Understand Your Rights. Solve Your Legal Problems
Hasna Haidar, Senior Copywriter at Bolt Burdon Kemp, explores issues of equality, diversity and inclusion in law, and offers her advice on how firms can improve.
While ‘diversity and inclusion’ can seem like recent buzzwords, anti-discrimination in the workplace has been enshrined in law since 2010’s Equality Act. And yet, companies – including law firms – are still struggling to create a truly inclusive and diverse workforce. For example, a recent report into diversity in the legal industry by Bolt Burdon Kemp found that only 29% of partner roles in large firms are held by women – despite women making up 47% of the workforce.
Further findings in the report demonstrate that the legal industry is falling short in equality when it comes to three other key demographics:
How does your firm stack up in these metrics? Whether you do better or worse than the average, it’s important to keep striving for better. After all, an inclusive legal workforce would be able to serve their community better, being able to understand and appreciate the experiences of a broad range of individuals. Thus, with the new year fast approaching, you may want to incorporate some diversity and inclusion goals into your wider company aims. Here are a few things to think about as you get started:
Whether you do better or worse than the average, it’s important to keep striving for better.
As part of your company plan for next year, decide a few realistic targets you’d like to meet by a reasonable deadline. Evaluate the past and current demographic makeup of your workforce, and figure out which area you would like to – and can – improve on. For example, you may want to increase the percentage of ethnic minorities in your firm to 15%, and LGBTQ+ to 4% within the next 3-5 years. Once you’ve set a goal, make sure you’ve set up the right recruitment practices and cultural efforts necessary to see it come to fruition.
To that end, you may want to hire an expert who you can consult on the right approaches to take. A diversity and inclusion expert can guide you on the best way to tackle any internal or cultural roadblocks you may have, as well as advise you on how to approach certain subjects in a sensitive way. For example, they can conduct a diversity hiring audit on your current practices, and teach you how to reduce unconscious bias, how to deal with staff who may be resistant to change, and how to make reasonable adjustments for disabled employees.
Reaching equality means prioritising accountability, transparency and inclusion. Leadership teams will need to take responsibility for any former or current failings that might be relevant to the improvements you’re trying to make. Take ownership of and be open about your mistakes to show your intentions are genuine, and get better buy-in from your staff. You may want to report publicly on your successes – or even lack thereof – at the end of your efforts, so you’re always holding yourself and your company to account.
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However you approach your journey to a more diverse and inclusive workforce, remember to keep lines of communication open – particularly to the demographics you may have neglected in the past. After all, in order to be truly inclusive, you need to listen and take on board any grievances and concerns they might have. By learning from them, speaking to the right experts and setting clear goals to hold yourself accountable, you can take the necessary steps to ensure your firm is one that is balanced, productive, thriving and welcoming to all.
The Ninth Circuit Court of Appeals on Monday rejected the Trump administration’s conditional approval for the first offshore oil-drilling project in federal Arctic waters off Alaska, ruling that it violated environmental requirements when it issued approval in 2018.
Hilcorp Alaska was approved to build and operate the Liberty project, a nine-acre artificial drilling island and underwater pipeline that caused controversy for its potential to create oil spills in the Beaufort sea, threatening polar bears and Arctic communities.
A three-judge panel found that the Bureau of Ocean Management “acted arbitrarily and capriciously by failing to quantify the emissions resulting from foreign oil consumption”. The panel also found that the Bureau had not bothered to estimate the number of polar bears that might be harmed by the project before granting permits, instead relying on a “flawed and unlawful” biological opinion from the US Fish and Wildlife Service.
The suit was brought by the Center for Biological Diversity, Defenders of Wildlife, Friends of the Earth, Greenpeace and Pacific Environment, all represented by Earthjustice. Kristen Monsell, oceans legal director at the Center for Biological Diversity, hailed Monday’s decision as “a huge victory for polar bears and our climate”.
“This project was a disaster waiting to happen that should never have been approved,” Monsell said. “I’m thrilled the court saw through the Trump administration’s attempt to push this project through without carefully studying its risks.”
Kara Moriarty, head of the Alaska Oil and Gas Association in which Hilcorp is a member organisation, said the decision was “disappointing”.
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“(The project) will have to go back to BOEM to be reworked, adding delay and uncertainty, at a time when Alaska could use as many projects on the books as possible to get us back to some type of economic recovery,” she said.
Moriarty also said that, should the project not be taken up by the incoming Biden administration, the oil industry could sue for its advancement. Biden promised during his campaign that he would halt new oil and gas permits on federal lands, beginning from his first day in office.
Claire Lehr, Partner at EIP, examines the F1 racer's legal battle and what it demonstrates about IP law in Europe.
It was announced last month that Lewis Hamilton had lost his three-year trademark battle with Hamilton International AG, the Swiss watchmakers. The Formula One driver’s intellectual property firm 44IP Limited had claimed that Hamilton International registered the name HAMILTON in bad faith and to prevent competition. These claims were dismissed by the Board of Appeal at the EUIPO, which concluded Lewis Hamilton had no “natural right” to protect his “common” surname. The case raised a number of interesting points.
The HAMILTON case contrasts with Lionel Messi’s nine-year trademark battle for his surname, MESSI. Unlike in the Hamilton case, the European Court of Justice held Messi could register his surname for, inter alia, sportswear. This upheld a 2018 decision by the General Court, which ruled that Messi’s reputation as “a well-known public figure who can be seen on television and who is regularly discussed on television or on the radio”.
There is no doubt that Lewis Hamilton also falls in to the “well-known public figure” category. But generally, the footballer is referred to as Messi, not Lionel Messi, whereas the racing driver is better known by his full name, Lewis Hamilton, not Hamilton.
Would it have made a difference in the present case? It’s possible, but unlikely, since crucial to the case was that Hamilton International had been using the mark HAMILTON on watches since 1892, decades before the birth of the racing driver, which was pointed out by its legal team.
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Hamilton International opposed the EU trade mark application for LEWIS HAMILTON filed by 44IP in Classes 14 and 35. As part of an ill-fated strategy to obtain leverage and overcome the opposition, 44IP filed invalidation proceedings in 2018 against Hamilton International’s earlier EU right for HAMILTON, claiming, amongst other things, that the mark had been filed in bad faith. This was dismissed at first instance and upheld by the Board of Appeal, which noted that the bad faith claim had “no factual basis from the outset”.
The Board of Appeal also commented that Hamilton International’s expansion into other categories was “legitimate and completely within normal marketing strategy” for a portfolio to be updated. The strategy had been questioned by 44IP. The Board of Appeal pointed out it was not up to third parties to comment on others’ marketing strategies.
In terms of next steps, it is open to 44IP to appeal the decision at the General Court. But is it likely to do so? It would seem unlikely. The Board of Appeal has held that Lewis Hamilton’s surname is not instantly recognisable, stating that it is “rather common surname” in English speaking territories and that no individual has a “natural right” to have their name registered if it infringes others’ rights. If 44IP wants to brand goods in Class 14 with LEWIS HAMILTON, it may want to consider the Class 14 goods from a 2006 (expired) registration for LEWIS HAMILTON, being “ornamental motor vehicles and safety helmets made from precious metals and their alloys or coated therewith” – a specification “on track” with Formula One.
On Monday, the Supreme Court of the United States will hear oral arguments in a 12-year legal dispute over a collection of medieval art sold by Jewish art dealers to the Nazis in 1935 in a case that legal professionals say will have far-reaching consequences for international restitution battles and their ability to be heard in US courts.
The plaintiffs in the case are descendants of two of the four Jewish dealers who bought the 42-artefact Guelph Treasure in 1929 for 7.5 million Reichsmark. The plaintiffs claim that the consortium was coerced into selling the artefacts five years later at a reduced price of 4.25 million Reichsmark as part of the Nazi campaign to strip Germany’s Jewish population of their possessions.
They now demand the return of the treasure, which they value at around $260 million.
The oral arguments will concern whether the plaintiffs can sue in US courts to retrieve the artefacts from the Prussian Cultural Heritage Foundation, which technically owns the Guelph Treasure. The Foundation says that it must adhere to US government principles on art confiscated by the Nazis, under which it has restituted over 2,000 books and 350 pieces of art since 1998. However, it holds that the 1935 sale of the Guelph Treasure to the German state was the result of tough but lawful negotiations.
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“The key question we ask is whether a work in our collection was withdrawn from its previous owner as a result of persecution,” said Hermann Parzinger, president of the Prussian Cultural Heritage Foundation, in a statement to the Guardian. In the case of the Guelph Treasure, he said: “Neither was the sale forced, nor was the sale price unfair.”
The Foundation appealed the case to the SCOTUS after two lower courts found in favour of the plaintiffs. Some legal observers expect that the court will rule that the case is a matter for the German judiciary – and if it does not, that many more international disputes could be tried before US courts in future.
“It would let foreigners use US courts to sue their own nations for alleged human rights or law-of-war violations that happened in those foreign countries,” suggested Jonathan Freiman of the Prussian Cultural Heritage Foundation.
The US Department of Justice (DOJ) filed suit against Facebook on Thursday, accusing the social media giant of illegally discriminating against US workers by giving preference to temporary workers in its hiring process.
In its filing, the DOJ claimed that Facebook had “refused to recruit, consider, or hire qualified and available US workers for over 2,600 positions”, some of which paid an average salary of $156,000 per year.
Facebook instead opted to fill vacant positions with temporary visa holders, such as those with H-1B visas that the company wanted to sponsor for green cards or permanent residency, the DOJ claimed, adding that Facebook had “intentionally created a hiring system” that denied qualified US workers the chance to discover and apply for jobs.
“Facebook has been cooperating with the DOJ in its review of this issue and while we dispute the allegations in the complaint, we cannot comment further on pending litigation,” a spokesperson for the company said in a statement.
The lawsuit marks the latest in a series of clashes between the Trump administration and Silicon Valley regarding the immigration of foreign workers. The justice and labour departments have previously investigated tech firms over allegations similar to those now made against Facebook, but have rarely brought charges.
Amazon, Microsoft, Google, Walmart, Apple and Facebook all rank among the top 30 H-1B employers in the country, according to a report from the Economic Policy Institute in May.
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The administration has also put pressure on tech firms over their alleged monopolistic practices. The DOJ filed a historic antitrust suit against Google in October, claiming that the company had used its influence to maintain an effective monopoly over search engines and search engine advertising.
The US subsidiary of Dutch energy and commodities trading company Vitol Group has agreed to pay $163 million to resolve probes by the US and Brazilian governments into allegations that it paid bribes to further its oil trading business.
The firm agreed to enter a three-year deferred prosecution agreement with the US and a related deal with the Brazilian government, under which it admitted guilt and agreed to make improvements to its internal reporting and compliance functions.
Vitol will pay the Department of Justice (DOJ) a $135 million criminal penalty to resolve the probes, with Brazilian authorities to receive $45 million from this sum. Vitol will also return $12.7 million in ill-gotten gains to the Commodity Futures Trading Commission (CFTC), along with $16 million in fines.
"We understand the seriousness of this matter and are pleased it has been resolved,” Vitol CEO Russell Hardy said in a statement, adding that the company had cooperated extensively throughout the process. “We will continue to enhance our procedures and controls in line with best practice.”
Prosecutors alleged that Vitol had paid bribes to government officials in Brazil, Ecuador and Mexico in order to win lucrative business contracts and gain other competitive advantages. Prosecutors also claimed that Vitol had paid over $13 million in bribes to staff of Petróleo Brasileiro – the Brazilian state-owned petroleum company more widely known as Petrobras – in return for market intelligence, including confidential pricing information, internal forecasts and details on bids that the company had received from Vitol’s competitors.
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Vitol paid bribes to at least four Petrobras officials between 2005 and 2014, according to the DOJ, using shell companies and code names like “Batman”, “Dolphin” and “Tiger” to communicate with its co-conspirators.
Brian Rabbitt, Assistant Attorney General of the DOJ’s Criminal Division, said in a statement that the coordinated resolution with Brazil “underscores the department’s resolve to hold companies accountable for their crimes while, at the same time, avoiding unnecessarily duplicative penalties.”
Vitol is the world’s largest independent oil trader, shipping around 8 million barrels of oil per day.
The National Labor Relations Board (NLRB) filed a complaint on Wednesday accusing Google of unlawfully monitoring and questioning employees who were then improperly terminated for protesting against company policies and attempting to organise a union.
The suit focuses on the firing of Laurence Berland and Kathryn Spiers, who the complaint alleges were terminated for accessing documents related to how the company polices internal forums. The regulator also said that it had found unlawful Google policies related to accessing meeting rooms and documents as well as tactics for investigating employees. The complaint alleged that all of these efforts were intended to deter workers from organising.
Google said that it had acted legally, and that the workers in question had breached information security rules.
“Google has always worked to support a culture of internal discussion, and we place immense trust in our employees,” the company said. “Actions undertaken by the employees at issue were a serious violation of our policies and an unacceptable breach of a trusted responsibility.”
Berland and Spiers were two among five Google employees fired after leading efforts to organise workers at the company, according to the NLRB. The terminations capped two years of conflict between Google and its employees in the US regarding how much input lower-level employees have over projects that the company takes on, its policies for handling sexual misconduct and other workplace disputes.
Berland described the regulator’s complaint as a significant step “at a time when we’re seeing the power of a handful of tech billionaires consolidate control over our lives and our society.”
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Google has until 16 December to formally respond to the NLRB’s suit. If successful, the case could lead to the reinstatement of several fired Google employees and changes to the company’s policies.
The case is scheduled to be tried before an administrative law judge on 12 April.
Burges Salmon is the latest UK law firm to repay the funds it received under the government’s furlough scheme.
The Bristol-headquartered firm furloughed 42 employees in April when the Coronavirus Job Retention Scheme (CJRS) came into effect. Service team roles including front-of-house staff, personal assistants and travel coordinators were affected.
However, the organisation performed better than expected in the months that followed and was not forced to make any permanent redundancies or salary cuts, and subsequently returned all employees from furlough. It now plans to return in full the money it received to HMRC in December.
“Having undertaken a detailed financial review and forecasting exercise of the first six months of 2020, our firm is now in a stronger-than-anticipated position with a greater degree of confidence about the future,” said Roger Bull, managing partner at Burges Salmon.
“We are very grateful to have had access to the furlough scheme but as we are in a better position than we anticipated, we are pleased to be able to repay it.”
In October, Eversheds and Norton moved to repay COVID-19 relief funds to the government, as did Dentons – which also wound down its scheme allowing staff to work four days a week for reduced pay, with all returning to full five-day working weeks. Herbert Smith Freehills and Osborne Clarke wound down their own cost-saving measures and reimbursed the government for savings made through COVID-19 mitigation schemes.
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The global legal sector has begun to bounce back as dire forecasts made during the onset of the COVID-19 pandemic have largely failed to come to fruition. Major US and UK law firms are now beginning to expand their operations in preparation for 2021 and beyond.
Two Big Law firms announced the opening of new offices in Chicago on Tuesday, representing a significant growth of the city’s legal market.
Venable, an AmLaw 100 firm employing more than 730 lawyers, acquired a construction practice of 12 lawyers from Schiff Hardin. Six of these lawyers – three associates and three partners – are located in Chicago, while another six have joined Venable’s offices in New York and Washington, DC. The practice is well known and highly regarded for representing owners and government entities in large infrastructure projecs.
The office is located in the Franklin Center and is the 10th office Venable has opened.
Meanwhile, Detroit-based Dickinson Wright announced that it had acquired Chicago law firm Stahl Cowen Crowley Addis LLC, adding a further 12 attorneys to its existing staff of nearly 500 lawyers and gaining its 19th office. The terms of the deal were not disclosed.
“Dickinson Wright's entry into the major money market of Chicago is a natural progression of our national strategic approach," Dickinson Wright CEO Michael Hammer said in a statement. "We look forward to joining the Chicago business community while continuing to expand our offerings to our clients from around the US."
The new office will be led by Jeffrey Stahl, a partner at the Chicago firm. The office will handle real estate, employment, corporate, litigation and M&A in addition to restructuring and arbitration matters.
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The acquisitions come at the same time as a Tuesday report by Citi Private Bank and Hildebrandt Consulting which found that fears of crushing losses resulting from the COVID-19 pandemic were largely exaggerated.
Children under the age of 16 considering gender reassignment are “unlikely” to be able to give informed consent to be prescribed puberty-blocking drugs, three High Court judges have ruled.
The case was brought against Tavistock and Portman NHS Trust, which operates the UK’s main gender identity development service for children. The Trust said it was “disappointed”, but immediately suspended new referrals for puberty blockers and cross-sex hormones for under-16s, which in future will only be permitted when specifically authorised by a court.
"It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers,” Dame Victoria Sharp said in the ruling, sitting with Lord Justice Lewis and Mrs Justice Lieven. "It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers."
The judges added that young persons aged 16 and over were assumed to have the ability to consent to medical treatment.
The claim was brought by Keira Bell, a 23-year-old woman who began taking puberty blockers at 16 before “detransitioning”, and the unnamed mother of a 15-year-old girl with autism who is on the waiting list for treatment. Ms Bell said she was “delighted” by the judgement.
Dr Peter Dunne, Senior Lecturer at the University of Bristol Law School, said: “This is a very significant judgment, which has the potential to reshape the provision of gender affirming healthcare for young people in England and Wales. Although the High Court acknowledges that puberty blockers are appropriate for some trans and non-binary children, the judges expressed deep scepticism that minors under the age of 16 years could provide the necessary consent for treatment.
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“Taking a different position from courts in other commonwealth countries, today’s judgment is likely to reduce the number of children receiving care through the NHS. While some will celebrate the decision as a victory for child protection, others may ask whether child welfare is really served by creating additional obstacles to much-needed care.”
