Understand Your Rights. Solve Your Legal Problems
In an unanimous opinion on Tuesday, the 5th US Circuit Court of Appeals said that, when the FDA denied Triton Distribution’s application to sell its flavoured e-cigarettes, the agency did not give sufficient consideration to Triton’s marketing plan to reduce the product’s appeal to young people.
The court said the FDA pulled a “surprise switcheroo” from previous guidance that stated manufacturers would not need longer-term studies to support e-cigarette applications. The FDA declined to approve approximately 55,000 other e-cigarette products earlier this year, after requiring manufacturers to apply their existing products for approval under a 2016 rule which deemed them subject to the same regulations as tobacco products.
Initially, the FDA said it did not expect companies would need long-term studies to support their application. However, in August, the agency announced it would deny the first batch of applications and said manufacturers would likely need studies that followed a cohort of people over time to demonstrate that their product’s role in helping smokers quit cigarettes outweighed the risks to young people.
Triton and several other companies challenged the FDA’s decision, arguing it relied on earlier guidance in its application.
Constructive dismissal is widely defined as “a situation in the workplace, which has been created by the employer, and which renders the continuation of the employment relationship intolerable for the employee – to such an extent that the employee has no other option available but to resign.” It is therefore clear from the definition that constructive dismissal is never voluntarily or willingly, an employee who resigns for other reasons cannot claim constructive dismissal. In such cases, the onus is on the employee to prove that he/she had no other option but to resign as there was no other way of resolving the matter. While some argue that there are grey areas and subjectivity in such matters, it is possible to prove constructive dismissal. Although these conditions may vary slightly in various parts of the world, the basis remains the same. Some examples of constructive dismissal may be; bullying or discrimination against an employee, disregard for an employee’s concerns or grievances and making unreasonable changes to working patterns or the place of work without prior agreement. Of course, many other examples of constructive dismissal exist, as the context and elements in each case do differ.
To improve your chances of winning a constructive dismissal case, you must be able to show that:
One of the major concerns in the case of constructive dismissal, especially from the employee’s side and having to make a living, is the financial aspect. While those that are fortunate enough to have some knowledge about forex markets can dabble in that in the interim, the harsh reality of having to make ends meet while searching for a new job exists. This is also why some people have been turning to forex or stock trading as an alternative source of income or investment option. Given the current global conditions and the higher unemployment rate in most parts of the world, finding a new job can take some time. It is mostly for this reason that if an employee does win the case and the situation is confirmed as a case of constructive dismissal by law, then the employer will have to financially compensate the employee. As previously noted, it is important to check which regulations apply in your country, as these may differ across the globe. In some cases, an employer may be obligated to financially compensate the employee by paying them a salary for three months post-employment. In other cases, the employer may have to pay the employee out and cover the remaining month of the contract. For example, if the employee was under a 2-year contract and the constructive dismissal claim was made 18 months into the term, then the employer would have to pay him/her out for the remaining 6 months of the contract agreement.
The app, launched Monday 25 October, has been developed entirely in-house by the firm’s graduate recruitment and lawtech teams. All tasks on the app have been modelled on real work and have been created by the Macfarlanes’ solicitors and trainee solicitors. Users of the app can experience work from the firm’s corporate and M&A, finance, litigation and private client teams. Information about Macfarlane’s culture, training programme application process, and vacation scheme can also be found within the app.
Commenting on the launch of the trainee experience app, training principal Jat Bains said, “Given the superb effort across the firm to create bespoke tasks for our virtual vacation schemes, and the concerns that many of us have around the negative impact of lockdowns upon access to the legal profession, I am pleased that we can give anyone who wants it a sense for what the job might entail and how a lawyer has to think.
“It’s fantastic that, through the use of technology, firms can open the gates to the ‘playing field’ wide open and allow people from all backgrounds to have the chance to see at least some of what those who gain a place on a vacation scheme can experience. We are hopeful that this approach will better prepare candidates for success when applying for a training contract at the firm of their choice.”
On Monday, the Justice Department said that Navistar illegally used heavy-duty diesel engines which were not authorised by the Environmental Protection Agency emissions rules.
The United States filed a lawsuit against Navistar in 2015 over the engines, with the Justice Department ruling that the company must now purchase and destroy enough older diesel engines to prevent 10,000 tons of future NOx emissions. Navistar must also forfeit its current NOx credits. The Justice Department claimed that, after lower emissions standards came into effect in 2010, Navistar utilised 7,749 diesel engines that did not meet the lower emission standards.
Navistar said it has signed a “definitive settlement agreement” with the Justice Department and the EPA. In a statement, the company said, “Navistar is pleased to put this legacy issue behind us and eager to focus on transportation solutions for the future.”
Sally Sanderson, a multi-award-winning consultant to law firms, shares her thoughts on why it is so challenging to lead in law firms.
I have worked with 1000s of lawyers over the past twenty-five years and am always impressed by their drive to deliver for clients, their expertise, objectivity and intellect. So why do many lawyers, when they become senior, find it so challenging to lead a team of bright, motivated professionals? Everyone will have come across partners who are inspiring and effective leaders, but they are rare. Sometimes when I sit with HR Directors to identify role models in their firm, they struggle to name more than a handful.
Many partners tell me leading teams is the bit of the job they find most challenging, the least rewarding and during the pandemic many complained of the stress of having to spend time looking after their teams. Time they didn’t have.
Leading in law firms is indeed challenging because time is such a premium and the culture is clients first. However, it is also because lawyers are trained to be objective and to distrust some of the ‘fuzzy’ stuff that would help them lead, inspire, manage different personalities and deal with difficult conversations. In their daily life lawyers react, analyse, solve, advise and move on to the next matter. This objectivity and pace are at the expense of what helps us to lead. The more our brain builds our ability to analyse and synthesise facts, the less we use the neurons that enable us to empathise, to read others and adjust our conversation. Eventually, after years, those neural pathways get harder and harder to use or even die away.
By the time a lawyer starts to lead in a law firm that process has taken its toll. They are experts in their field but find that leadership is tricky and time-consuming, that people's issues are messy and that logic doesn’t always win the day. Leadership, for many, proves far less satisfying than working with clients and so quickly slips down the to-do list. Conversations get squeezed or avoided.
At the same time, millennial lawyers are arguably ever more demanding of their bosses – wanting good quality work, to be inspired, to be given helpful feedback and to be coached so they can progress quickly. They are looking for positive role models and if they don’t see them, they move.
The legal profession needs to address this challenge. So, what can we do about it? First, we need to recognise the importance of leadership in law firms – from senior associates upwards. Law is an academic profession but it is also a people business, and if you don’t invest in supervising, managing and leading, you cannot deliver good quality work for clients at a price they want to pay and you cannot make your firm competitive or an attractive place for talent. We need to reward lawyers when they lead well and tackle partners who display poor or damaging leadership behaviours – even if they are one of the highest billing partners in the firm.
We also need to provide the right leadership development opportunities. A one-hour session on leadership for a new partner does not cut it. It might be a start, but that is all. Week-long leadership development programmes are the norm for other sectors and such programmes build on the supervision and management skills developed and honed throughout a career. In the legal sector we settle for something shorter and hope that because they are bright they will pick it up – yet we don’t give them time to practise and embed the practices which are soon lost when they return to their desk and clients. This is grossly unfair on new leaders and their teams.
Self-awareness is a foundation for leadership and so lawyers also need the opportunity to develop insight into their own personalities and the impact of their behaviours on others. In my coaching work, I noticed that leaders in law firms often miss out key bits of a leadership conversation and that this was linked to their personality. They prioritised some things they need to say to direct, inspire and keep things on track, but missed out others. It was over several years of listening to and coaching partners that I developed the ABCDE model in my book ‘Leading Lawyers’. Leaders I have coached have used it to have better conversations with their teams about their deals and cases and with individuals about their performance. It doesn’t cover everything leaders need to know and do, but it’s a practical toolkit for time-poor leaders.
About the author: For over 25 years, Sally Sanderson has developed and coached lawyers using personality profiling to increase self-awareness and speed up behavioural change. She specialises in leadership, emerging leaders, people and project management. Her clients include global firms and niche practices. Her book ‘Leading Lawyers’ will be published on 16 November at £19.99: https://www.amazon.co.uk/Leading-Lawyers-practical-toolkit-leadership-ebook/dp/B09GW9N14N/
Or, for readers outside the UK: https://www.amazon.co.uk/Leading-Lawyers-practical-toolkit-leadership-ebook/dp/B09GW9N14N/
Matt Hutchins joined Latham & Watkins this year as an associate, having previously worked as an in-house lawyer at an entertainment company and practised at Kirkland & Ellis and Skadden.
Turning to Twitter on Friday, Matt Hutchins wrote, “Halyna inspired us all with her passion and vision, and her legacy is too meaningful to encapsulate in words. Our loss is enormous.”
Halyna Hutchins, 42, was killed when Baldwin discharged a prop firearm on the set of the upcoming Western film “Rust” in New Mexico. The film’s director, Joel Souza, was also injured. The Santa Fe Sheriff's Department has said it is investigating the incident.
On Friday, Baldwin posted on social media saying that he was in shock. He said, "My heart is broken for her husband, their son, and all who knew and loved Halyna."
Halyna Hutchins grew up on a Soviet military base in the Arctic Circle and once worked as an investigative reporter in Europe. She graduated from the American Film Institute in 2015 and, in 2019, was named as one of American Cinematographers’ Rising Stars.
Alistair Craig, Managing Director at Anabas, explores how the legal sector should manage the return to the office post-pandemic.
Since the start of September, there’s been a slow but steady influx of people back into London’s law firms. But while the corridors of legal practices are starting to buzz again, full occupancy won’t happen until early 2022 in the majority of cases. And the jury is still out as to what the long-term future looks like for office v home working. Some of the legal firms we support are planning full-time office working, while others are exploring a more hybrid approach with lawyers working from home anything from 20-50% of the time.
While there may be some reticence from both firms and individuals to return to the office full-time, there’s been no such hesitation about holding client events. In September alone, our legal firms were hosting daily client events, using the easing of Covid restrictions combined with the new academic term to entice clients back to their offices for meetings, lunches, seminars and parties. The lack of face-to-face client meetings and events has undoubtedly driven a reduction in client spending over the past 18 months and these events are seen as crucial to rebuild client relationships which have become less relationship-driven and more transactional.
That understandable drive to use the workplace to entertain clients could be a nod to the future use of the space for colleagues. The recent PwC 2021 Law Firms Survey reported that three in four law firms expect to reconfigure their office space as priorities change towards collaborative, team-friendly spaces that encourage relationship building, client interaction and coaching/learning. But how can law firms navigate this return to the office for both colleagues and clients while keeping morale and productivity high, and client loyalty strong?
The key is to listen to what people want from their working environment. Some will be desperate to get back and escape busy homes, while others will be reluctant to start commuting and work alongside others again, risking distractions. Anonymous colleague surveys combined with working groups and one-to-ones will give firms an idea of what their people want. This means they can create a working pattern that supports both colleague productivity and fee earning potential but also their work/life balance and therefore recruitment and retention. Offering a level of flexibility makes good business sense at a time of a talent shortage in the industry. It’s also important to understand how people are using the environment currently – as the reality is often different from what people say. Desk sensors can provide a picture of how the workplace is currently used. This data can then inform the level of workplace support available. There’s little point in having a full catering or cleaning team on hand on a sparsely populated day.
Whichever model firms adopt, what’s key is to provide a variety of working areas. While the PWC survey referred to creating more collaborative working environments – from break-out spaces to project areas – practices shouldn’t ignore the large numbers of people who come to work to perform concentrated work. Quiet spaces – whether cellular offices, enclosed pods or library-style environments – where people can work uninterrupted need to be built into the post-Covid environment.
Client events are back in full swing, but not all clients will want to come to an office. Health concerns, travel restrictions and a change in business travel culture will see some client meetings continue to take place virtually. Lawyers need to have plenty of spaces where they can effectively run virtual meetings from small teleconference pods to sophisticated board rooms with video conferencing embedded. We’re seeing a new type of video meeting room, away from windows which can create problems with natural light on camera, and with enhanced acoustic technology making a virtual meeting as seamless as an in-person one. This type of technology will require investment but the PWC report showed that IT investment is high up the list for the legal sector. With the focus more on cloud solutions, law firms shouldn’t forget workplace technology.
High standards of facilities services have always been key in law firms – fee earners don’t want to spend time on the phone to a help desk to resolve a workplace or IT issue. But that’s even more crucial in a post-Covid environment. The workplace needs to be frictionless or people will vote with their feet and stay at home. By investing in concierge-style services such as the Anabas floor captain role, clients, partners and staff alike have a ‘go-to’ person for any issue or query. Being on hand to help set up client meetings and manage internal and external posts, we find that our clients in the legal sector who introduce the floor captain role avoid unnecessary issues and are at their most productive.
Legal practices need to give people a reason to come to the office. They need to create a fear of missing out. For younger lawyers, that might mean the opportunity to meet, and learn from, senior partners. For senior people, it’s the chance to meet clients and young talent. By creating opportunities for colleagues to come together in a way that’s not possible virtually – through town halls, training, celebrations, chance meetings in the corridors – law firms can give people a reason to come to the office. Senior partners need to lead by example. If they’re seen to be in the office more, then the rest of the firm will follow suit.
The PWC report showed that almost half of law firms expect to reduce their office footprint in the short to medium term. There has always been plenty of churn in law firms – particularly with trainees on rotations moving from department to department – and that’s only likely to increase. Covid has given the legal profession, often seen as a traditional office environment, the chance to rethink the office. Let’s use this opportunity to rightsize the legal workplace for today’s lawyers.
Last week, over 10,000 Deere & Co workers went on strike in what marks the first major walkout at the company in more than three decades. The overwhelming majority of the union rejected a contract offer that would have delivered raises of 5% to some workers and 6% to others.
Several workers began forming a picket line outside the company’s Milan plant in Western Illinois 15 minutes after the strike deadline. Workers also began picketing at several other Deere & Co plants, including the company’s largest operation in Waterloo, Iowa.
Marlita Grave, Chief District Judge of Iowa's Seventh Judicial District, called the union workers’ activities “unwarranted, impermissible and unlawful.”
The injunction does not entirely forbid the strike, but the judge has limited the number of picketers to no more than four at each of the facility’s gates. In a statement, Deere & Co says that the injunction was put in place to ensure safe entry and exit to the facility.
Class action lawsuits allow a group of victims who have suffered similar injuries due to the same party’s actions to come together and collectively take legal action. This type of case often helps victims to hold a company accountable when doing so single-handedly would be near-impossible.
In some instances, class members are only identified after the settlement or court award has been granted. Some class members may also reach their own settlements during litigation of the case, though a judge must approve all settlements and distribution plans in a class action in order to protect class members. This is the case even if the company in question and the victims agree to settle.
While most class action lawsuits and settlements don’t reach the billions, others do. Class action suits of this size generate huge public interest, particularly when big names are involved. So, including BP and Volkswagen, here are four of the largest class action lawsuits and settlements of past decades.
In 1998, Philip Morris, RJ Reynolds, and two other tobacco companies agreed to change the way they marketed tobacco products and pay 46 states of the US an estimated $206 billion to cover the medical costs of smoking-related illnesses. The funds from the settlement helped to establish a new anti-smoking advocacy group called the Truth Initiative, responsible for anti-smoking campaigns such as Truth.
In addition to agreeing to finance a $1.5 billion anti-smoking campaign, the companies involved also agreed to reveal industry documents that had previously been kept secret and disband industry trade groups that were accused of conspiring to conceal damaging research from the public eye. The Tobacco Master settlement dissolved the tobacco industry groups Tobacco Institute, the Council for Tobacco Research, and the Center for Indoor Air Research.
In April 2010, the oil drilling rig Deepwater Horizon, which was operating in the Macondo Prospect in the Gulf of Mexico, exploded and sank, claiming the lives of 11 workers and becoming the largest oil spill in the history of marine oil drilling operations. Until the Macondo well was finally capped in July 2010, 4 million barrels of oil seeped into the ocean.
In December 2010, the United States filed a complaint in District Court against BP Exploration & Production as well as several other defendants who the US believed to be responsible for the spill.
In 2016, a New Orleans federal judge granted final approval to an estimated $20 billion settlement which resolved civil claims over environmental damage from the spill. Approximately $5 - $6 billion of the funds provided payments to state and local governments, while the vast majority of the funds covered federal claims and penalties. However, some critics condemned the settlement for allowing BP to claim $15 billion of the settlement cost as a tax write off.
In 2015, the Environment Protection Agency (EPA) found that many US-sold Volkswagen vehicles —and roughly 10.5 million more worldwide— had a “defeat device” or emissions software installed into their diesel engines. The software was essentially capable of detecting when the vehicle was being tested and altered its performance accordingly to improve the results.
Volkswagen has since admitted to cheating emissions tests in the US. Delivering a speech at the unveiling of the VW Passat, CEO of Volkswagen USA, Michael Horn, said: “So let’s be clear about this: Our company was dishonest with the EPA and the California Air Resources Board, and with all of you. And in my German words, we’ve totally screwed up. We must fix those cars and prevent this from ever happening again, and we have to make things right—with the government, the public, our customers, our employees, and also very importantly our dealers.”
In 2016, a federal judge in San Francisco approved a whopping $14.7 billion settlement resulting from the “defeat device”. The settlement provided funds for vehicle buybacks at market values prior to the scandal as well as additional cash payments for 475,000 diesel car owners.
The Enron scandal was one of the largest securities fraud scandals in history, surfacing in October 2001 when it was revealed that America’s then-seventh-largest company was involved in corporate corruption and accounting fraud. The scandal surrounding the energy company included political implications because of Enron’s close links with the White House. The deregulation of the company enabled it to operate largely free from government scrutiny.
Eventually, the scandal led to the bankruptcy of the company as well as the dissolution of the auditing company Arthur Andersen. Enron’s shareholders saw losses of $74 million and its employees lost jobs and billions in pension benefits.
In 2008, a federal judge in Houston approved a $7.2 billion settlement resolving claims that the energy trading company Enron defrauded shareholders prior to declaring bankruptcy. JP Morgan Chase, the Canadian Imperial Bank of Commerce, and Citigroup collectively provided over 90% of the settlement funds. The settlement included a $2 billion deal between Citigroup and the University of California, the lead plaintiff that represented Enron investors. Enron’s CEO, Jeff Skilling, was initially sentenced to 24 years in prison, though was released after just 12. Former CEO and Kenneth Lay died of a heart attack before serving time.
Considering how lawsuits from trucking accidents can cost you millions of dollars, you must take it seriously. Take the proper measures to protect your company ahead of time. Due to the nature of the work, you may not be able to avoid accidents, but you can reduce the cost of them.
Your lawyer can fight a trucking accident lawsuit with proper evidence. They can use a variety of sources to show evidence to the courts. Keep in mind, you must build the case immediately because most of the evidence available will vanish after several weeks. You must take action immediately because it can save you from higher costs down the road. Lowering liability often comes from the ELD device.
Truckers must be complying with all mandates, and a failure to comply could leave you open to litigation. For that reason, you should emphasise to your truckers how no one violates the HoS. Another example of evidence that a trucking company can use is cell phone records. You can use text messages, GPS data and emails to show that you were within your rights. For example, you can use the information to show how you were where you said you were at that time in the logbook.
Especially if you were in an accident with another driver, they may fight you in whatever way that they can find. Having receipts to show your lodging, gas and food will give validity to your logs. At the same time, it could prove your logbook false, which could land your company in legal trouble. Your lawyer will gather evidence of weigh station records and booth tickets. This will show the accuracy of your logs.
You may be able to show how your truck was getting maintenance or repairs at a specific time. Having a lawyer will show how you took a sufficient amount of time to make the repairs on your truck. This action can reduce your level of liability. Once you have proven that you keep an accurate logbook, the other party will have a harder time going after you. At the least, it can help to reduce the amount of liability that your company has a duty to pay for.
Rather than fighting a case in a rural county, you can try to have the case moved to the jurisdiction where you are headquartered. Especially in cases where you feel belittled or devalued, you may find it advantageous to either move the case out of the county or even take it to the state of your headquarters. One of the big problems with how juries are selected is the location and requesting a relocation can help combat this. This does take more work, but it can change the tide to give you a more favourable result.
Also, be aware of how you must choose the right lawyer for this action. They should have a thorough knowledge of how to do this correctly. Due to the size of the truck, trucking accidents are some of the most horrific, and they often lead to a fatality. Because of that, they have a higher risk of facing lawsuits, and you need to know how to protect yourself.
