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Faced with the need to manage greater volumes of data as well as multiplying communications channels, organisations and their legal representatives will have little choice but to implement new technology-based processes to reduce the time needed to identify and manage information required to satisfy regulatory and legal demands.
The ediscovery industry will continue reshaping itself to meet these requirements in 2017, building on the huge international consolidation seen in the previous two years. As exemplified by the merger of Kroll Ontrack with LDiscovery in late 2016, ediscovery suppliers recognise the need for organisations to access local data processing centres and document review services in order to comply with data privacy regulations, and to partner with global firms that can provide these facilities anywhere in the world.
Against this backdrop, Kroll Ontrack makes the following predictions for 2017:
The tough new General Data Protection Regulation currently being implemented in Europe will have a global impact. In cross-border litigation and investigations, where data needs to cross borders to comply with discovery requests, mobile discovery will become even more essential. These solutions capture, process, filter and examine data on-site, avoiding the need to transfer data across borders. GDPR has strict rules for protecting individuals’ right to be forgotten and organisations will need the relevant tools to find and erase personal data. Breaches of some provisions by businesses, which law makers have deemed to be most important for data protection, could lead to fines of up to €20 million or four percent of global annual turnover for the preceding financial year, whichever is the greater, being levied by data watchdogs.
Ediscovery is widely used by professionals working on legal cases in litigation, regulation, competition law and merger control, employment law and arbitration. This year, it will be used more and more in an anticipatory manner by organisations to identify, isolate and address any concerns about compliance that could expose them to the risk of some kind of intervention or sanction. This trend will be exacerbated by the introduction of an increasingly complex and aggressive regulatory environment, as illustrated by the French Anti-Corruption laws adopted in November 2016.
Enterprises are creating more data than ever before. Data can be found anywhere that there are storage devices to hold it, whether that is a data centre, laptop, mobile, on wearable devices or the cloud. Channels to move data from one place to another are also proliferating. As a result we are seeing a diversification of evidence sources being used to build up a picture of what has happened in a legal matter. Whilst email and structured data remain the most common sources of evidence, other data sources such as social media and satellite navigation systems are gaining in importance and providing key insights into many cases. Clients are increasingly choosing ediscovery providers who can integrate a wider variety of data sources into one platform for analysis.
Savvy law firms and corporate counsel will benefit from bringing the latest technologies including artificial intelligence (AI) to the attention of their clients. A long line of court decisions in the United States, and now also in the United Kingdom and Ireland, have already driven greater interest in and adoption of predictive coding. This technology learns from human document reviewers and automatically reviews and classifies documents accurately with significant cost savings.
Regulators are becoming increasingly aware of the competition and data privacy implications of big data. From a competition point of view, big data held by companies can trigger both Articles 101 (relating to antitrust cases) and 102 (abuse of dominance cases) of Treaty on the Functioning of the European Union (TFEU). This is highlighted by the joint report of May 2016 from the French and German Competition Authorities entitled Competition Law and Data which explains that big data can trigger article 101 TFEU and thus be considered a cartel. Companies that handle substantial data volumes on a day-to-day basis will need to factor it into their compliance strategies and embrace technological solutions to aid in investigations.
Despite evidence becoming mostly electronic, until recently regulatory authorities still required the submission hard copies of RFI forms, merger filings and other investigatory materials. However, the introduction of the European Commission’s eQuestionnaire for merger control and antitrust cases means parties must now submit all information electronically.
In December 2016, the EC has also recently published guidelines entitled “Recommendations for the Use of Electronic Document Submissions in Antitrust and Cartel Case Proceedings”. It is important to note that the EC strongly encourages the use of electronic formats even for paper documents which means they have to be scanned and made readable.
Tim Philips, Managing Director at Kroll Ontrack, said: “Ediscovery continues to provide essential tools and technologies for all manner of legal matters and allows companies to efficiently navigate through this era of big data, regulatory scrutiny and more stringent data protection requirements. 2017 is set to be another landmark year in terms of the adoption of ediscovery technology and the evolution of ediscovery technology itself.”
(Source: Kroll Ontrack)
ResMed, BMC (Beijing, China) and 3B Medical (Winter Haven, Florida) recently announced they have agreed on a global settlement of all litigation between the parties. BMC and 3B will be permitted to sell their existing products in exchange for royalty payments to ResMed, and ResMed will make a one-time settlement payment to 3B to close the Florida litigation between the two parties. The settlement did not include an admission of liability or wrongdoing by any party.
The five year agreement between the three companies resolves all pending litigation before the U.S. International Trade Commission, lawsuits pending in district court in Florida and California, foreign litigation in China and Germany, and validity challenges pending in various patent offices around the world.
"We are pleased to bring our litigation with BMC and 3B to a resolution and to have our intellectual property and patents validated through this settlement," said David Pendarvis, ResMed's Global General Counsel. "For 28 years, ResMed has stood strong in its commitment to innovate and develop products and solutions that exceed the needs of our HME customers and the patients we serve together. This agreement validates the important work we will continue doing for the patients and providers who count on us to provide the best products for treating the world's most serious respiratory conditions. And it allows us to avoid the distraction and ongoing expense of continued litigation."
"We are equally pleased to bring global litigation with ResMed to a resolution. The litigation was necessary to insure that the market for sleep disordered breathing products remained open to competition and validated 3B Medical's right to innovate and provide alternative solutions to the sleep disordered breathing marketplace," said Alex Lucio, Executive Vice President of 3B Medical.
"BMC continues to develop its own portfolio of intellectual property as one of the global manufacturers in the sleep disordered breathing market. We continue to fund research and development and bring new products to market. This agreement brings a very long battle with ResMed to a final conclusion and allows all of our companies to focus on developing great products to service the needs of our patients," said James Xu, General Manager of BMC Medical.
(Source: BMC Medical Co., Ltd.)
The Government of Canada recently launched a public consultation on new rules to strengthen food safety. The proposed Safe Food for Canadians Regulations would better protect Canadian families by putting a greater emphasis on preventing food safety risks for all foods imported into Canada or sold across provinces. The regulations would also apply to foods prepared for export.
The proposed regulations would require food businesses to have preventive controls in place to identify and manage food safety risks before products are sold to consumers. This would also reduce the time it takes to remove unsafe foods from the marketplace. This public comment period is an opportunity for all Canadians to comment on the proposed regulations.
These proposed regulations represent a major milestone in bringing the Safe Food for Canadians Act into force, which was passed in Parliament in 2012 with support from all political parties.
Quick facts:
(Source: Canadian Food Inspection Agency)
In the first ‘reverse cross border merger’, a UK company (Formenta Limited), has been ‘absorbed’ by a European-based subsidiary (Newco Immobiliare S.R.L) in a legal first that is set to be copied by companies with pan-European corporate structures responding to the UK’s vote to leave the EU. The merged entity will be known as (Newco Immobiliare S.R.L).
The ‘reverse cross-border merger’ was completed by Liza Zucconi, a Partner in city firm Silverman Sherliker’s Corporate team and Head of the Italian Desk, instructed by and in collaboration with Avvocato Emanuele Bosia, at Gianni, Origoni, Grippo, Cappelli & Partners and Philipp Simon, Barrister at Ely Place Chambers, in accordance with The Companies (Cross-Border Mergers) Regulations 2007.
The final procedure involved a Hearing in the High Court, Queens Bench Division before Registrar Jones in the Companies Court. On Liza’s instructions, Philipp successfully argued that such a merger should be permitted. Gianni, Origoni, Grippo, Cappelli & Partners further added their interpretation of how the Italian procedure should be applicable when interpreting the Directive.
Liza Zucconi said: ‘In the light of Brexit, EU Cross-Border Mergers have significantly gained importance when it comes to considering the future of pan-European corporate structures.’
Emanuele Bosia commented: ‘The position of the High Court, which showed commercial understanding and endorsed a more European approach that seems to be emerging from Brexit, is of remarkable interest.’
Philipp Simon added: ‘With the legal position now established, this is likely to be the first of many such mergers, as businesses respond to the legal and commercial uncertainties of Brexit.’
(Source: Silverman Sherliker)
Despite a strong year-end performance by the stock market and a post-election jump in confidence among consumers and businesses, limited information on the new Administration's potential economic policies led to a conservative 2017 growth projection of 2.0%, according to the Fannie Mae Economic & Strategic Research (ESR) Group's January 2017 Economic and Housing Outlook. Improved consumer spending in the third quarter drove a slight upward revision from the prior forecast; moreover, a friendly labour market and rising household wealth should continue to support consumers. Business fixed investment is expected to pick up – particularly in the equipment space – as the drag from declining oil prices faded and should add to 2017 growth. Additionally, government spending and inventory investment are expected to add to growth this year, while the dollar should continue to weigh heavily on net exports. Mortgage rates are predicted to rise gradually in the coming year, ultimately reaching a fourth quarter average of 4.3%. There is risk that rates could rise faster and higher than forecasted, but the impact on housing could be offset by strengthened income growth.
"Policy changes under the new Administration – in its nature, sequencing, and magnitude – will determine the direction of economic growth in 2017," said Fannie Mae Chief Economist Doug Duncan. "Incoming data suggest improving consumer spending, diminished labour market slack, and advancements in wages, but until we can more clearly read the political tea leaves, it's difficult to say whether this late-cycle expansion will continue into its eighth year. Thus, our theme for the year: Will Policy Changes Extend the Expansion? If stimulus policy is enacted, it would likely add to growth but could also be offset by potential tightened trade policy given the already historically strong dollar."
"We expect housing to remain resilient and continue its recovery in 2017, with affordability standing out as the industry's greatest obstacle, particularly for first-time homeowners," added Duncan. "Demographic factors, however, are positive. Our research shows that older Millennials have begun to buy homes and close the homeownership attainment gap with their predecessors.”
(Source: Fannie Mae)
In today's multigenerational workforce, most executives agree that each age demographic exhibits its own styles and approaches. CFOs in a Robert Half Management Resources survey said they see the greatest generational differences in employees' communication skills, ability to adapt to change and technical abilities. Only 7% of executives noted there are no differences.
CFOs were asked: "In which one of the following areas do you see the greatest differences among your company's employees who are from different generations?" Their responses:
Communication skills - 30%
Adapting to change - 26%
Technical skills - 23%
Cross-departmental collaboration - 14%
No differences - 7%
Research conducted for Get Ready for Generation Z by Robert Half and Enactus highlights key differences in these areas among baby boomers (1946-1964), Generation X (1965-1977), Generation Y (1978-1989) and Generation Z (1990-1999).
Communication style: Baby boomers tend to be more reserved, while Gen Xers favour a control-and-command style, the research indicates.
Conversely, Gen Yers prefer a more collaborative approach to communication, and Gen Zers prize in-person interactions.
Change management: According to the research, Gens X and Y tend to see change as a vehicle for new opportunities, while Gen Z is accustomed to change and expects it in the workplace.
Technical skills: When it comes to building their abilities, employer-backed training is expected by all workers. Baby boomers and Gen Xers most value traditional instructor-led courses or self-learning tools; millennials, which include Generations Y and Z, prefer collaborative and technology-centric options.
"Each generation brings unique characteristics to the workforce, which should be embraced," said Tim Hird, executive director of Robert Half Management Resources. "Too often, managers see these differences as negatives, but building a team with diverse perspectives, insights and strengths can only be a positive, leading to improved products and service levels."
Hird added that much of the consternation about generational workplace differences is frequently unnecessary handwringing. "Managing a multigenerational team doesn't have to be hard," he said. "For example, for years employers complained about how the work styles of millennials were disrupting the workplace. We know now, however, they simply have different outlooks, and the resulting changes from employers, such as new communication methods and enhanced work-life balance offerings, have benefited companies and employees alike."
Robert Half Management Resources offers five tips for managing a multigenerational workforce:
do a good job and help the company. This commonality lays a strong
foundation for relationship-building.
individual needs. Tailor your management for each person's strengths,
personality and aspirations.
employees a chance to get to know each other in a different setting.
where less-seasoned staff advise and share their insights with veteran
colleagues. Also, invite team members from all generations to share their
unique areas of expertise.
skills and diverse perspectives. This can prompt innovation and new
problem-solving techniques.
(Source: Robert Half Management Resources)
A class action lawsuit seeking $250 million in damages on behalf of Canadian purchasers of 2014-2016 diesel Jeep Grand Cherokees and Dodge Ram 1500 trucks was commenced on January 16th, 2017 in the Ontario Superior Court of Justice.
The class action alleges that on January 12th, 2017, the US Environmental Protection Agency (EPA) issued a notice of violation to Fiat Chrysler Automobiles N.V. (FCA NV) and to FCA US LLC (FCA) for alleged violations of law resulting from the installation and failure to disclose engine management software that resulted in increased emissions of nitrogen oxide from the vehicles.
The class action brought against FCA NV, FCA and FCA Canada Inc. (FCA Canada) alleges that Canadian purchasers of the Vehicles were deceived by the defendants' failure to disclose the presence of this software, resulting in losses and damage to members of the class.
A copy of the Notice of Action can be found on the Sotos LLP website. Canadian purchasers of 2014-2016 diesel Jeep Grand Cherokees or Dodge Ram 1500 trucks can access the website here to register to obtain further information about the class action.
The plaintiff and the proposed national class are being represented by Sotos LLP.
(Source: Sotos LLP)
All eyes were on the Supreme Court last Tuesday morning, when it published its decision in the Article 50 case. But according to a new survey, only about a third of Britons are familiar with the court.
The survey, carried out for the University of East Anglia (UEA), found the proportion of people who are aware of the court hasn't increased since the court was set up in October 2009.
The survey asked more than 3000 Britons whether they were 'very familiar' with the UK Supreme Court, 'somewhat familiar', 'not very familiar' or had never heard of the court.
Just under a third (32 per cent) said they were 'very' or 'somewhat' familiar with the court. Roughly 1-in-10 (10.5 per cent) either said they had never heard of the court, or that they did not know whether or not they were familiar with the court.
These figures are almost identical to figures from a survey in December 2012, carried out by the British Election Study team. In that survey, the same percentage (32 per cent) said they were very or somewhat familiar with the court.
Dr. Chris Hanretty, a researcher in UEA’s School of Politics who designed the survey, said it was surprising that the court was "no better known than it was four years ago.”
Dr Hanretty said: "One of the arguments for setting up the Supreme Court was that it would have greater visibility – that it might become a 'great conspicuous tribunal', as Bagehot had hoped more than a century ago. That doesn't seem to have happened. Maybe the Article 50 case will be the case that propels the court into the public imagination – for better or worse.”
The survey was carried out between 12-16 January 2017, with 3278 adults in Great Britain participating. Responses have been weighted to reflect the adult population. The earlier survey was carried out by the British Election Study team in December 2012. That survey asked 1132 British adults about their attitudes to the Supreme Court.
(Source: University of East Anglia)
The eleven justices of the Supreme Court heard evidence over four days in December before handing down their judgment today, establishing, by a margin of eight to three, that the UK Parliament must have a vote on whether the government may begin the official Brexit process, triggering Article 50.
The Supreme Court also ruled that the Scottish Parliament, and Welsh and Northern Ireland Assemblies need not contribute to the vote. Further legislation, based on the court ruling, will now be established by the government lawyer, which in itself will have to be favoured by both the House of Commons and House of Lords.
Here are some comments Lawyer Monthly has heard commentary from the below sources, who have provided their insight into the developments.
Lord Chancellor Elizabeth Truss:
Our independent judiciary is the cornerstone of the rule of law and is vital to our constitution and our freedoms. The reputation of our judiciary is unrivalled the world over, and our Supreme Court justices are people of integrity and impartiality.
While we may not always agree with judgments, it is a fundamental part of any thriving democracy that legal process is followed. The government has been clear that it will respect the decision of the court.
Charles Brasted, Partner, Hogan Lovells:
This does not mean the end of legal issues relating to the Brexit process but it does mean that the focus of that process now shifts to Parliament. Ministers have been managing expectations for some time, and they will no doubt be ready to react quickly. The Government will be looking to get a Bill through quickly. The expectation is that it will be able to do that. However, there is a real risk that the Government may have to make concessions on parliamentary involvement in the process along the way.
From a practical perspective, it will be at least as important for the Government that the Court confirmed that it has no legal obligation to consult any of the devolved legislatures in Scotland, Northern Ireland or Wales – something which could have caused material delay, not least given the forthcoming Stormont elections. However, the Court did emphasise that the convention acts as a political constraint that plays an important role in the operation of constitution.
It may surprise some that the question of whether an article 50 notice could be revoked by the UK after the Brexit process has been triggered remains unanswered. The Government expressly resisted this issue being ruled on even though the Divisional Court noted that, if it could be revoked, the claim would be "blown out of the water". It is a question that could only ultimately be determined by the Court of Justice of the European Union, and other claimants have already come forward seeking to have that question decided.
More broadly, this ruling will be studied closely by constitutional lawyers as it addresses a number of central issues, including the interplay between the Government's executive powers in international law and legislative sovereignty, the powers of the Court to supervise the exercise of prerogative powers particularly where existing law or rights are affected, and the fundamentally political, not legal, nature of the Sewel Convention on consultation of devolved legislatures. However, the Court was at pains to say that its judgment reflects well-established constitutional principles.
Kieran Jones, Partner and Director of Insurance, Weightmans:
This is a decision of great constitutional importance – the reiteration that Parliament is sovereign and has the power to decide upon changes in UK law, as opposed to the government using the historic royal prerogative power. The detail of the judgment will need to be digested over the coming days, and will form the basis of the exact course of action the Government may take when it comes to the draft legislation they put to Parliament.
The judgment was largely as expected, although the decision that the Government would not have to consult devolved Parliaments is quite a contentious point, which is likely to come as a great relief to the Department for Exiting the EU. Allowing devolved Parliaments a specific opportunity for consultation, given the overwhelming vote to remain in both Scotland and Northern Ireland, would have opened the doors to even more scrutiny and potential delay – it will be interesting to see how the respective parliaments respond to this.
This result should give Parliament the opportunity to debate the ground rules set out in the Prime Minister’s speech at Lancaster House last week, and it remains to be seen how much this debate will frustrate or delay the Article 50 process. We keenly await the outline of the proposed legislation, which will impact the UK, the legal services industry and our clients.
Hazel Moffatt, Partner, DLA Piper:
The extent of Government's loss has been limited, the Supreme Court unanimously agreed that the Government does not require to either consult or seek the consent of the devolved governments. By doing so, the Supreme Court has removed at least one material political obstacle from the path of the Government.
The Government is said to have prepared various versions of a draft Bill ready to be introduced within the next week depending upon the Supreme Court ruling. Whether its anticipated brevity and simplicity will help curtail debate and scope for amendment in both the House of Commons and the House of Lords - essential if it is to achieve its ambitious timetable of triggering Article 50 by the end of March - remains a major challenge. Managing the House of Lords in particular in this process may prove difficult.
There are also other legal proceedings in the offing, not least as to whether the Article 50 notice, once given, can be revoked. It is unlikely that we have seen the end of court involvement in the Brexit unwind.
Alexander Pelopidas, Partner, Rosling King LLP:
The Supreme Court noted that the referendum was only advisory and that the Act allowing for the referendum failed to specify what the consequences of the referendum would be.
The decision is a blow to the government and means that it must now propose a bill, for the approval of Parliament, which will allow the government to invoke Article 50. The government will need to tread carefully in respect of the bill that they propose to Parliament which opens the door potentially for politicking.
Whilst a one-line bill could, legally, give the government the authority it needs, it could be open to further legal challenge on the basis that it does not provide enough detail. Conversely, a more detailed bill could open the door for MPs to propose various amendments to the bill which could delay its approval and ultimately delay the Prime Minister’s current timetable for Brexit.
Mark Peters, Managing Director, Protiviti:
Whilst today’s verdict means that government will need to seek approval from MPs and peers to initiate an EU exit, there are still significant unknown risks and threats to an organisation's business objectives, financial management and its business operating model. Whatever your view on Brexit, a well-prepared organisation should still be thinking about potential implications and putting in place contingency arrangements across a wide range of scenarios that affect most if not every part of its business and operational activities. The organisations that are approaching Brexit as another ‘Change Driver’ and have a well-defined ‘Change Operating Model’ which is risk based, measurable and addresses the people, compliance, trading and innovation implications of Mrs May’s recently announced 12 point plan will be best positioned to be resilient, adapt and respond to the uncertainty.
Trevor Tayleur, Associate Professor, The University of Law:
The majority of the Supreme Court justices adopted the argument that succeeded in the High Court, namely that rights conferred by an Act of Parliament (the European Communities Act 1972) can only be removed by another Act of Parliament and not by royal prerogative powers. However, the government will be able to take considerable comfort from the fact that the Supreme Court said that it was up to Parliament to decide upon the form of legislation. Accordingly, a simple Bill authorising the service of the Article 50 notice will suffice, rather than the full-scale repeal of the 1972 Act.
Moreover, the majority of the Supreme Court ruled that the government does not need the consent of the Scottish Parliament and the Welsh and Northern Ireland Assemblies to trigger Article 50. Consequently, the government can be confident that it will be able to adhere to its timetable of serving the Article 50 notice in March.
Although the judgment is of great constitutional interest, its effect on the Brexit process is unlikely to be significant, as Parliament is likely to give the government the requisite authorisation.
Alistair Kinley, Director of Policy and Government Affairs, BLM:
A good deal of our work relates to advice and claims handling in respect of insurance policies issued by UK insurers and covering UK risks. The Supreme Court’s decision today will have no appreciable effect on that.
But we do act for many insurers who provide international covers and who have passporting arrangements in place to trade in other Member States. What is important there is not so much the outcome of the Supreme Court decision on the process for ‘Brexit’ but certainty, as soon as possible, about when the UK Government will trigger article 50 and what - given that we now know that the UK is leaving the single market - transitional arrangements for insurance and financial services will look like.
An important point to note is that we are going to need new rules for cross-border cases because the current ones (covering jurisdiction, applicable law and enforcement of judgments) come from EU regulations. These have a very wide scope, applying as much to consumer cases - foreign motor accidents, holiday injuries and the like - as to commercial disputes. Some early indication of the principles of the UK’s approach here would be very welcome for practitioners and insurers alike.
With conflict in South Sudan now entering its fourth year and its people facing dire humanitarian challenges, the United Nations refugee agency has revised upwards its funding requirements for 2017 to address new needs of those who have been displaced due to renewed fighting, increased violence and resulting food insecurity since July last year.
The revised requirements now amount to $781.8 million, including support costs (7%), some $297.9 million (61%) higher than the earlier budget of $483.9 million.
According to the Supplementary Appeal for the South Sudan Situation, launched by the Office of the UN High Commissioner for Refugees (UNHCR), over three million people are estimated to benefit from the agency's interventions by 31st December 2017. These numbers do not include local populations in host communities who – themselves suffering from food insecurity and limited access to basic social services and infrastructure – would also benefit from humanitarian interventions under the agency's inclusive support strategy.
UNHCR interventions will focus on increasing the integration of refugee response programmes with comprehensive national and regional protection and development frameworks; enhancing productive and coping mechanisms of refugee and host communities; and strengthening resilience through partnerships and innovative approaches such as cash-based interventions and other self-reliance initiatives in close cooperation with governments, humanitarian and development actors, civil society and the private sector.
The “planned assisted population” by the end of 2017 is about 3,026,300, 70% higher than the “population of concern” identified by UNHCR as of 31st October last year (1,770,688). The “population of concern” included more than 1.2 million South Sudanese refugees in the Central African Republic, the Democratic Republic of the Congo, Ethiopia, Kenya, Sudan and Uganda.
Of the nearly 1.8 million internally displaced within South Sudan (as of November 2016), UNHCR interventions focused on protection and assistance of approximately 240,000 most vulnerable internally displaced persons (as of end-October 2016). During 2017, UNHCR estimates to assist up to 830,000 displaced assessed as the most vulnerable among the total population displaced.
In terms of overall figures, some 6.1 million South Sudanese are estimated to be in need of urgent humanitarian assistance.
Additionally, disease, protracted instability, escalation of violence and wide-spread destruction have triggered unprecedented levels of food insecurity. More than 4.8 million people – half the population – are severely food insecure due to simply being unable to bring in the harvest. The economic situation, too, continues to worsen with hyper-inflation at record levels of more than 800%.
On top of these challenges, lack of in-country infrastructure such as roads or viable airfields, as well as the long rainy season of up to eight months per year have rendered South Sudan one of the most logistically challenging countries in the world in which to operate, and thus in which to bring assistance to those in need.
The breakdown of the revised requirements for the South Sudan Situation by country operations include: Uganda ($283.8 million), South Sudan ($171.7 million), Ethiopia ($157.7 million), Sudan ($68 million), Kenya ($40.5 million), Democratic Republic of the Congo ($30.3 million) and Central African Republic ($9.8 million). Headquarters and Regional Coordination amount to $476,251.
(Source: UN News Centre)
