Understand Your Rights. Solve Your Legal Problems
The former Arizona sheriff is petitioning the court to throw out his conviction.
The government must notify those wrongly blocked from entering the U.S. in January and help them reapply for visas; Rich Edson explains on 'Special Report'.
According to reports, councils in the UK have threatened to sanction those who overload their refuse bins or leave them out too early, under anti-social behaviour laws.
Sanctions for household families are said to be up to £2,500 fines and even criminal convictions. Fines for businesses, even small shops, can be up to £20,000.
Suspects would receive a letter warning them of potential offences, which is usually warranted for offences such as graffiti, vandalism, flytipping and noise.
According to the daily mail, such letters have already been distributed by authorities to suspects in Stoke on trent, UK.
Rubbish-related offences can range from leaving bins out before 5pm the day before collection to having an overflowing bin that doesn’t close.
Reports indicate some authorities have even instructed authorities to rummage through recycling bins in search of items that don’t qualify for recycling.
“It beggars belief that council workers think this is an acceptable way to treat taxpayers.
“One of the main services people expect from their councils is efficient bins collections, and they will be rightly shocked to see their money spent on threats of this nature,” said James Price, of the TaxPayers' Alliance, according to the Daily Mail.
With fewer collections and extreme scrutiny of people’s refuse, bin collecting is becoming quite a problem across the UK, and a solution is in order. Do you think fines and criminal convictions are fair in light of the fight to clear the streets of mess?
A partner at Sharpe Pritchard has said that a recent Supreme Court decision has “potentially significant ramifications” for construction contracts.
Justin Mendelle, head of Construction Law at the firm, said that the decision means parties entering into such contracts will need to exercise additional vigilance to understand the implications of multiple and sometimes seemingly conflicting obligations.
In MT Højgaard A/S v E.On Climate and Renewables UK Robin Rigg East Ltd and another [2017] UKSC 59, the Supreme Court, in a significant judgment for the construction industry, allowed EON's appeal and restored the first instance decision of Edwards-Stuart J in the Technology and Construction Court (TCC).
E.ON appointed MT Højgaard A/S (MTH) to design, build and install two offshore wind farms. Unfortunately, some of the turbines developed significant faults shortly after construction was completed and costly repairs were necessary.
This litigation concerned who should be liable for the costs of those repairs and involved a detailed examination of the documents and obligations that formed the contract between E.On and MTH.
The Supreme Court held that MTH was under a fitness for purpose-type obligation, which was contained in a technical schedule in the contract. This had the effect of a warranty that the turbine component would not fail within a certain timeframe. This was despite obligations on MTH elsewhere in the contract to exercise reasonable skill and care and comply with an international standard (J101) – which as it turned out, was erroneous and even if met, insufficient to ensure the standard in the technical document was achieved.
“The decision has potentially significant ramifications for all who enter into complex construction contracts, particularly those requiring the Contractor to assume responsibility for design and the future performance of the build.”
Importantly, the decision provides useful guidance on the interpretation of contracts where the obligations imposed on the Contractor may not be straightforward, and which often contain a mixture of obligations including –
He said that there are three key messages for employers and contractors:
Firstly, it is standard practice for technical documents to be incorporated into construction contracts in varying terms and multiple formats. Technical documents can contain onerous and, importantly, enforceable obligations. Contractors should take care to review such documents alongside the contract conditions to ensure that they appreciate the full extent of the obligations being placed upon them.
“Secondly, although each case turns on its facts, the Supreme Court confirmed that where part of the works is to be produced in accordance with a prescribed design and which must also comply with prescribed criteria, the Contractor takes the risk that complying literally with the design provided may mean the result falls short of the prescribed requirements.
This is “on the basis that, even if the customer or employer has specified or approved the design, it is the contractor who can be expected to take the risk of he agreed to work to a design which would render the item incapable of meeting the criteria to which he has agreed”.
Thirdly, although two requirements can appear to be inconsistent with each other they will not necessarily be interpreted as such where they are expressed as “minimum” requirements. The Supreme Court found that where two provisions impose different or inconsistent standards or requirements, the correct analysis is that the more rigorous or demanding of the two standards or requirements must prevail, as the less rigorous can properly be treated as a minimum requirement.”
The Supreme Court agreed with the Court of Appeal’s description of the contract in this case as of “multiple authorship and containing much loose wording”. Despite this the Supreme Court determined, in line with many previous cases, that the literal meaning of the provisions should prevail. This judgment does not alter the approach taken to contractual interpretation but emphasises that interpreting a specific provision owing to its particular commercial implications may receive short shrift from a court.
Justin Mendelle added that there were a number of practical points for contractors and employers to consider, in particular: “Contractors and employers should ensure that any contract into which they will be entering clearly distinguishes between those obligations which are absolute/subject to a fitness for purpose obligation and those which are subject to reasonable skill and care.
Where contract documents are multi-layered and complicated, there is really no substitute for reviewing the documents and making sure they exist alongside each other without conflicts/inconsistency. Importantly, consideration also needs to be given as to whether the interface between the conditions of the contract and the technical documents works.”
(Source: Sharpe Pritchard)
Freshfields Bruckhaus Deringer LLP (Freshfields) has advised leading international private equity firm Cinven on its disposal of CPA Global to Leonard Green & Partners, L.P. for a total firm value of, according to reports, $3.1 billion (£2.4 billion) including debt. CPA Global is recognised as the world’s leading intellectual property management and technology company, providing IP software, services and data & analytics for corporates and law firms.
Cinven bought CPA Global for $1.2 billion (£950 million) five years ago. CPA’ Global’s current earnings before interest, tax, depreciation and amortisation are reported at $200.2 million (£155 million) in its latest fiscal year.
Under Cinven’s ownership since 2012, CPA Global has achieved strong growth and accelerated its global expansion, particularly in China and South Korea, both organically and through acquisitions. CPA Global has also successfully transformed into a technology-led business, with the development of new innovative products for IP professionals to automate IP processes and workflows, including CPA Global File and CPA Global's proprietary IP Platform.
Freshfields partner David Higgins said: “We are delighted to have been able to support our long-standing client Cinven on this transaction and on the entire lifecycle of its relationship with CPA Global”.
The Freshfields team was led by partners David Higgins and Adrian Maguire. The same team also advised on Cinven’s original acquisition of CPA Global in March 2012.
This is the second large sale of a technology company by Cinven on which Freshfields has acted in the last 12 months. In late 2016, it was announced that the firm had advised Cinven on its €1.69bn sale of web services provider HEG to GoDaddy Inc.
With the introduction of 4MLD, particular implications apply to the gambling and gaming sectors. Here Andrew Tait, Partner at Gordon Dadds, discusses these considerations with Lawyer Monthly, delving into the top priorities for gambling institutions in remaining compliant.
The new MLRs which replace the previous 2007 regulations came into force on 26th June 2017, transposing the EU’s Money Laundering Directive 2015 (4AMLD) into UK law. The 4AMLD was enacted a result of the Financial Action Task Force’s (FATF) 2012 global recommendations into improving standards on the prevention of money laundering and terrorist financing.
Whilst the 4AMLD lays down certain mandatory requirements, member states were given some discretion to implement certain measures dependent on their own national assessment of risk. The 4AMLD extended the regulated sector to all gambling services subject to each member state having the ability to exempt gambling sectors assessed as being low risk. The Gambling Commission’s own AML risk assessment as at 31st October 2016 determined that all forms of betting and remote bingo were high risk, in addition to all forms of casino gaming.
Nevertheless as part of the wider national risk assessment undertaken by HM Treasury (covering all the 8 regulated businesses, including legal professionals), only casinos were assessed as high risk. Therefore status quo was retained in the 2017 regulations with both remote and non-remote casinos being subject to the new regulations.
However if holders of remote casino licenses operate a single wallet across different sectors, those other sectors are brought within the scope of the 2017 Regulations.
Main Changes Immediately Applicable to Casinos
Regulation 18 prescribes the requirements for casinos to carry out a risk assessment based on customer base, geographical reach, transactions, products and delivery channels. This risk assessment will form the basis of casinos’ AML policies, controls and procedures, which must be regularly reviewed and updated in line with changes in the risk landscape. The risk assessment needs to be documented and available for inspection. Under the former 2007 Regulations the requirement was to establish and maintain risk assessed policies and procedures.
There is much more onus on internal supervision and control in the MLRs in that responsibility for compliance with the regulations must rest with someone at board or senior management level, who amongst other things needs to ensure that there is an independent audit function to assess the adequacy and effectiveness of AML controls. There is also a new requirement for relevant employees involved in the AML flow to be regularly screened from an integrity and capability perspective. The regulations also now specifically require that the nominated officer (MLRO) is an internal appointment from within the licensed company.
The requirement relating to undertaking enhanced due diligence of Politically Exposes Persons (PEPs) has also been extended to include domestic PEPs.
Where casinos are part of a UK based group of companies there are additional new obligations for the parent company to ensure that its policies, controls and procedures apply to all subsidiaries and branches outside of the UK. These must have regard to the national legislation of relevant EEA states. Where subsidiaries and branches are established outside the EEA (where the AML laws are not as strict as the UK), the parent company must ensure that the subsidiaries and branches apply controls and measures equivalent to those required by the MLRs.
Implications for the Whole Gambling Industry
As intimated above, one of the biggest surprises for the UK gambling industry was that the fact that the MLRs retained the status quo and still only applied to casinos. This is contrary to not only the Gambling Commission’s own risk assessment but the EU Commission’s own guidance. In addition the stance taken by the majority of other EU states such as Germany, Belgium and Sweden, who have completed their national risk assessments, is that all gambling sectors except lotteries and sometimes bingo have been assessed as high risk and brought within national regulations.
The reason for HM Treasury’s approach was largely due to the fact that all forms of gambling are already subject to strict AML controls under the Commission’s own Licensing Conditions and Codes of Practice (LCCP). All licensed operators have (since 31st October 2016) been required under LCCP to carry out AML risk assessments and conduct customer due diligence using a risk based approach. It is also a requirement for all operators’ AML risk assessments to be reviewed along with their AML policies and procedures on at least an annual basis.
The Commission has in the past 4 years taken enforcement action against operators with AML failings on no less than 9 occasions, imposing settlements in lieu of financial sanctions, in the region of £1M in some cases. Under the Commission’s new enforcement strategy effective from July 2017, financial penalties will be increased for operators who continue to exhibit the same failings as those previously published. Operators and personal license holders may also see their licenses suspended or revoked in the most serious cases.
The Commission has recently confirmed that most operator AML risk assessments, reviewed to date, have been inadequate and have announced a thematic review of AML controls applied by operators during Q2 2017, in time for the FATF’s inspection of the UK in 2018.
Under the MLRs HM Treasury will have to carry out another risk assessment across the regulated businesses before 26th June 2018, in order to review areas of lower or higher risk. This will no doubt factor in the Commission’s thematic review and general assessment of all AML controls across all sectors. Therefore it may only take a few instances of evidenced money laundering activity, or inadequate risk assessments and AML controls in the betting or other sectors for the remit of the Regulations to be extended to the wider industry.
As part of Lawyer Monthly’s new series on law school, recruitment and careers in the legal sector, Jo Mercer, HR Manager at Your Legal Friend, describes what you can expect from flexible working and how the request process works.
Achieving greater work-life balance is now considered to be top of the agenda for many employees and employers.
Its rise is down to the influx of talented millennials entering the workplace, a greater awareness of mental health and wellbeing issues and the need to better cater for working parents or other demographics. It’s also due to the realisation that keeping staff happy boosts productivity and supports retention.
Despite flexible working being enshrined in law for over 20 years (under section 80F of the Employment Rights Act in 1996), it is only recently that it has become less of a ‘nice to have’ and more deeply engrained in the legal sector.
It’s described by the UK government as ‘a way of working that suits an employee’s needs, e.g. having flexible start and finish times, or working from home’ but there’s a lot more to a request than meets the eye and it must suit both you and your employer.
At Your Legal Friend we operate a flexible working scheme where every member of staff can work hours that both suit them and the needs of the business as long as they work their contracted hours between the hours of 7am and 7pm.
It’s an attractive option, as is the ability to request a set flexible working pattern which is a huge help to around 30% of our 250-staff operating on this type of contract. Many have requested this to support academic studies, their childcare needs or to care for relatives who are elderly or that have a long-term health condition.
The policy is extended to all staff and can be on either a temporary or permanent basis to suit all parties. All working patterns are reviewed annually to ensure that this is still viable for the employee and the business and to ensure that the original reason for the request is still in place.
It’s worth bearing in mind that if you’re a trainee or newly qualified solicitor, your employer will want to nurture you and offer close support in order for you to progress as quickly as possible.
This means that you may find that you are less likely to be granted a request to work from say 7.00am until 2.00pm as you will miss out on key developmental support from senior members of staff. As you progress and become more independent, this may change.
Some flexible working agreements are negotiated at interview stage. Senior and well-regarded solicitors within the industry or department heads can use this as a bartering tool alongside salary requirements.
No matter what your position, if your personal circumstances change whilst you’re in employment then you can typically obtain a ‘right to request’ form from your line manager or your HR representative.
You must have been at the organisation for 26 weeks and you mustn’t have submitted one in the previous twelve months. These forms are likely to ask you for the following details:
It’s vital to provide as much information as possible, particularly demonstrating that you have thought about potential risks and offered sensible ways of mitigating them.
This may be followed by a meeting to discuss the request between you, HR and your line manager with the outcome determined and discussed at a later date. Bear in mind that by law your employer can take up to three months to consider this, so it may not necessarily be a quick turnaround.
Ultimately the firm is duty bound to ensure your request does not have a detrimental impact on colleagues or the organisation.
Sometimes you must be prepared to give and take. You may arrive at a solution that is not the same as what you’d originally had in mind. For example, you may be able to work a day or two with reduced hours, so long as the hours are balanced out over the rest of the working week.
It’s important to remember that, if the flexible working you have requested is not feasible, then all is not lost and agile working could be implemented if the IT infrastructure supports this and service delivery can be maintained. This option allows employees to work offsite and at home which negates the commute to work and frees up additional time.
It’s best that you keep an open mind about flexible working. Your circumstances will change over time and the most important thing is to have a clear view of what will enable you to achieve your work life balance goals without impacting on your career.
A team of Hogan Lovells lawyers recently obtained a pro bono asylum victory on a matter referred by Immigration Equality, a nonprofit organization focusing on LGBTQ immigrant rights.
The client, a gay man from Nigeria, entered the United States as a tourist in December 2013. During his visit, then Nigerian President Goodluck Jonathan signed the Same Sex Marriage Prohibition Act, essentially outlawing homosexuality in the country. After the bill was signed into law, the man decided to seek asylum in the United States and sought assistance from the Center for Integration and Courageous Living and Immigration Equality.
The Hogan Lovells team filed the man’s Application for Asylum with the US Citizenship and Immigration Services asserting prior persecution based on sexual orientation while living in Nigeria, as well as a well-founded fear of future persecution based on sexual orientation if he returned to Nigeria. While his application was pending, the man settled in the Philadelphia area and Hogan Lovells assisted with obtaining and maintaining his Employment Authorization as well as locating resources for new immigrants and refugees.
After nearly three years of waiting, the US Citizenship and Immigration Services granted the client’s asylum request on August 17th. He will be eligible to apply for permanent residence in one year. Senior associate Blake Wilson, who led the Hogan Lovells team, said: “Our client is delighted and relieved to be able to live without fear of being returned to a country that criminalizes him for being gay.”
“In over 80 countries around the world, it is a crime or fundamentally unsafe for individuals to be LGBTQ,” said T. Clark Weymouth, head of Hogan Lovells’ US pro bono efforts. “Those seeking asylum from this persecution face an uphill battle, and we take great pride in knowing that our efforts have changed someone’s life for the better. We’ve had a long history of working with Immigration Equality on LGBTQ related asylum cases and this is a great outcome for this individual.”
The Hogan Lovells team included, in addition to Mr. Wilson, partner David Newmann, associates Cary Adickman and Eitan Ulmer and former paralegal Richard Walk.
Founded in 1994, Immigration Equality is the nation's leading LGBTQ immigrant rights organization representing and advocating for people fleeing violence, abuse, and persecution because of their sexual orientation, gender identity, or HIV status. Each year, they provide advice and legal services to thousands of LGBTQ and HIV-positive immigrants seeking refuge, fair treatment, and freedom in the United States with a remarkable 99% success rate.
(Source: Hogan Lovells)
Once a month, Scott Haley, Family Practice Manager at One Pump Court brings Lawyer Monthly Wednesday Wisdom, and this time round he sheds light on the classic black robes barristers boast in their daily work.
Every parent knows the joy of spending the summer holidays with their children - and then having to kit them out with new uniforms for the start of the school year in September. Along with the wig, the main part of a barrister’s uniform is their black robe.
Up until the 14th Century, men of learning wore robes as signs of their status. While other professions and fields of academia (excluding the clergy) gradually dropped this tradition, the Bar continued wearing robes - although, back then, they were generally brightly coloured. Being fashionistas, barristers changed these gowns with the seasons; opting for green in the summer and violet in the winter. Red was worn on special occasions.
A Royal Decree was passed on courts dress - known as the Judges Rules of 1635 - which aimed to regulate the attire worn by judges. Although not subject to these formal regulations, following the death of the Charles II in 1685, the Bar entered a period of mourning and started to wear black mourning robes, complete with the pleated shoulders and tapered elbows we see today.
The modern gown also has a mysterious piece of triangular cloth attached to the left shoulder, often described as ‘violin-shaped’, which is cut in two lengthways. Its origin is obscure and there are two theories for why it is there. The first is that this was once a money sack for brief fees. According to some, it is divided in half to create two segments, one for gold coins, and the other for silver.
The second theory is that the triangular cloth is a derivative of the mourning hood introduced following the death of Charles II, in keeping with traditional mourning dress of the time. This was the cast over the barristers’ left shoulder and held in place by a long tassel known as liripipe, originally held in the left hand. This liripipe has survived on the robe today, and is now represented by the strip of cloth that hangs down the front of the modern gown.
It’s been said that the Bar is stubborn, but it's probably safe to assume that the Bar has formally stopped mourning the death of Charles II by now. However for some reason, this fashion has continued through to the modern day.
European footballer Neymar da Silva Santos Júnior, commonly known as Neymar, is caught up in a recent dispute with former club Barcelona over a loyalty bonus that was included in a contract signing last year. Below Ruth Kennedy of 2 Temple Gardens clarifies the legal grounds for Barcelona’s claim.
Earlier this month, Neymar moved to Paris Saint-Germain for a world record deal worth nearly €500m. However, this was despite Neymar signing a contract extension with Barcelona in October 2016; agreeing to stay at La Liga until 2021. Part of this €500m included the €222m release clause which was required under the contract to bring Neymar’s contract to an early end.
Barcelona is now demanding damages and the repayment of the loyalty bonus paid to Neymar upon the renewal of his contract – a claim that in total amounts to at least €8.5 million. They are also asking for an additional 10% payment on account of the delays in satisfying the demands.
Release clauses
In Spain, release clauses are mandatory so that every player is able to buy out their own contract. In compliance with Spanish law, Neymar was required to personally pay his release clause, which was set at €222m. When Neymar’s representatives first tried to make the payment to do this, La Liga officials attempted to refuse the payment, with President Javier Tebas stating that the deal infringed Financial Fair Play regulations. However, the payment was subsequently accepted and it seems it was a valid payment.
Release clauses are not required in almost all other jurisdictions, including England and Wales. While it is always open to a club or player to suggest the insertion of such a clause into a player’s contract, clubs will generally be very keen to avoid them. This is for the very reason that Spain insists that they are included; they enable players to renege on their agreement with the club. The way that clubs have historically tried to ensure that this does not happen is by setting the release clause at a high figure. For example, Cristiano Ronaldo, Real Madrid player and two-time winner of the Ballon d’Or, is reported as having a release clause of €1bn, increased to this amount when he signed a new contract in November 2016. When the figure is set as high as this, in reality it will be unaffordable because of Financial Fair Play regulations. Neymar’s figure was probably at the limit of what would be acceptable.
The bonus payment
Barcelona is founding their claim on a “breach of contract”. However, as noted above, Neymar terminated the contract by invoking and satisfying a release clause which was part of the contract itself. As a matter of English contract law, depending on the precise wording of the contract, it would appear that Barcelona’s claim lies on shaky ground. The purpose of the release clause is to enable a player to walk away from a club when they so choose and can front up the money. It would be strange if, without a clause to that effect, the player was also required to repay a discretionary bonus. This would amount to an even higher release clause. If, however, there is something in the contract that states that the bonus is repayable should Neymar seek to take advantage of the release clause, then Barcelona will have a much stronger claim. In any event, Paris Saint-Germain has said that it will be held responsible for any fee payable for breach of the contract, so Neymar is unlikely to go out of pocket.
Barcelona has been embarrassed in the past by litigating against former officials. Fans will recall the case brought against President Juan Laporta, in which Barcelona sought to hold Laporta personally liable for alleged losses during his mandate; however this claim was dismissed. Regardless of the merits of the claim, this type of behaviour does not do wonders for team morale, or paint the club in a great light for prospective players. Bringing in a replacement has already proved difficult, despite the cash that they have received as part of the transfer. The initiation of proceedings against Neymar will hardly help things.
