiencies and injustices commonly seen in our legal system. The US is an incredibly litigious society and, regardless of where you look for statistics, always seems to land in the top five most litigious countries. Because of this, and the amount of effort it takes to create wealth, it is only natural that people would look for ways to protect their wealth once they have it. The world is full of uncertainty and clients find comfort in knowing that the wealth they have worked hard to accumulate is protected if disaster strikes.
Asset protection is the legal practice of using federal and state laws to clients’ advantage by structuring clients’ business and financial affairs in a way that protects them from losing their assets. This may include protecting assets from business disputes, contractual obligations, personal guarantees, automobile accidents, premise liability, malpractice, and all sorts of actions or omissions that clients (or their children) may make or fail to make. There are many strategies out there, each with individual pros and cons. The backbone of these strategies often includes using domestic and offshore trusts, limited liability companies (LLCs), and limited partnerships (LPs).
If an LLC or LP is set up correctly (in the proper jurisdiction, with the proper management and equity structure, with formation documents with protective provisions) and certain formalities are followed, a personal creditor of the client cannot access the assets in the LLC or LP. Likewise, a creditor of the LLC or LP cannot access the client’s personal assets. LLCs and LPs separate assets and liabilities by putting up a ‘firewall’ to limit the potential exposure to our clients’ assets.
The protection provided to LLCs and LPs is due to a creditor’s exclusive remedy under certain states’ laws being limited to a ‘charging order’. A charging order only permits a judgment creditor to await distributions intended for the debtor from the LLC or LP. Since the charging order is the exclusive remedy, this means that the creditor cannot make any management decisions or force any distributions. Thus, the creditor has a piece of paper entitling the creditor to distributions, if any are made. Since the debtor has control over distributions, the debtor will not make any distributions given this scenario.
Business owners, real estate investors and physicians, amongst everyone else with wealth, are targets for those people looking for a payday by taking advantage of the inefficiencies and injustices commonly seen in our legal system.
A lot of thought and strategy goes into separating assets and liabilities amongst various LLCs and LPs. The more assets in an individual LLC or LP, the greater the potential of loss if a lawsuit were to result from ownership in one of the assets in the LLC or LP. For example, if a real estate investor owned three rental properties in a single LLC and a tenant was injured on one property and got a judgement, the equity in the other two rental properties may be available to the creditor.
Similar to how LLCs and LPs can put a ‘wrapper’ or ‘shield’ around assets to protect them, trusts work by isolating assets from potential claims. Rather than the client holding legal title to assets, clients can transfer assets they want to protect to a trust the client creates. If an asset is owned by a properly structured trust, laws are available that do not allow creditors to recover against this asset. The assets may be protected against claims even though the debtor can benefit (as a ‘beneficiary’) from the assets in the trust. This is possible because the client no longer holds legal title to the asset. Instead, a trustee (usually a family member, friend or trust company) holds legal title and is under a fiduciary duty to administer the trust for the benefit of the beneficiary.
In the US, only an ‘irrevocable’ trust can provide any protection if the creator of the trust or beneficiaries of the trust are sued. When the creator of the trust is not willing to give up access to the trust assets but wants to protect assets, trusts are typically set up either in a state that has ‘self-settled asset protection trust’ legislation or in a foreign country that does not recognize US judgements.
The laws in many jurisdictions provide that if certain requirements are met, no creditors can reach assets owned by a trust. Generally, there is a statute of limitations that must pass for the trust asset to be offered protection. Trusts are frequently used in tandem with LLCs and LPs to provide the client with greater protection, control and anonymity.
To implement an effective legal structure to protect clients against claims brought by third parties, we must first understand the degree of risk and corresponding level of protection justified for the client. If the client is a retiree and unlikely to have creditor issues, we do not go to the lengths we would to protect assets for an ambitious entrepreneur involved in a high-risk business operation. Everyone can benefit from asset protection planning; the question is to what extent planning should be undertaken. We also must understand the client’s assets, goals and estate plan and be cautious of nuances and tax traps.
The most significant pitfall we encounter is that most clients will wait until it is too late to consider using asset protection strategies. For asset protection strategies to work well, most strategies must be implemented well in advance of any potential creditor issues. In the cases where asset protection strategies fail, it is usually because the person waited too close to the act or omission which gave rise to the liability. The other cases where asset protection strategies fail are where bad acts or fraud is committed. Asset protection strategies protect good people from falling prey to frivolous lawsuits and bad decisions.
Trusts are frequently used in tandem with LLCs and LPs to provide the client with greater protection, control and anonymity.
The law is full of nuance, and having a technical expert well-versed in asset protection strategies can put clients in a position of power rather than having to play defence when disaster strikes. One of the first things a litigator will try to do is determine if the debtor has sufficient assets to recover if they are successful in a lawsuit. An experienced asset protection specialist can increase clients’ chances of their assets not being discoverable or, if their assets are discoverable, that the law makes them unavailable to the creditor.
Thomas VanNess III, Founder
2101 NW Corporate Blvd, Ste 410, Boca Raton, Florida 33431, USA
Tel: +1 561-927-9027
Thomas VanNess III is a highly experienced attorney who has worked with thousands of families, from small business owners to high net worth families, to accomplish their wealth transfer and tax objectives. He prides himself on staying ahead of the estate and tax planning curve, keeping abreast of the always-changing legal and financial landscape and integrating the latest techniques and strategies into his practice. He is also a frequent speaker on legal topics, having spoken at national tax conferences, NFL retreats, the University of Miami and the National Business Institute.
Dr Sébastien Gobat of Troller Hitz Troller shares his experiences with us in this article, diving deeper into the process involved in litigating cartel proceedings and other antitrust matters.
A cartel proceeding typically begins with a ‘dawn raid’ by the Swiss Competition Commission (COMCO) on companies that may potentially participate in an unlawful agreement or are allegedly abusing their dominant position. It is therefore necessary to be particularly reactive and, ideally, already assist the companies concerned in their premises during the dawn raid. The next step is to quickly understand what is at stake in the case. This means understanding the economic functioning of the relevant market in industrial sectors that are sometimes completely new to me – but this is also what makes my job so exciting. The relatively long duration of the proceedings – several years if all remedies are exhausted – and the relatively complex legal issues raised by these cases represent further challenges.
The most common antitrust violations fall into two categories: 1) agreements that significantly restrict or eliminate competition on a specific market for goods or services and 2) abusive conduct of dominant undertakings.
In the first category, it is common to find illicit price-fixing agreements, whether on a horizontal level (i.e. between competitors) or on a vertical level (i.e. between a manufacturer and its distributors or between a wholesaler and retailers). It is also common to find agreements in the context of public bidding (‘bid rigging’). For instance, companies may agree not to participate in a certain bidding procedure, or define a rotation system for their participation in such procedures, or agree on the prices and conditions to be offered.
In the second category (abusive conduct of dominant undertakings), it is not uncommon to find dominant undertakings that try to consolidate their dominant position by refusing to supply customers, discriminating between trading partners in relation to prices or other conditions of trade or trying to impose unfair prices.
A cartel proceeding typically begins with a ‘dawn raid’ by the Swiss Competition Commission (COMCO) on companies that may potentially participate in an unlawful agreement or are allegedly abusing their dominant position.
The COMCO places particular emphasis on key sectors, especially those that affect the infrastructure and basic services of the Swiss economy. It is therefore common for proceedings to be opened in the sectors of construction (especially the road construction sector), finance, telecommunications and health. However, more specific sectors – such as the French book market recently – may also be investigated by the COMCO.
If a company finds – as a result of an internal audit, for instance – that it is participating in an agreement that is likely to be considered unlawful under antitrust law, it is worth considering whether it should initiate a so-called leniency programme by reporting the unlawful conduct to the COMCO. A leniency programme may lead to the avoidance of a financial sanction or to a substantial reduction thereof. Such a measure will be relevant if no proceedings have yet been initiated by the COMCO or if an investigation procedure has just started.
If an investigation has already been initiated and it is too late to participate in a leniency programme or if the position of the COMCO is contested, the company will have to defend its position, in particular by making use of its procedural rights. In such a case, the lawyer's role will also be to assess the legal risks and to reach, if necessary, an amicable agreement with the COMCO in order to settle the case and limit the costs of the procedure.
Companies potentially exposed to antitrust risks should implement a compliance and prevention programme. The starting point of any compliance and prevention programme is the identification of the existing antitrust risks (risk analysis). The risks can be identified either by the company's internal compliance department or by an external lawyer.
It is also important to conduct regular training courses at an early stage with the company's staff in order to develop a corporate culture sensitive to antitrust risks. Particular emphasis should be placed on the employees who regularly meet with competitors or who have any role in the company's pricing policy.
Finally, the programme should be monitored at regular intervals and corrective measures taken if necessary.
Companies potentially exposed to antitrust risks should implement a compliance and prevention programme.
The new regulation on companies with relative market power that came into force on 1 January 2022 has led to some notifications to the COMCO. The impact of this new regulation is not yet clear and it is too early to assess its effectiveness. However, from a practitioner’s point of view, it appears that many companies that may be victims of abuse by suppliers with relative market power are reluctant to complain to the COMCO, as this could jeopardise business relationships that may have existed for many years with their suppliers and are essential for the companies concerned.
In this respect, it can be noted that the COMCO has just opened an investigation against the French publishing group Madrigall. In this context, it will examine whether Madrigall is unlawfully limiting the possibility for Swiss book retailers to buy books in France at better conditions. This investigation may likely result in a first leading decision on the new provisions on relative market power.
In such a situation, my task will be to assist the companies to obtain merger clearance from the COMCO. In concrete terms, this means preparing a merger notification and accompanying the companies concerned through the notification procedure, representing them before the COMCO. Ideally, when the timing of the merger allows it, it is common practice to submit a pre-notification to the COMCO so that the latter can assess whether the draft notification is complete. This allows the COMCO to anticipate the formal notification and to collect the necessary data in good time to assess the case. As our office is located in Berne - like the COMCO - this proximity is an advantage for the interaction with this authority.
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Dr Sébastien Gobat, Partner
Troller Hitz Troller
Münstergasse 38, CH-3011 Berne, Switzerland
Tel: +41 31 328 36 36
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Dr Sébastien Gobat is a partner at Troller Hitz Troller in Berne, Switzerland. He is specialised in antitrust, unfair competition and the various areas of intellectual property law. He also has proven expertise in distribution law (agency, license and franchising agreements) and insolvency law. He regularly advises companies in the field of antitrust law and represents them before the Swiss Competition Commission (COMCO) in the context of investigations or merger notifications.
Troller Hitz Troller is a renowned Swiss law firm. Established in 1941 with offices in Berne and Lucerne, it offers services in the fields of intellectual property (trademark, patent, design and copyright law), antitrust and unfair competition law, as well as contract and business law.
We explore companies’ options further in this exclusive interview with Alan Roberts, director at Grant Thornton, who also shares his thoughts on how the insolvency sector in Jersey may develop in the near future.
The options for companies entering into a formal insolvency process in Jersey are currently limited to liquidation. This contrasts with Guernsey, where administration and a differing liquidation process exist. Importantly, Jersey law is markedly different from English law and anybody seeking an insolvency or restructuring solution in Jersey should consult a resident Jersey insolvency practitioner or experienced advocate on the island.
Unfortunately, at present, modern restructuring procedures such as administration or a Company Voluntary Arrangement do not exist. A recent law change in 2022 introduced a modern creditors’ winding up process whereby a creditor can issue a statutory demand and, if unanswered or a company is demonstrably insolvent, can petition the Court for a winding up order. The Jersey Companies Law has provision for compromises and arrangements with a cram down element, but these are not commonly used for insolvency restructuring processes other than in large cases.
The concept of receivership is not recognised in the Companies Law in Jersey. However, the Royal Court has recently appointed an asset receiver and there are law reform discussions taking place that contemplates introducing receivership into the Security Interests (Jersey) Law 2012 to permit appointment in the event of default of a secured debt.
It is fairly common for a Jersey-registered company that has its COMI elsewhere to have its affairs wound up in another jurisdiction. The best example of this is the UK administration process where letters of request are frequently issued by the Royal Court in Jersey to, for example, the English Court, for a Jersey company to be placed into administration in England. The disconnect with the two laws manifests itself at the end of the English administration, where no provision in the English law exists for a Jersey company to be placed into English creditors’ winding up. A Jersey liquidation may then follow!
Jersey law is markedly different from English law and anybody seeking an insolvency or restructuring solution in Jersey should consult a resident Jersey insolvency practitioner or experienced advocate on the island.
Commonly encountered concerns for Jersey based businesses mirror the challenges of mainland economies as a result of the rise in interest rates and costs of supply chains. However, a small island economy has certain stresses magnified. This manifests itself in the shortage of labour in certain sectors due to housing and work permit limitations, the costs of the logistics chain for imports to a small island, and the cost of air and sea freight and passenger travel which has a knock-on effect on demand for hotel accommodation.
The scale of production also remains a constant challenge to the agricultural sector, which has reduced in recent years in the face of cheaper imports, although none of these areas have produced substantial insolvency or restructuring work in recent times.
The finance industry represents a major driver to the Jersey economy and government and stakeholders defend its continued success in the world of global wealth management.
The effect of COVID-19, so far as formal insolvency and restructuring is concerned, has been difficult to assess. There has been no significant increase in formal liquidation or restructuring work so far as this practitioner can report. However, changes are noticeable in activity in certain areas of the economy and, on a small island, businesses can discreetly close down without formal winding up.
Importantly, the just and equitable process for winding a Jersey company up has provided wide scope for restructuring, albeit within a liquidation. The Royal Court’s jurisdiction is wide when appointing a liquidator under this process. It is not, per se, an insolvency process and permits the court to tailor a winding up order to fit the desired restructuring. This has, in the past, permitted the effective administration, through a quasi-prepack process, of a Jersey group to allow survival of a business that would otherwise have closed.
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The prospects for future insolvency and restructuring work in Jersey may be for a more modern legal process to be introduced along the lines of administration, if the finance industry encourages it. Voluntary arrangements and receivership would be positive moves to bring Jersey into line with other modern common law jurisdictions. Additionally, there may be a more proactive approach to sanctioning delinquent directors via a strengthened reporting regime by liquidators.
Alan Roberts, Director
2nd Floor, Kensington Chambers, 46/50 Kensington Pl, St Helier JE1 1ET, Jersey
Tel: +44 01534 885742
Alan Roberts is a director at Grant Thornton Limited. He is a Chartered Accountant, UK-licensed insolvency practitioner and Certified Fraud Examiner. He has specialised in insolvency and restructuring work for over 30 years across several jurisdictions, including the UK, US, Caribbean, Europe, Far East and the Channel Islands. He is one of only four Jersey-approved liquidators.
Grant Thornton Limited (Channel Islands) is a member firm of Grant Thornton with offices in Guernsey and Jersey. Both offices have been established for more than 35 years, with a history of providing top-quality professional services to a wide range of corporate and private clients that operate in a variety of different sectors both locally and internationally.
In this feature, we examine the administration of trusts and estates in the wake of the holder’s death. Estate planning specialist Laura Nelson-Becker provides insight into the process involved, as well as the critical role performed by lawyers throughout.
The procedures of an estate administration in California depend largely upon the nature and extent of a decedent’s assets and whether the decedent had a living trust in place at the time of his or her death. Where there is a living trust, the administration can proceed relatively quickly and privately.
Many people mistakenly believe that a living trust avoids administration completely. However, this is not the case. Although most trust administrations occur outside the court’s supervision, there are still many important administrative tasks that must be completed. The successor trustee must fulfill his or her fiduciary duties to the beneficiaries, which requires some formality.
In a routine trust administration, a trustee can expect to complete tasks such as sending notification and information to beneficiaries, marshaling assets, accounting to beneficiaries, addressing debts, completing required tax filings and distributing or managing trust assets in accordance with the trust instrument. Trustees are entitled to reasonable compensation for their services unless the trust instrument provides otherwise.
A trust administration usually comes with significant cost savings, even if the trustee is represented by legal counsel. I usually recommend that trustees avoid attorneys that charge fees based on a percentage of the value of the trust’s assets – this almost always overcompensates the attorney. Hourly or flat rate billing tends to result in more reasonable attorney fees.
If the decedent died after 1 April 2022 and the estate is a ‘small estate’ with a total value of less than $184,500, simplified procedures apply and no probate is required. Probate is similarly not required to transfer ‘non-probate’ assets such as those held in joint tenancy or those with pay-on-death beneficiary designations.
I usually recommend that trustees avoid attorneys that charge fees based on a percentage of the value of the trust’s assets – this almost always overcompensates the attorney.
Where the value of the decedent’s estate exceeds $184,500 and the decedent does not have a living trust, his or her estate must be probated. This means that the administration of the estate is supervised by the probate court. Even if the decedent had a will, a probate is required. The first step is to petition the court to open a probate administration. Once the initial hearing on the petition is held, the court may appoint a personal representative to administer the estate. The personal representative can expect to inventory and appraise estate assets, manage creditor claims, handle tax returns, account to the court and request court orders on distribution of assets.
A personal representative is entitled to compensation for his or her work in administering an estate. The California Probate Code sets the amount of a personal representative’s compensation, which is a percentage of the value of the estate’s assets. Many personal representatives who are also beneficiaries of an estate will waive compensation since compensation is taxable as income. The Superior Court of California for the County of Santa Clara has a fantastic website detailing the specific steps in a probate administration.
The timeline for administration of a trust and estate vary widely. While a trust administration is usually much quicker (nine months to one year), a probate will require more time. The average probate in California is rumoured to take anywhere from one year to 18 months to complete. With the significant caseloads currently handled by the probate courts, much of the delay is caused by time spent waiting for court availability, and some counties are more impacted than others. Complications may arise with sales of real property, creditor claims and other issues, requiring additional time.
I also find that it is common for self-represented individuals to experience difficulty complying with the technical requirements of a probate administration, setting the timeline for completion back even further. Overlooking even a small procedural technicality may result in a continuance that causes months of additional delay.
The most common issues that I see in my practice result from disputes between family members. These disputes may have their roots in deep family history and dynamics, but usually manifest as legal disputes over property ownership or entitlement to distribution. This could result in contests to the validity of wills and trusts, such as those alleging undue influence or lack of capacity, or lawsuits claiming an ownership interest is estate assets or wrongdoing by fiduciaries.
The most common issues that I see in my practice result from disputes between family members.
Proper and thoughtful estate planning is crucial. Drafting attorneys need to have foresight and must have the ability to anticipate the mess of potential issues that may arise in certain situations. For example, where clients intend to disinherit an heir, the drafting attorney should adequately document the client’s intent in a way that helps dissipate the likelihood of litigation in the future.
Certain circumstances should raise red flags for drafting attorneys, such as where an individual appears to be overly involved in an elderly or dependent client’s relationship with the attorney – scheduling and attending meetings, completing forms, paying fees, or otherwise directing the representation. These types of situations are ripe for future issues and drafting attorneys need to be constantly on the lookout so they can react appropriately.
The most important thing is to take time to grieve. Oftentimes, families get wrapped up in all the legal and administrative tasks that must be handled and become overwhelmed. In most situations, there is no immediate need to act and families can give themselves grace to focus on what is important first (the soonest deadline associated with estate administrations is usually no less than 30 days).
When it is time to move forward with the administration, they should gather together all of the decedent’s legal documents. This will allow them to first determine what type of administration will be required so they will know if the court must be involved.
Lawyers are a critical component of both estate planning and administration. On the planning side, a good lawyer can help establish a thoughtful and complete estate plan, simplifying administration after death. A lawyer can also help navigate the process of estate administration during a very emotionally difficult time. There are many technicalities associated with estate and trust administrations and neglecting these requirements can result in significant delay and cost. Most importantly, trustees and personal representatives have important fiduciary duties and must carry out their obligations with reverence to these duties. Even slight missteps can result in potential liability or unnecessary conflict.
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The lawyer representing a fiduciary ensures that he or she understands their obligations, helping to insulate the client from potential liability. In most cases, a trustee may hire an attorney and pay attorney fees from the trust’s assets. With a probate administration, the Probate Code sets the amount of the attorney compensation, so all attorneys will charge the same amount for ordinary work in an administration. The attorney fee is not due until ordered by the court and is paid at the completion of the probate from the estate assets.
Laura Nelson-Becker
263 Main Street, Placerville, CA 95667, USA
Tel: +1 530-295-6400 | +1 530-617-1692
Fax: +1 530-663-8459
Laura Nelson-Becker is a partner at Becker Nelson Center & James who practices almost exclusively in the field of trusts and estates. She has been certified as a legal specialist in Estate Planning, Trust and Probate Law by the State Bar of California Board of Legal Specialization since 2017. In addition to estate planning and administration matters, Laura regularly handles litigated trust and estate disputes, including will contests, claims against fiduciaries, and property ownership disputes.
Becker Nelson Center & James (BNCJ) provides legal services to individuals and business clients throughout Northern California, handling matters in real estate, business, labour and employment, estate planning and administration, trust and estate litigation, civil litigation, family law and personal injury.
The debt recovery process necessarily involves in-depth fact-finding and additional concerns depending on the relevant parties’ attachment to Switzerland. In this feature we hear from Marcel Frey, counsel at Prager Dreifuss, who outlines the obstacles that can be faced during this process and offers his insights on how they can most effectively be tackled.
Switzerland is an important venue with regard to international debt recovery, since assets are frequently located in Switzerland (most often in the form of a bank account or securities located at one of the many Swiss banks, or international banks with offices in Switzerland). Swiss debt enforcement offices and local courts are thus very familiar with cases involving foreign creditors looking to enforce claims in this jurisdiction. Also, proceedings up until the court stages are simple and inexpensive as they involve primarily the debt enforcement office.
Recovering international debts in Switzerland, however, presupposes some link to Switzerland. Such a link may take the form of assets maintained in Switzerland (i.e. bank accounts, securities, real estate or other fixed assets). Another point of connection may be that the debtor actually has its registered seat in Switzerland or – in the case of a natural person – is a Swiss resident.
Where the debtor is resident or incorporated in Switzerland, debt recovery starts with the issuance of a payment summons against the debtor. This process is initialised by the creditor requesting the debt enforcement office at the place of residency or incorporation to issue a payment summons against the debtor. The payment summons contains the information about the debtor, the amount due and the reason for the debt (in summary terms).
The summons requires payment within 20 days. Upon service, the debtor may contest the payment summons, but must do so within 10 days. Doing so then puts the onus on the collecting party to have the objection set aside. This involves a court assessing whether the debt is owed and due, and only at this stage does a judge become involved. Successful proceedings will entitle the creditor to continue with the debt recovery, which will then take the form of a seizure of assets in the case of a natural person or the threat of bankruptcy in case of a legal entity. The same applies if the debtor does not object to the payment summons and the 20-day grace period has lapsed.
Switzerland is an important venue with regard to international debt recovery, since assets are frequently located in Switzerland
In instances where the owing party is not locally resident but assets have been located in Switzerland, the creditor has the option of attaching those assets if an attachment reason is given. The foremost attachment reason in international contexts is where a creditor has a foreign judgement against the debtor. In such instances, the creditor may, for instance, have an account attached based on the foreign judgment. The debt enforcement office will then set short deadlines for the creditor to pursue its claim by means of debt enforcement (as described above, with the difference that the debtor must be served abroad based on the requisite international treaties, which may prove time-consuming and cumbersome).
Debt enforcement is governed by the Federal Act on Debt Enforcement and Bankruptcy (DEBA). International treaties such as the Lugano Convention or the New York Convention may come into play, where a foreign judgement or award forms the basis for the debt. Claims that have not yet become the object of court proceedings are enforced directly against the Swiss resident debtor based on the DEBA process outlined above, which again may require the serving of initial documents by means of international treaties (such as the Hague Conventions).
Where local courts need to ascertain the validity of the debt, the Swiss Civil Code and cantonal court organisation statutes come into play for certain procedural technicalities and the Federal Act on International Private Law as concerns aspects of substantive law.
The fact that a debtor organisation is particularly large does not in itself constitute a significant complexity. Where the debtor is incorporated in Switzerland, a quick online check in the electronic commercial register should suffice to establish the place of incorporation of the debtor and hence the district of the competent debt enforcement office.
A certain degree of complication may enter the fray if there is uncertainty which entity of a conglomerate is the actual debtor (i.e. a subsidiary or the holding company, or whether the debt was entered into by a company or a branch office located in Switzerland). However, these issues need to be resolved on a material level and do not as such impact on the actual enforcement.
Cross-border debt collection may be constrained by the challenge of locating assets in Switzerland, given that Switzerland does not have many publicly accessible registers that would enable creditors seeking satisfaction of their debts to locate assets ready for liquidation. Land registers are currently still maintained by each commune individually and these will only disclose information about ownership of real estate upon an individual inquiry as to a particular parcel.
Switzerland does not have many publicly accessible registers that would enable creditors seeking satisfaction of their debts to locate assets ready for liquidation.
As of 1 January 2023, a national real estate search tool has been introduced, but this is only accessible to public authorities. Authorities can submit queries based on the tool, which are then relayed to the communal real estate offices. This should in effect enable authorities (but not private individuals) to find out whether a debtor owns real estate in Switzerland, even though a central land register still does not exist. There are no central security registers and banks are not permitted to disclose the existence (or non-existence) of client relationships.
Shareholdings in companies are also still quite discrete. Important stakes in publicly traded companies and certain threshold shareholdings may be visible based on stock exchange regulations, but this is frequently insufficient for creditors. Against the recommendations of the Financial Action Task Force, there are currently efforts underfoot to draft legislation law that would introduce a central register of beneficial owners of companies. However, here too, the legislative intent is that the register would only be accessible to the relevant authorities and not to the public.
Once identified, the owner of an asset can try to halt enforcement if they can invoke valid reasons to contest the debt for either material or formal reasons. The underlying claim documents or court decision may become the object of a local court process which may be subject to appeal. During this time, the creditor can try to prevent the debtor from dissipating its assets and may find some relief through measures provided for in the DEBA, though these again are subject to court review.
Foreign documents evidencing a claim may require translation, though English evidence is regularly accepted by domestic courts which are sufficiently familiar with English. However, a claimant may be expected to assist the court in these proceedings, particularly where foreign law is at stake.
Whenever parties are entering into a commercial relationship where there is a Swiss connection (often by a party being Swiss) or where the parties seek to secure an objective commercially attractive governing law, opting for Swiss law is advisable. This makes enforcement in Switzerland significantly easier, as courts do not have to apply a law unknown to them. Translation issues usually fall by the wayside.
On another level, obtaining advance security for performance and agreeing on a forum for performance and for disputes may take the uncertainty out of contractual deliberations.
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Avoiding legal problems is always smarter than having to deal with controversies once they have arisen. Background research on potential contractual counterparties is thus prudent and reasonably easy in Switzerland. Checking the entries of a person or company in the local debt registry will inform the inquiring party in advance whether there have been any debt enforcement steps against the potential counter party in the past. Though no guarantee, earlier behaviour may give a good indication of how much leeway should be given to the other side with regard to safeguards to performance.
Marcel Frey, Counsel
Mühlebachstrasse 6, CH-8008 Zürich, Switzerland
Tel: +41 44 254 55 55
E: Marcel.Frey@prager-dreifuss.com
Marcel Frey is a member of Prager Dreifuss’s Dispute Resolution and Private Clients Teams. He represents Swiss and foreign clients in court and arbitration proceedings in addition to providing advice to private individuals on enforcing civil claims in complex cases of white collar crime. Marcel also regularly advises clients in international judicial assistance proceedings and the recovery of illegally acquired assets. In addition, he specialises in the enforcement of Swiss and international decisions in Switzerland.
Prager Dreifuss is a prominent Swiss law firm with a highly regarded international practice. Its team of 45 lawyers offers a full range of services to both businesses and private clients, frequently drawing upon its relationships with overseas firms to provide bespoke solutions.
The Turkish startup ecosystem has experienced a significant increase in the number of tech start-ups spearheaded by the gaming, finance, health and eCommerce sectors, which have attracted domestic and foreign investors and grabbed billion-dollar investments by reaching record valuations. At Gökçe Attorney Partnership, we provide legal expertise to a swath of tech start-ups at every stage of their journeys.
Figopara, a pioneer fintech Turkish company, is one of the start-ups to which Gökçe provides its key legal expertise. Figopara offers solutions for cash flow problems arising from the discrepancy between the payments and collections of companies, acting as an intermediary between financial institutions and suppliers with the Figopara online platform. Since Figopara’s establishment, Gökçe has been aiding Figopara and its founders in all legal and financial processes with its years of experience in the start-up ecosystem.
Figopara received an investment of $11 million at a valuation of $50 million in its latest investment round, which was closed in the last quarter of 2022. In this investment round, Figopara has secured investment from 11 local and international leading investors, including the International Finance Corporation, the private sector arm of the World Bank Group, and local and cross-border investment funds.
Görkem Gökçe, the founding and managing partner of Gökçe, aims to transfer his deep knowledge of the start-up ecosystem to Turkish start-ups and to contribute to their aim of becoming influential regional and global actors.
It is easy for me to say that Turkey has risen to a new level and become a core investment area in many different sectors in recent years. In 2021, more than 300 start-ups were established, receiving a total investment of $1.5 billion from nearly a thousand investors.
In the last two years, eCommerce, gaming and data analytics in finance (i.e. AI and machine learning) became the emerging sectors, receiving the most investments. I would like to highlight that most of these investments were made in start-ups that had just received their first investments, while almost half of these start-ups were founded in the last 2 years.
As such, it is safe for me to state that eCommerce, gaming and data analytics have received significant investments and have shown greater development than in other areas in recent years, although their rankings (in terms of the number of transactions) vary. It is because conventional production ideas are being replaced by technology, software, and even blockchain-based applications in today’s world. I find these developments will have positive impacts and believe that the number of such initiatives will only increase in the upcoming years.
Turkey is a regional hub. Having the potential to address a large market and having a young, dynamic, and educated population can be listed as the reasons for the recent increase in investments in Turkish companies. I believe, however, that the most important reason for the surge is the increasing number of creative start-up ideas.
As the world is moving away from conventionality towards a technology-centric understanding, the investments in Turkey are in line with this global trend if not faster. I can easily state that the large number of projects developed by Turkish entrepreneurs, especially in the past 5 years, and the number of incentives and support mechanisms provided by Turkish legislation for investments in start-ups, are the main driving forces behind the development of the start-up sector in Turkey.
Turkish legislation provides many incentives and supporting mechanisms for all investments in Turkey, and in particular for investments in start-ups. For instance, if the share certificates related to the shares acquired through an investment in a joint stock company are held by the investor for at least two years, the income from the sale of such share certificates is completely exempt from tax for real persons and substantially exempt for legal entities. Further, the start-ups and companies carrying out R&D activities have more tax exemptions.
Turkey is a regional hub. Having the potential to address a large market and having a young, dynamic, and educated population can be listed as the reasons for the recent increase in investments in Turkish companies.
As for the venture capital market, the Turkish capital market legislation regulates various financial institutions such as venture capital investment trusts (VCITs) and venture capital investment funds (VCIFs) have many advantages over venture capital investments and, thus, over start-ups.
Firstly, the earnings of VCITs and VCIFs arising from their activities, including the purchase and sale of shares, are exempt from corporate and income tax.
Secondly, they can provide a mix of debt and equity financing to start-ups, which is a method provided only for the shareholders under Turkish legislation and VCITs and VCIFs.
Lastly, carried interest and management fees, which are remuneration incentive mechanisms for the managers, are introduced to enable start-ups to receive professional management support for investment processes from experts in their fields.
It would be best to answer this question from a financial and a legal perspective.
One of the main challenges that foreign investors may face in Turkey is finding business partners with deep knowledge and expertise in the start-up sector and professionals who can provide brokerage and advisory services for the investment. Unlike traditional businesses, start-ups have their own set of dynamics and it is therefore critical to work with advisors who understand the structure, nature, functioning and basic motivations of start-ups, rather than with advisors having a conventional perspective. In this regard, as a firm that always aims to meet the needs of its clients, we provide legal support and expertise for foreign investors new to Turkey through our membership in international platforms and institutions operating in various countries around the world.
As Gökçe, we have deep knowledge and know-how gained from years of working with start-ups. Since our establishment, we have provided legal consultancy in all stages of a start-up journey, from their establishment to potentially their exits. Further, as we operate on a full-service basis, having Corporate, TMC&Privacy and Litigation departments, we can easily meet the needs of our start-up and tech clients.
One of the very unique features of the Gökçe team is having the ability to structure the legal deal in the most appropriate way for the financial outcome that the parties intend to reach. We always prioritise understanding the financial dynamics between the investor and the investee to design the legal relationship.
Last but not least, the long-established and high-quality network that Gökçe has developed in both legal and financial circles over the years plays an active role through its business partners competent in their respective fields, in providing the expertise that foreign investors and start-ups may need in different fields.
One of the very unique features of the Gökçe team is having the ability to structure the legal deal in the most appropriate way for the financial outcome that the parties intend to reach.
The main goal of tech companies is to provide products and services in a more practical, cost-effective and accessible way. Tech start-ups provide more accurate, faster, and more affordable solutions than conventional tools in areas in need of development ranging from the daily needs of people to the financial analysis necessities of the business world. It is much clearer what the core activities of tech start-ups are and how they can advance these activities through the lens of this determination. In this context, the main tendency of tech companies to provide more accurate, fast and affordable services and to automate these services is to collect more data. To achieve this objective, data analytics, artificial intelligence and machine learning activities may be listed as the main trends observed in the activities of tech companies.
The second issue that I can address at this point is ’confidentiality‘. In a globalising world, access to all kinds of information is becoming easier and easier day by day and this has disadvantages as well as advantages. Data analysis has reached the sophistication level to enable personality analysis, and personality analysis is a tool that can be used to direct masses. Consequently, even though data analysis is essential for the advancement of service industries these days, confidentiality and privacy concerns embedded in data analysis are more relevant than ever. However, the solution for these issues is, in turn, technology itself.
Whilst there have been several high-profile privacy violation cases and tracking of cryptocurrency transactions, blockchain-based solutions such as decentralised identity and zero-knowledge proof prove to be useful in allowing individuals to have control over their data and privacy. It is clear that this will be at the forefront of the considerations of most financial actors in the upcoming years.
Since our establishment, as Gökçe, we have played a key role in the investment rounds and exit transactions of our clients’ start-ups as well as the ongoing operational advisory services. Even in 2022 we were involved in several transactions of similar size to the investment round of Figopara or even larger, whether publicly announced or not. The number of investments we provide our legal expertise has been rapidly increasing in the past few years. It is no surprise that we continue to play a key role in transactions of such sizes considering the number of start-ups to which we have provided our expertise in the past, be it in the stage of establishment, pre-seed investment round or seed investment round.
Since our establishment, we always had a diverse client portfolio including both conventional companies and start-ups.
The ongoing worldwide crisis and manoeuvres of financial actors, including central banks, to curtail cash flows have made it difficult to access funds in many sectors. As a principle relevant to the markets and economy in general, every crisis contains the seed of an opportunity. In recent years, both the economic crisis and other crises, such as the pandemic, have led to a contraction in some conventional sectors, while paving the way for others. Figopara is a great embodiment of this principle. Figopara, as a fintech company mediating solutions for cash flow problems, has been able to bring in a solution to the cash flow problem faced by market actors. This idea was happily welcomed by investors as a solution to the current crisis and led to one of the largest investment rounds in Turkey in 2022.
Apart from this, the other start-ups that we provide consultancy have developed solutions to shift physical services to online mediums responding to a pressing necessity during the pandemic; therefore, they were able to grow fast amidst the crisis.
Finally, due to the impact of the economic crisis on investors’ risk perception and behavioural finance attitudes, many investors have shifted from traditional investment instruments to start-up investments.
Figopara, as a fintech company mediating solutions for cash flow problems, has been able to bring in a solution to the cash flow problem faced by market actors.
These realities have shown that shifting circumstances create new business areas with new challenges and opportunities for expansion within existing business areas. I would like to underline that, by providing consultancy services to our clients operating in various fields, we can easily adapt to the new conjuncture brought by the rapidly changing and sometimes shrinking market and, in the meantime, be affected minimally by the floating structure of the economy.
The fundamental challenge faced by all start-ups is the same as the basic assumption of economics: the demands of financial actors are unlimited; however, the resources are limited. This fundamental assumption is present in all aspects of everyday and commercial life. The situation of investors and start-ups participating in investment rounds can also be perceived through this assumption. At this point, the main challenge in all start-up investments is balancing the demands of the parties to the transaction. Considering multilateral and cross-border transactions, achieving a common consensus can be characterised as an objective challenge in any transaction.
As Gökçe, we also analyse the financial demands of the parties to the transaction and strive to ensure that the demands of the parties are reasonable and in line with market conditions and that the transaction is carried out in accordance with the joint and mutual will of all parties. With the expertise we have accumulated over the years, we try to reflect the economic demands of the transaction parties to the legal realm, both through the tools already regulated in the legislation and through new legal fiction to the extent permitted by the legal order. Therefore, this situation, which can be characterised as an objective difficulty, is subjectively manifested as an added value for us when considered together with Gökçe’s depth of experience.
NAZALI is an international full-service law firm that provides a broad spectrum of advisory services to its clients with a qualified team of lawyers and other experts in different practice areas. These practice areas comprise tax, competition lawantitrust, IP, finance, privacy, customs, social security and audit. The Corporate and M&A team at NAZALI is co-led by partners Nilay Göker Duran and Ayşe Ülkü Yalaz. With more than 15 years of combined experience, the team provides advisory services to its international and local clients on all stages of buy-side and sell-side M&A transactions and represents investors, entrepreneurs, and start-ups in growth finance deals as well as fund raising and structuring. Considering highly interdisciplinary processes, such deals are evaluated by a wide range of other experts led by highly reputable partners, making NAZALI the best fit for such transactions. NAZALI reflects its deep sectoral knowledge in sector-specific M&A transactions in the healthcare, energy, fintech and automotive sectors, along with others.
NAZALI’s core objective is to establish a long-term and trust-based relation with its clients. What distinguishes NAZALI is its ability to evaluate matters from all related aspects under one roof to create comprehensive solutions and to develop solid strategies by virtue of interdepartmental communication.
We represented the leading investor, L2G Ventures, who was referred to us by our existing client and one of the investors of this deal, ScaleX. We always feel privileged to work with highly reputable and experienced clients. We conducted a thorough legal and tax due diligence and advised L2G Ventures on drafting and negotiating the deal documents. We also assisted our client during the signing, closing and post-closing stages.
This was an in-depth legal due diligence process that required analysing numerous regulations entangled with one another, including banking and finance, eCommerce and privacy. Yet there are some non-regulated aspects to markets supported by fintech and technology. In that respect, legal due diligence was quite challenging as it also involved certain unregulated matters. To refrain from disrupting the innovative and dynamic nature of this sector and to overcome problems encountered, we liaised on such issues with the Figopara team to systemise and understand their operations, which allowed us to identify advantages and risks accurately with a business-minded approach. Thanks to our client, we also adopted an entrepreneur-friendly approach with an open dialogue by sharing our due diligence findings with the Figopara team, allowing them to clarify such issues in a prompt manner ahead of closing. With the valuable cooperation of Figopara and their legal counsels, we were able to run such a complex process swiftly. We believe that such an approach provided significant benefits for the other investors as well.
Finalisation of the SHA was quite intricate considering Figopara’s relatively complicated shareholder structure and complex clauses accustomed to growth finance deals including liquidation preference, anti-dilution and others. Since SHA was subject to English law, we had to prevent conflicts to make it compatible with directly applicable rules under Turkish law. Finding a balance and reaching a viable SHA and articles of incorporation was vital and challenging. We overcame these challenges and tailored the SHA by working together with the counsels of all parties, making invaluable contributions.
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Furthermore, tech M&As are under scrutiny in Türkiye. The Turkish Competition Authority, which has amended its communiqué concerning mergers and acquisitions recently, is particularly interested in such deals. We established that obtaining approval from the Authority was also vital for this deal. Accordingly, the deal was tailored to allow certain control change clauses to be enforced following such approval and hence those were dealt with, designed and tailored separately in a way that could be legally enforced.
Representatives of Figopara and Gökçe Attorney Partnership as well as other parties’ counsels made invaluable contributions to the process with their cooperative, constructive and open approach. We had previously worked with our colleagues on different transactions, which allowed us to overcome challenges in a more amicable and prompt manner. Such a big deal with so many parties involved would not have been possible without the support of all parties involved with great harmony and teamwork.
Growth finance deals are not short-term transactions. Processes following the closing are also vital as ensuring stability is imperative. We also prepare a ’closing bible‘ that outlines what needs to be considered after a deal is sealed. Accordingly, we continue to assist and support our clients for the post-closing actions.
Last but not least, we also observe that sometimes the legislation falls behind emerging technology-related markets. As legal practitioners we are keen to understand the dynamics of these technologies, be a little less conservative by finding a balance, and determine an appropriate perspective for innovative and dynamic sectors with a solution-oriented approach.
Below, we take a deeper look at the process of patent prosecution in India with Dr Anju Khanna, partner and head of the Patent Department at Lall & Sethi. Drawing upon more than 20 years’ worth of experience in the sector, she shares her insights as to the most effective patent application techniques and likely developments for the future of patent law in her jurisdiction.
Patent prosecution is regulated by the Patents Act 1970 in India. The inventions covered by patents in India pertain to only utility inventions. Industrial designs are protected under the ambit of the Designs Act. The Patents Act 1970, along with the Patent Rules 1972, came into force on 20 April 1972 (after replacing the Patent Act 1911). Since then, various amendments in the Patents Act (hereinafter referred to as the Act) and Rules have been brought about from time to time. The Patents Act 1970 was last amended by the Patents (Amendment) Act 2002 (38 of 2002). It is read together with the Patents (Amendment) Rules 2021.
The patent prosecution process begins with the filing of a patent application (provisional/complete specification) at the Indian Patent Office (IPO). In case a provisional is filed, a complete specification is required to be filed within 12 months of filing the provisional, failing which the provisional automatically gets abandoned. A foreign filing license is required for an invention for which the inventor resided in India at the time of the invention, if the first application is to be filed outside India.
An application submitted to the Patent Office with a complete specification is published 18 months from the earliest priority date under section 11A of the Act. A request for examination under section 11 B can be filed within 48 months from the earliest priority date. Thereafter, the application is referred to an examiner for technical examination with respect to the patentability of the subject matter of the invention. Following a detailed examination, a First Examination Report (FER) is issued containing both formal and technical objections. The applicant has six months’ time from the date of issuance of the examination report to put the application in order for grant, with a one-time extension of one, two or three months.
A second examination report and/or an oral hearing may be issued for further clarifications and overcoming objections. New art may be cited in these reports. Also, an application, once published, can be opposed by any person by filing a pre-grant opposition until the date of grant under the provisions of section 25(1) of the Act. An application cannot be granted prior to six months from the date of publication. A patent can be opposed by any interested person within one year of grant under the provisions of section 25(2) of the Act. A patent can be revoked any time after grant by an interested person under section 64 until the life of patent either by filing a revocation petition or in a counter claim in a suit for infringement.
A foreign filing license is required for an invention for which the inventor resided in India at the time of the invention, if the first application is to be filed outside India.
India is signatory to various international treaties like the Paris Convention for the Protection of Industrial Property, the Patent Cooperation Treaty and the TRIPS agreement. Hence an application can be filed either as an ordinary or convention or national phase of a PCT application.
Under rule 24C of the Act, an applicant may file for early or expedited examination. The following applicants are eligible to file for expedited examination under the Indian Patent Act:
The Patents Act 1970 is the primary legislation that governs patent filing and prosecution in India. Being a signatory to the various international treaties, India is compliant with all its obligations under the treaties.
Ordinarily, the time to grant a patent depends upon time taken in different stages, which may vary from around three to five years, depending upon the case. The time period for filing request for examination (RFE) is 48 months from the earliest priority date. Once an RFE is filed, the application is examined between six months’ to one year’s time. The first step towards expediting the process is to file for RFE as soon as possible.
The IPO has taken several measures to increase transparency in the process and decrease delays in prosecution. The entire process from filing to grant is now conducted online, including oral hearings and also opposition hearings that are held through video conferencing. File wrappers of published applications are available online for public to access. Dynamic online utility services provide updated information about the status of an application. Vide noticed as of 16 January 2023 that the IPO is undertaking hearings in pending matters in an expedited manner. In addition to these, there are certain categories of applicants who can avail of expedited examination provisions as mentioned above.
In order to increase chances of a patent application being accepted by the IPO, some general considerations that must be kept in mind are as follows:
Many inventions are rejected on the basis of the subject matter of the invention, which should not fall under sections 3 and 4 of the Patent Act, i.e. must fulfil the criteria of eligibility. For example, pharmaceutical inventions are generally objected under sections 3(d) and 3(e); sufficient data must be provided in the specification to justify the technical advancement over the prior art for 3(d) and synergy in case of a composition, combination or formulation comprising multiple ingredients for 3(e).
As mentioned above, CRIs are objected under section 3(k). It is important to show technical effect of the software to overcome 3(k). It is also important to show a hardware component. For devices that are likely to be objected under section 3(f), it must be ensured that it is not a mere arrangement or re-arrangement of a known device. The device must be new and also all its components must act together to produce the desired technical effect.
The IPO has taken several measures to increase transparency in the process and decrease delays in prosecution.
With respect to inventions where biological material is used, a common objection raised is with respect to NBA (National Biodiversity Act) permission. An applicant must ensure that if the subject matter involves use of any biological resource obtained from India, its complete details are provided in the specification and NBA permission is taken, if required, to avoid an objection during the examination stage that normally delays grant.
Enablement is also a very common ground for objection. The claims must be supported with sufficient data and information in the specification. Use claims and method of treatment claims are not allowed in India and must be avoided.
An applicant must ensure that all the formal requirements of an application are complied with and that there is strict adherence to the various timelines. Requirement under section 8 ‘Statement and Undertaking’ must be taken care of by providing the details of the corresponding foreign applications within the stipulated time. Strict adherence to the stipulated timelines with respect to each of the procedures involved must be observed to avoid formality objections.
One of the most common mistakes committed by applicants is that they do not disclose sufficient data while filing the complete specification. It must be borne in mind that if the invention is not sufficiently disclosed and the subject matter of the claims is not enabled, it may lead to rejection of the application. Therefore, a balance must be struck.
Voluntary amendment of the as-filed specification after filing is not always allowed. The scope of amendments that may be allowed is restricted by section 59 of the Act. Therefore, care must be taken at the time of filing of the specification to ensure that it is carefully drafted.
Another common error is disclosure of information related to corresponding applications filed in other jurisdictions that applicants fail to provide. Material information not disclosed can lead to refusal of an application and is a ground for opposition and revocation of patent.
Another matter of concern is the strict adherence to timelines, failure of which may lead to fatal consequences.
Once a patent application enters into the examination stage, its fate depends in the hands of the examiner concerned. Therefore, it is very crucial for an applicant or patent attorney to handle the examination/hearing stage of an application skilfully. Communication skills play a very important role in patent prosecution. Clear, to-the-point and effective communication is a must.
Each of the objections raised in the examination report must be carefully addressed. The prior arts must be properly studied so as to be able to clearly differentiate the subject matter of the invention in question from the cited prior arts. The differences and the arguments must be clearly represented without leaving scope for any ambiguity. It is also important that no statement be made, in writing, at any stage of the prosecution that may act as an estoppel at a later stage, such as during litigation.
During hearings, the objections raised must be clearly understood before presenting a reply. Replies must be precise and to-the point unless a detailed answer is sought by the Controller. The applicant or attorney must utilise the opportunity efficiently.
Each of the objections raised in the examination report must be carefully addressed.
Keeping a tab on all the timelines once a patent application is filed until grant is very important to ensure that they are strictly adhered to. Continuous follow-ups with the IPO and self-audit of files on the IPO website are also important.
Two decades ago, only processes were patentable in respect of inventions relating to pharmaceuticals, food, drugs and substances produced by chemical process. Since 1 January 2005, patents are open to grant in all categories of inventions, which has made a significant impact in India.
Comprehensive e-filing services, including hearings through video conferencing, have facilitated inventors and applicants, which have in turn enhanced patent filing in India. Recording of hearings also help avoid misuse of the system.
Early disposal of the applications has changed the whole working of IPO and has reduced the grant time. The search engine InPass has vastly improved and every document filed with the IPO gets uploaded in the concerned file wrapper within the same day .
Several kinds of applicants can avail discounted official fees and expedited examination as mentioned above. This has given a boost to filings by start-ups and educational institutes.
The IPO has published guidelines for Computer Related Inventions (CRIs), pharmaceutical and biotechnology-related inventions and inventions based on traditional knowledge. It has also published an updated Manual for Patent Practice and Procedures. The Act requires approval from the National Biodiversity Authority for any biological material obtained from India, obtaining which used to delay the grant of the application. This process has now been streamlined by the IPO. In recent times, the IPO has allowed grant of patent right to a right holder even when the approval from NBA has been under process.
India is an IP friendly nation and has shaped and defined its laws and standards as per its global obligations under various treaties .
Establishment of the IPD (Intellectual Property Division) in the High Court of Delhi in 2022 and other High Courts (under process) in India has aligned the country with similar global practices to deal with IPR-related matters. This will help facilitate the efficient disposal of IP matters, as well as bringing consistency in the precedents set by the Courts in the areas of IP law. The IPD deals with all matters which are in the nature of original, appellate or any other proceedings related to IPR, which includes cancellation, revocation applications, other original proceedings, appeals and petitions from the various Intellectual Property Offices.
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2022 saw the notification of the High Court of Delhi Rules Governing Patent Suits, which provides procedures and mechanisms for simpler, effective and efficient adjudication of patent infringement cases. It also prescribes various procedures related to pleadings, hearings etc. Implementation of these rules has led to the setting up of standard procedures that will certainly help in adjudication of infringement suits.
Jurisprudence in patent domain has significantly evolved in the past decade and a half. India is becoming the jurisdiction of choice for Standard Essential Patent (SEP) litigation. In virtually every SEP case, the patentee has received favourable orders from the Court either in the form of an interim injunction (that leads to settlement between parties) or deposition of interim royalties or bank guarantees with the Court. With the advent of 5G technology in the telecommunication space, this is likely to increase further.
Similarly, the formation of specialised IP courts in the IPD has seen rapid advancement in development of jurisprudence, at least in the Delhi High Court. With formation of IPDs in other High Courts, the time frame of patent litigation is expected to see a further significant reduction.
Dr Anju Khanna, Partner & Head, Patents
D-17, South Extension II, New Delhi -110 049, India
Tel: +91 11-4289-9988 | +91 11-4289-9999 (Ext: 124)
M: +91 99-7168-1696
Dr Anju Khanna heads the Patent Department at Lall & Sethi and has also been the firm’s managing partner from 2019-2021. With more than 20 years of work experience and 18 years in the field of patents, she handles both patent prosecution and patent litigation at the firm. Dr Khanna oversees and handles work in various technology domains including chemistry, pharmaceuticals, telecommunications, medical devices, electrical and mechanical inventions, and she is actively involved with the Patent Office and the Department for Promotion of Industry and Internal Trade (DPIIT) regarding policy decisions.
Lall & Sethi is a boutique IP firm that provides a complete range of services relating to contentious and non-contentious IP issues. Its areas of practice include trademarks, copyright, designs, patents, confidential information and trade secrets, information technology and entertainment and sports law.
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We speak with Brett Rivkind, one of the most experienced maritime lawyers in the US, on the finer points of litigating personal injury cases that take place on a cruise ship and what victims should expect.
I would say the most common accident on a cruise is a slip and fall accident. There are a lot of slip and fall hazards. For example, on the pool deck, there is water and spillage of suntan lotions, drinks and many and other substances. In a hotel such as the Marriott where you might see concrete surfaces around the pool area to make it less slippery, the cruise ships tend to use surfaces that get unreasonably slippery when wet or foreign substances get on the deck.
Also, in the casinos and in other areas where they serve food and drinks, there is a lot of heavy traffic and often spillage of liquids or food onto the floor. Cruise lines tend to use surfaces that are designed for appearance, such as nice shiny marble. Therefore, slip and fall hazards are often encountered by a cruise ship passenger, resulting in a large number of slip and fall accidents on cruise ships.
If a cruise ship passenger does suffer personal injury during a cruise and a negligence case is brought against the cruise line, the typical damages will include what is called economic damages such as lost wages, medical bills and other expenses. There are also non-economic damages, which refers to damages for the human elements associated with an injury, which include pain, suffering, disability, disfigurement, inconvenience, mental anguish and inability to lead a normal life.
A cruise ship is liable for an injury only if they are negligent. Negligence is the failure to exercise reasonable care for the safety of the passenger and will depend on the facts of each specific case. A passenger must prove the cruise line did something it should not have done or failed to do something it should have done. So, for example in a slip and fall case, if the cruise line knew or should have known of the hazard but failed to act in a timely manner to eliminate or mitigate the hazard, which resulted in the injury, the cruise line would be responsible.
What constitutes reasonable care under the circumstances will vary from case to case and the type of case. I have handled just about every conceivable type of injury case on a cruise ship, having tried cruise ship cases since 1983. Each fact pattern has to be carefully analysed in order to properly present the evidence to establish liability on the part of the cruise line.
There are many obstacles and restrictions to consider in a case involving a cruise ship passenger filing a negligence action against the cruise ship company. The law is federal maritime law, and there are unique aspects of the federal maritime law that must be known by the lawyer which differ from many state laws.
I would say one of the biggest obstacles is making sure that you hire the correct attorney who is experienced in maritime law and who knows the intricacies and specific laws that govern the cruise ship passenger case. In addition to the knowledge of the maritime laws that govern, an experienced cruise ship lawyer will also know what evidence the cruise ship company has that might be obtainable to help establish the case against the cruise line. Having handled many maritime cruise ship cases since 1983, including five years on the defence side representing cruise ship companies before deciding I only wanted to help injured people, I have vast knowledge of the different types of procedures and evidence a cruise ship company has that needs to be obtained in a case to help establish the negligence of the company and achieve success on behalf of the injured passenger.
One of the biggest obstacles is making sure that you hire the correct attorney who is experienced in maritime law and who knows the intricacies and specific laws that govern the cruise ship passenger case.
Another very big restriction that has to be known is the existence of very special deadlines that apply in a cruise ship passenger case that most lawyers who do not handle maritime cases do not know about. For example, on the passenger ticket for the cruise – which is considered a contract under the law – there are important provisions that must be known because they are enforceable. One of them is a time deadline to give notice to the cruise line of the intent to assert a claim against the cruise line for negligence. The most important deadline is the statute of limitation deadline, which is one year to file the lawsuit from the date of the injury. If you fail to file the lawsuit within that one-year period of time, you forever lose your right to file a lawsuit against the cruise ship company for your injury.
These are just a couple of examples. Again, a maritime lawyer will know how to navigate around, above, or directly through these obstacles and restrictions.
If a cruise ship passenger is injured during a cruise, make sure to report it. Make sure the cruise line is aware of the accident. Take pictures. Get the names and contact information of any witnesses. Do not be pressured into filling out a statement about the accident if you do not feel that you are capable of adequately completing the accident report because you just suffered an accident. You should insist on waiting. It may also be appropriate to say “I want to take the form to my cabin and carefully prepare it so it is accurate”.
If you have a cell phone that works from the cruise ship, and you are in doubt, you can reach out to an attorney. Our firm often receives text messages, emails and calls directly from the cruise ship from passengers who have suffered accidents asking questions how to handle the matter. Keep in mind that the cruise ship’s primary concern should be to rectify any hazards and to treat your medical problems properly, not to help them defend any potential lawsuit you may file later.
You do not have to be interrogated or fill out a lot of details. You do not want to leave out key details, such as the fact that you slipped and fell on a slippery substance on the deck. But for the purposes of the initial encounter on the cruise ship following an accident, there is no requirement to give them detailed information about your accident. You simply need to report that you had an accident, and if you are injured you should seek medical treatment and give a brief description of what happened and your injuries.
Oftentimes, the cruise ship employees, including the doctors are more interested in interrogating you to hopefully get you to say something that could be used against you later when you file a lawsuit. I always suggest that you not complete anything unless they guarantee you the ability to make a photocopy before you give it to them. Sometimes it may be appropriate to simply refuse to give a statement, although sometimes it can be used against you later in a lawsuit because it is trying to suggest you were hiding something.
If a cruise ship passenger is injured during a cruise, make sure to report it. Make sure the cruise line is aware of the accident. Take pictures. Get the names and contact information of any witnesses.
Cruise lines will often try to suggest that alcohol is the reason for your accident, so be careful of that. However, do not lie about drink consumption, because they do have records of the amount of drinks purchased on the cruise ship even though they are not able to accurately know if you actually consumed what was purchased.
Again, it is hard to give hard and fast rules other than to say take pictures, gather as much evidence as you can, and understand that no matter how nice the cruise ship employees are being to you after your accident, their job is to gather information to help the cruise line defend any potential future lawsuit.
It is vital to get a maritime lawyer involved because of the very short statute of limitations and notice deadlines, and the fact that material evidence can disappear, including surveillance video that may have captured your accident or otherwise capture important evidence that will help establish liability of the cruise line. We immediately send out our representation letter so the cruise line knows you have an experienced maritime lawyer representing you, and then we request any records from the ship that we are entitled to receive. We also request the surveillance video showing your accident. When the cruise line knows our firm is involved, most of the time they attempt to amicably resolve the case with us because they know about our experience and success rates against the cruise lines.
The ideal attorney should not be the first attorney that pops up on a Google search, especially in sponsored ads that attorneys pay for. The ideal attorney should be experienced in maritime law, as well as somebody that you can trust and that you feel comfortable communicating with. I always suggest you speak to your attorney that you are considering hiring and get a feel for his command of the subject matter, and how you feel you will get along with that attorney in the process involved, which sometimes will take a long time.
I am an AV rated firm by Martindale Hubbell, I have spoken in the United States Congress as an invited Maritime expert to address cruise ship safety laws, and I have been exclusively a Maritime lawyer since 1983. I always welcome a potential client to set up a zoom, Skype or face time meeting with me so they can meet me face-to-face and not only read about who I am, but see who I am and get a good feeling of confidence in hiring me to represent them in a very important matter.
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Often, people simply hire a lawyer who was on the top of the first page of Google, and that is a big mistake. Not only may you not relate to the attorney during the process, but the attorney may also not be the one who handles your case.
I have already touched upon my experience a little bit. But I started as a maritime lawyer with a large defence firm in 1983 representing the cruise lines. During my five years there I gained vast experience in handling every type of maritime personal injury and wrongful death case. However, my heart was not with being a defence lawyer. After five years with the defence firm, I decided I wanted to be a plaintiff's attorney representing injured people and family members who lost loved ones due to the negligence of the cruise ship company.
I have never looked back, and I have helped thousands of injured individuals on cruise ships. I have handled many high-profile cases, some of which have become the subject of a book, some of movies, and others have resulted in very important case decisions that have opened the doors to holding cruise ship companies accountable. The congressional hearings I testified about eventually led to the passage of legislation to make cruise ships safer for passengers. I am the past president of the Florida Bar Admiralty Committee. I have written articles and lectured on maritime law, including being selected as a speaker at a judicial college where I was a speaker addressing judges about maritime law.
Brett Rivkind, Founding Partner
Rivkind Margulies & Rivkind P.A.
169 E Flagler St, Suite 1422, Miami, FL 33130, USA
Tel: +1 305=374-0565
Brett Rivkind is a renowned maritime personal injury and wrongful death attorney. Having spent 40 years handling maritime law cases, with experience of both the defence and plaintiff side, he has dedicated himself to helping the victims of accidents and crimes. Many of his cases have been high-profile, representing thousands of individuals hundreds of victims’ families following disasters at sea. He frequently lectures on maritime topics in the legal sector and higher education and has made numerous media appearances, including on the Larry King Live show three times. He has also served as President of the Florida Bar Admiralty Committee.
In this article, we explore the explosive popularity of true crime content, its enduring grip on modern culture and why these traits have become a cause for concern among some legal professionals.
By its most common definition, ‘true crime’ is a non-fiction genre of popular media that concerns real-life crimes. The focus of a work of true crime may be a single case – often a murder, disappearance, sexual assault or other violent crime – or the collective acts of a single criminal. Emphasis is placed on the presentation of facts and, where possible, the establishment of a chronology of events that took place during the crime.
Most true crime works are divided between ‘solved’ and ‘unsolved’ in their choice of subject matter. The former examine historic cases where a culprit has been identified and most or all details of their criminal acts uncovered. The latter are characterised by the intense speculation they often stoke among avid fans as to perpetrators’ identities, actions and motives, though most content creators place the greatest focus on relaying known facts and state explicitly when opinion becomes involved.
One of the earliest and most well-known subjects of true crime fascination was the media-dubbed Jack the Ripper, whose serial murders inspired speculation that continues to the modern day. It can be said that ‘true crime’ is only the contemporary label that has been attached to a form of entertainment with a far longer history.
The first immortalisations of real-world criminals came in the form of ballads and penny dreadfuls, though the true crime genre as we understand it today has its roots in TV documentaries. ‘The Thin Blue Line’ and ‘Making a Murderer’ are two of the most prominent documentaries whose use of reenactments and other now-common techniques laid the foundations for the present shape of the genre. This would go on to be fully codified by the emergence of internet-based media and podcasts, such as ‘Serial’ in 2014 and ‘Dr. Death’ in 2018, among innumerable others that now fully saturate the subculture.
These podcasts, which can be listened to while travelling or otherwise active, saw a significant increase in popularity during the COVID-19 pandemic that some psychologists attributed to a need for escapism in daily life. Now, true crime is an entertainment staple. A full half of Americans polled in 2022 said that they enjoyed true crime media, with one in three saying that they consumed it at least once per week. The demographic most prone to enjoying true crime consists, perhaps surprisingly, of teenage and young adult women, with the majority preferring to view their favoured content in TV or film format.
A full half of Americans polled in 2022 said that they enjoyed true crime media, with one in three saying that they consumed it at least once per week.
Mainstream entertainment has seen the allure of true crime and the audiences that flock to it, and high-budget productions emulating the genre have begun to emerge. One such example would be Netflix’s controversial series ‘Monster: The Jeffrey Dahmer Story”, which focused predominantly on recreating the life of the titular serial killer – and which narrowly avoided a lawsuit from Lionel Dahmer over its perceived “exaltation” of his son’s killings.
True crime’s mainstream acceptance is not shocking. Many are drawn to this particular form of media in order to receive, as The University of Law’s Jennifer Schmidt-Petersen describes it, a controlled experience of fear and horror where “the stories of real-life killers can be to adults what films and shows depicting fictional monsters are for children”. Arguments that true crime is exploitative, promotes paranoia or sensationalises violence are not new to any form of adult-oriented fiction or non-fiction, and there seems to be little empirical evidence to suggest that it profoundly influences viewer behaviour.
However, there is somewhat more reason to fear the investigative culture that has been fostered in in many communities of true crime consumers. The ‘unsolved’ sub-genre of true crime taps into the attraction of playing armchair detective, picking apart a mystery that law enforcement has been unable to solve. Many pieces of true crime media appear to deliberately elicit these reactions, offering information sometimes not available to the public as ‘clues’ and pointing out unresolved threads in otherwise settled cases to engage the deductive segment of their audience. Speculation is often encouraged, and viewers often set out to find facts beyond what the original media has presented to them.
There is a wealth of documented instances of such internet communities getting involved in criminal investigations, or even unearthing new developments in otherwise cold cases. In some cases, this has led to positive outcomes; the efforts of amateur web sleuths were vital in unmasking the murderers of Gregory May and Abraham Shakespeare, among other cases. One notable example emerged in 2021 with the arrest of Paul Flores in connection with the death of Kristin Smart, for which California authorities thanked the creator of the eight-part true crime podcast ‘Your Own Backyard’ for turning up new witnesses for interview.
For each of the aforementioned successes, there are many more instances of prospective sleuths hunting the wrong target or taking it upon themselves to engage in internet vigilantism, often resulting in the harassment of victims’ families. True crime’s new popularity has thrown the relationship between journalists and the subjects they cover into stark relief; many content creators have landed in legal jeopardy as a result of coverage that has later been deemed biased or sensationalised, though this tends to come too late for those who have been targeted as a result.
The significance of the issue is such that Ashurst has issued a set of guidelines for aspiring true crime series creators, laying out the potential legal ramifications of speculating on real-world events. “Producers must therefore carefully balance the legal risks of publishing the material with the value of telling the story”, the guide suggests.
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We at Lawyer Monthly would echo the advice. Today, we enjoy ease of access to information unlike any other period in history, but this information is often incomplete or lacking essential context. It is the responsibility of true crime content creators to present their stories with as much integrity as possible, elevating their platform above easy muckraking and urging their audiences to act with similar caution. As more amateur podcasts begin to take on this professional outlook, we hope to see a shift towards greater accountability in the true crime space – and, potentially, a raising of standards for online behaviour that places greater focus on the rights of victims.
You have the right to be compensated for your losses and damages. A car accident lawyer will ensure that you are properly compensated for your injuries and that justice is served. Here is 2023’s auto accident lawsuit guide for Maryland drivers.
Firstly, what you do after a car accident in Maryland will be imperative for your case because this is when you should gather evidence and seek medical attention. When the accident occurs, stop your car and move it out of the way to not block the traffic if possible.
Check your injuries and if you can move without hurting yourself, see if the other passengers and drivers are ok. Call an ambulance or tell someone else to do it if you cannot move. If you can move and might help others, do so while speaking with an emergency operator on the phone so that they can guide you.
In some instances, moving someone might do more harm than good. Call the authorities even if the accident was minor. When the police arrive, they will secure the scene, but you should start writing down the contact information of eyewitnesses, including the ones that just arrived on the scene.
Don’t forget to write down the other driver’s contact information and plate numbers. Scan the area to see if there are surveillance cameras present. This might help you later as evidence, but remember that recordings are often erased, so you should act on this as soon as possible.
Take photos of the accident scene, your injuries, and the damage on both vehicles. When paramedics arrive, let them check you out. You might not feel some injuries due to your adrenaline rush, and the medics' report will also serve your case later.
Contact your insurance company to report the collision and then contact a personal injury lawyer for a consultation. Let the lawyer know every detail about your accident, including photos, medical reports, and witnesses, and don’t forget to mention the presence of surveillance cameras, if any were present.
Your lawyer will begin their investigation and gather police reports, and medical reports, talk to witnesses, prepare them, or even collaborate with accident reconstruction experts to build you a strong case.
It’s essential to let your lawyer know about your hardships while you recuperate, including any out-of-pocket expenses, lost wages, pain, and suffering. Communication is crucial because it will let your lawyer know what economic and non-economic damages they will try to win for you.
You won’t receive compensation only for your injuries, medical expenses, property damage, or lost wages. You will receive compensation for your non-economic damages as well, such as pain and suffering, PTSD, emotional anguish, loss of consortium, and more, depending on how your case is built and the circumstances revolving around it.
Your personal injury lawyer will negotiate with the at-fault party or insurance company to get you the highest compensation possible. If negotiations cannot be settled outside court, you can give the green light to your lawyer to initiate a lawsuit. You can pursue compensation by filing a claim against the at-fault driver, their insurance company, or your insurance policy if the other party isn’t insured and you want to pursue an uninsured motorist claim.
Probably the most important thing in car accident claims in Maryland is proving fault. Now that may sound logical, but you have to consider that you can be rewarded for your damages in some states even if you share the blame.
Yet, this is not the case in Maryland. Due to Maryland’s contributory negligence system, you can be denied compensation even if you are 1% at fault for the accident. This is why working with a skilled lawyer is essential.
To prove fault, you need to showcase that the other party owed you a duty of care, which all drivers must do, breached that duty, what was the cause for that breach, the fact that you sustained injuries from it, and that you suffered further damages because of it. If you want to know more, contact a car accident attorney in Maryland for a consultation and decide which course to take and against whom you should file a claim.
