Fenwick launches D.C. office with Freshfields, Dechert partners

(Reuters) – Weeks after hiring an antitrust partner away from Skadden, Arps, Slate, Meagher & Flom in Washington, D.C., Fenwick & West on Tuesday announced it was formally setting up shop in the nation’s capital with a new pair of regulatory-focused hires.

Thomas Ensign and Melissa Duffy have joined the Silicon Valley-founded firm’s new Washington, D.C. office as partners, where they’ll work alongside former Skadden counsel Steven Albertson. All three have joined Fenwick’s regulatory group. Ensign is a former Freshfields Bruckhaus Deringer partner, while Duffy was a partner at Dechert.

It’s the third office Fenwick has launched within the past five years, and it’s a reflection of how Fenwick’s technology and life sciences clients are facing greater regulatory scrutiny, firm chair Richard Dickson said.

“Our clients need increasingly sophisticated regulatory advice,” Dickson said.

Other law firms have been taking similar steps. Gibson, Dunn & Crutcher, Jenner & Block, Latham & Watkins, Mayer Brown, Shearman & Sterling, and Wilson Sonsini Goodrich & Rosati have added Justice Department and FTC alumni in recent months in anticipation of greater scrutiny from the Biden administration.

Dickson said Fenwick will grow its presence in Washington, but there is no set goal for the number of lawyers that will be based there.

Dickson also held open the possibility of expanding into other markets where there is a strong presence of technology and life sciences clients. Fenwick counts companies like Cisco Systems Inc, Electronic Arts Inc, Facebook Inc and Intuit Inc as clients.

“Technology and life sciences are not as concentrated in places like Silicon Valley as it once was,” Dickson said. “As that grows, we’ll grow along with it.”

The firm has profited from its focus on technology and life sciences clients. Last year, Fenwick’s revenue rose by 15% to $543 million while profits per equity partner grew more than 31% to $2.84 million, The American Lawyer reported in February.

That focus has been “the wind at our sails for our growth,” Dickson said. “Our clients have done very well over the last several years, and we’ve done very well alongside them.”

Ensign specializes in antitrust matters. His profile on Freshfields’ website said he advised on the London Stock Exchange’s $27 billion acquisition of Refinitiv from Thomson Reuters and Blackstone, a deal that closed earlier this year.

Ensign also worked on Intel Corp’s $16.7 billion acquisition of semiconductor manufacturing company Altera Corp, according to Freshfields.

Duffy is a five-year veteran of Dechert, where she advised clients on international trade issues, including trade controls and national security rules for cross-border transactions.

Representatives for Freshfields and Dechert wished Ensign and Duffy well, respectively.

A&O launches Silicon Valley tech team as Linklaters hires litigation star

In a major expansion of its US operations, Allen & Overy (A&O) has made an eye-catching move for seven White & Case technology partners to establish a new Silicon Valley presence.

Making the switch are partners Shamita Etienne-Cummings, Bijal Vakil, David Tennant, Eric Lancaster, Adam Chernichaw, Daren Orzechowski and Alex Touma. The new multidisciplinary team will be headed by Orzechowski and Vakil, with all of the arriving partners operating from the current locations in Silicon Valley, San Francisco, New York and Washington DC.

The team will offer a combined strength in technology disputes, transactions, patent litigation and intellectual property. As well as a new Silicon Valley hub, the team transfer will also provide A&O with a new San Francisco office.

A&O senior partner Wim Dejonghe said: ‘All businesses are technology businesses now. Our clients have been asking us when we will have a presence in Silicon Valley and now we are adding an offering that we will grow to serve as the firm’s centre of excellence in a range of technology areas. This is truly a top team and integrating them into our existing practice will be game-changing for us, not just in the US, but in our capabilities to serve clients in the key markets of Europe and Asia as well.’

Continuing the Magic Circle’s US push this week, Linklaters has appointed litigation heavyweight Richard Smith as a partner in Washington DC, a rare exit from Quinn Emanuel Urquhart & Sullivan. With over 30 years’ experience, Smith has an established reputation in litigation, particularly in white-collar defence.

Prior to private practice, Smith spent 15 years as a senior government prosecutor and was the former principal deputy chief for litigation of the fraud section of the US Department of Justice, Criminal Division.

Adam Lurie, head of Linklaters’ dispute resolution practice in the US, commented: ‘I’ve worked across from Richard on high-profile cases and our clients will benefit from his extensive experience, outstanding judgement and exceptional advocacy skills.’

In the UK, Walker Morris has made a significant addition to its real estate group, hiring partner George Bacon from Eversheds Sutherland. Ranked by The Legal 500 as a ‘leading individual’ for real estate in Yorkshire and the Humber, Bacon was previously head of real estate for Eversheds’ Leeds office.

Bacon said: ‘As a unique one-site firm located in Leeds, Walker Morris’ entrepreneurial philosophy, excellent reputation and breadth of expertise give it a distinctive edge and I am looking forward to being a part of one of the strongest specialist real estate teams in the country.’

Bird & Bird has expanded in London with the addition of experienced corporate finance partner Nick O’Donnell, who joins from Baker McKenzie. O’Donnell has spent 20 years advising clients across the technology, healthcare, energy, retail, media and financial services sectors on M&A, equity capital markets and ESG matters.

He has significant pedigree, having worked at Allen & Overy for over a decade with secondments at Morgan Stanley and Goldman Sachs.

Matt Bonass, head of Bird & Bird’s corporate group in London, said: ‘He has an excellent track record of advising on upper mid-market, cross-border deals; and his reputation is outstanding. We’re looking forward to having him onboard!’

Finally, in New York, Squire Patton Boggs has hired tax partner Jeffrey Koppele from Ashurst. Koppele has a wide practice advising clients on both domestic and international transactions, as well as dispositions, bankruptcy and restructurings, funds and investments, capital markets transactions and real estate investments.

Mitch Thompson, global head of the tax strategy and benefits practice group, said: ‘The expansion of our US tax team is an important part of our global growth strategy and Jeff will be significant boost our US and international tax offering to clients.’

Leaders in Law – Global Awards 2021 – Nominations

We would like to thank you for all of your nominations for the Leaders in Law Global Awards 2021. 

We are currently finalising our awards but if you would still like to be considered for an award please contact info@leaders-in-law.com or visit our nominations page:

https://www.leaders-in-law.com/nominations/

Winning applicants will be featured in our exclusive Global Awards 2021 Magazine, recieve a crystal trophy and our signature logos for marketing purposes:

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Good Luck to all and Stay Safe,

The Leaders in Law Team

How To Build A Solid Personal Injury Case In 7 Easy Steps

Personal injury cases are the lawsuits filed against the people who have injured you in any way possible. Personal injury cases are one of the most common cases filed every year. Almost 2 million personal injury cases are filed every year where most plaintiffs are involved with car accidents injuries, slip and fall injuries, and injuries caused by negligence.

In addition, the accidents cost lost wages, reduced ability to work, and additional conditions that come after the accidents. Hence, getting the right compensation becomes essential.

While assessing the loss for the compensation, you need to look after every small detail that can be considered an expense and added to your compensation calculation. Working with an experienced attorney will help you come up with the most accurate compensation number. To know how a personal injury attorney can help you, read more here.

What Factors Make Up A Viable Personal Injury Claim?

Although there are many factors that make your claim rock solid, all the factors can be categorized into these three umbrella factors.

  • Damages and injuries.
  • Clear liabilities.
  • Deep pockets.

Yes, there is a possibility that someone was negligent, and their negligence caused the accident. However, if you do not have any proof to claim, you don’t have any case to fight.

If you want to build your case, you need to have the right evidence for it. For instance, the injuries you have accrued in the accident. Furthermore, you need to find the liability which proves the opposition is at fault.

How To Build Your Personal Injury Case?

When you are injured at the cost of other negligence, you have the full right to ask rhythm for compensation for their mistake. However, when they refuse to give you the right compensation, you can take them to court.

However, before you take the opposition party into the country, you need to know that you would not be able to get the true value of your claim without a strong case. That being said, here we are with the things you need to consider to make your case strong.

Step 1: Know The Type Of Case Your Are Dealing With

Before filing a personal injury lawsuit, you must know what type of case you’re dealing with. Understanding the nature of the case will help you prepare yourself accordingly.

Step 2: Get A Complete Medical Treatment

If the accidents have caused you harm or severely injured, get complete medical treatment. The medical records act like evidence and make your case sturdier.

Step 3: Hire An Attorney

Some of the accidents can harm you emotionally and make it difficult to take any legal decision. In such a scenario, you should seek help from a personal injury attorney. A personal injury attorney can help you negotiate, manage the case-related document and give you enough time to recover from your injuries.

Step 4: Look For Witnesses

Witnesses play an important role in modifying your case. Look for witnesses who are willing to give their statements. Having witnesses to your side might bolster your side of the story and revamp your case.

Step 5: Gather Evidences

Law believes the evidence you showcase in your case. The more evidence you can provide to support your claim, the better for your case. Gather evidence that can help the judge reach an amicable decision.

Step 6: Consider Your Pain & Suffering

It is a good idea to express your pain and suffering in the courtroom. This shows that just drastically the injuries have affected your life. In addition, your pain and suffering help the judges evaluate the severity of the damage you have accrued.

Step 7: Seek A lawsuit Funding

Finally, seek lawsuit funding for your case. It is a quick source of money for the plaintiff amid the case. With the lawsuit funding, you do not have to worry about leaving your case in the middle. In addition, these loans are 100% risk-free, which means you are asked to pay only after winning the case.

The Bottom Line

The law has always been serious about the mistakes that have resulted in death. The only thing you need to do is gather enough evidence to prove your case. If you can do that, you will hold an upper hand in winning the case.

Do not be afraid of filing personal injury cases against the opposition, even if they are big names. But, before you file your lawsuit, hire a personal injury attorney to ensure your procedure is not infected by any mistakes.

Baker McKenzie tackles Johannesburg ‘management issues’ with leadership change and beefed up HR

Baker McKenzie is implementing a ‘three-step plan’ to address management issues at its Johannesburg office that include a change in leadership and measures to make it easier for staff to raise confidential concerns about their treatment.

The plan was unveiled to the office at a town hall yesterday, but the global firm said it had been ‘carefully reviewing’ issues relating to the office’s management for several months.

The office culture came under the spotlight last Friday, when UK news site Roll on Friday reported that office managing partner Morné van der Merwe had stepped down and that his duties were being handled by partners from the firm’s Amsterdam office.

RoF highlighted confusion over Van der Merwe’s role, given that he was still being listed as office managing partner last week. He had in fact stepped down in April, the firm confirmed today.

Bakers’ plan comes under three headings: ‘a change in leadership’, ‘listening to and reviewing people’s concerns’, and ‘a commitment to the future and commercial success of this office’.

“Global and local leadership are clear that this is an ongoing process and that it will take time, and therefore we are not in a position to comment further on various issues and actions at present,” a spokesperson said. “However, the firm is determined to create a positive working environment and foster an inclusive culture, and is doing this using systems previously put in place to ensure we only tolerate the highest standards of conduct in our workplaces.”

“In the nine years Baker McKenzie has been operating in South Africa, we have built one of the country’s leading law offices, but there is still work to do as the office grows and matures alongside our clients, supporting a culture where all of our colleagues can thrive and make the most of their talents.”

The firm confirmed that two partners from the firm’s Amsterdam office, which has a close relationship with the Johannesburg office due to a history of shared mandates, were currently supporting the office, which is also in the process of appointing an HR lead.

It added that while it took any concerns ‘extremely seriously’ when raised, it was ‘taking additional steps to enhance our confidential workplace behaviour escalation system… which will enable any person to come forward with any concerns with the confidence that these are being treated appropriately and confidentially’.

It added that the transitional leadership team, along with regional and global leaders would be joining existing employee forums to listen to any concerns.

Van der Merwe was elevated to the managing partner role in 2017 having been one of  16 lawyers and 15 professional staff to establish the office in 2012 when their previous firm, Dewey & LeBoeuf collapsed. The former head of corporate has a particular focus on the mining sector and is highly rated.

Bakers’ Johannesburg office comes under the remit of former London office head Alex Chadwick, who stepped down from his London role a year early in June to become CEO of Europe, Middle East and Africa operations.

Like many large international law firms, Bakers has unveiled a series of initiatives to improve its ESG credentials in recent years, which include the establishment of a taskforce in June last year to improve racial and ethnic diversity across its 77 offices while in 2019 it became one of the first law firms to commit itself to achieving gender diversity targets.

Everything you need to know about the Levaquin Lawsuits

One of the most inescapable aspects of life is illness. Young or old, rich or poor, strong or weak it affects everyone irrespective of other factors and can only be controlled depending on the number of precautions taken. Some illnesses are common while others are rare. Of the common ones, most are caused by bacteria. Of these bacterial diseases, sinus infections, pneumonia, kidney infections and anthrax can be treated by antibiotics like Levaquin. The basic principle of an antibiotic is this: These drugs attack harmful microorganisms in the body and kill it instantly by triggering an increased immune response from the body. This is why people instantly feel better after having taken an antibiotic. However, all antibiotics have some or the other side effects. This article talks about the Levaquin drug and the lawsuits that arose due to its usage.

(Everything you need to know about the Levaquin Lawsuits. Source: Pixabay)

Uses

As far as Levaquin is concerned, it is an antibiotic that can be used against a wide range of bacteria including E. Coli, Streptococcus and Staphylococcus. Thus, it is capable of treating diseases like pneumonia, bronchitis, urinary tract infections, kidney infections, prostate infections and so on. Sometimes, Levaquin is also prescribed for certain kinds of plague, post-exposure anthrax, intra-abdominal infections, diarrhoea caused by E. Coli and skin infections. It has also shown some amount of benefit in treating Sexually Transmitted Diseases as well. However, Levaquin can only treat bacterial infections and not viruses. Therefore, it does not help in the treatment of common cold, flu or other such viral infections.

Side effects

As with the case of any drug, Levaquin has its own set of side effects. However, as compared to the other drugs, Levaquin has side effects that are quite intense and subsequently dangerous. These side effects can be seen in a matter of hours or weeks and can become permanent. Some of the most common side effects include Gastrointestinal and neurologic organs. Other side effects include Nausea with or without vomiting, diarrhoea, headaches, and dizziness. Constipation, loss of appetite and trouble sleeping. Now one might think that these are not that serious. All drugs come more or less with these same side effects. However, the list of side effects for Levaquin does not end there. Some of the dangerous side effects include:

  1. Tendinitis. This is a condition that results in swelling of the tendons. This is mostly accompanied by bruising, tearing and rupture in the Achilles tendon which is at the back of the ankle. Patients with any history of tendinitis or other such tendon related issues must be extremely careful before consuming this drug.
  2. Nerve damage. This is another dangerous side effect of Levaquin. It can affect the nerves in the arms, legs, hands and feet that can lead to pain, weakness, numbing sense, burning sensations and so on. If the Central Nervous System is affected, it can lead to headaches, seizures, tremors, confusions, hallucinations, light-headedness and even mental problems.
  3. Heart problems. Levaquin can lead to an increased heart rate, tears, abnormal rhythms of the heart, and something called aortic aneurysms. Aortic aneurysms are basically balloon-like bulges in the aorta (the large artery of the heart that pumps blood from the heart to the rest of the body. The swelling can lead to ruptures in the walls of the artery leading to a leaking of blood. A study done in 2015 by JAMA showed that the patients taking the antibiotics of which Levaquin is a part, showed an increased risk of aortic aneurysm. Blood pressure and blood sugar increase is also a possibility so make sure you are taking the right decision while consuming this drug.

(Everything you need to know about the Levaquin Lawsuits. Source: Pixabay)

  1. Sensitivity to sunlight. All humans have a certain amount of resistance to sunlight. Consuming Levaquin can lead to a decrease in this resistance to sunlight and can lead to severe sunburn, blisters, and skin rashes. It is better to avoid going out in the sun while using this drug. If unavoidable, use large hats and cover all parts of your skin that are exposed to sunlight.
  2. Liver problems. This side effect is characterised by a yellowing of the skin and eyes much like jaundice. It also leads to dark urine, stomach-aches, light coloured stool, and vomiting.

FDA and Levaquin

Now before any drug is released for public usage, it has to be approved by the FDA (Food and Drug Administration). As far as Levaquin was concerned, the US FDA in July 2008 issued an order requiring manufacturers of this drug to include a warning on the labels to warn the consumers of the possible side effects. This is called a black box warning and is a very serious situation when it comes to the selling of a drug. In fact, in most cases this step is taken before the FDA issues a complete recalling of the drug. The dangers of this drug have been so much so that the FDA issued a statement warning consumers that the drug should only be taken if there are no other alternatives. The Levaquin warning was first issued by the FDA in 2008. In 2016 the warning was intensified based on an increasing number of complaints by the customers. In 2018, aortic aneurysms came into the picture and the labels were all changed thereafter.

 (Everything you need to know about the Levaquin Lawsuits. Source: Pixabay)

Lawsuits

Levaquin was manufactured by Johnson & Johnson. The manufacturer faced the first serious lawsuit in 2010. In that case, the plaintiff was given 1.8 million dollars as compensation for the damages caused due to the side effects. In the same year, 845 more such lawsuits took place. Some of the lawsuits are still pending even today. In all of the lawsuits, a common allegation was that the warnings were not clear enough with respect to the frequency and the intensity of the side effects.

Keeping all of this in mind, if you suffer from bacterial infections, you don’t have to worry. There are a lot of other options to treat bacterial infections. Drugs like Cipro, Avelox, Bactrim, Zithromax and so on have shown to be able to treat bacterial infections with great results. According to singlecare.com, Janssen Pharmaceuticals pulled Levaquin out of the markets in December 2017. The decision took place due to the serious side effects and due to the large number of lawsuits that were filed. However, at the time that it was discontinued, enough of Levaquin had already been produced and shipped, and lasted till 2020.

That brings us to the most important question. When does one file a lawsuit? A lawsuit can be an option if you experience any serious side effects. Schmidt and Clark LLP offer excellent legal advice when it comes to Levaquin. In case you are not able to avail of their help, it is better to find a legal expert and get the help of an able attorney as soon as possible with a good knowledge of the defective product injury. Considering the tremendous number of lawsuits that have been filed against it, there is a high chance that you might be able to get justice.

“Why Metadata Matters for the Future of Copyright” – Dr Martin Schaefer in the journal European Intellectual Property Review

Metadata is essential in the copyright industry of the 21st century to keep the engine of copyright running smoothly and powerfully for the benefit of creators, users and the copyright industry as a whole. But metadata is difficult to acquire and even difficult to keep up to date, as content rights are mostly multi-layered, fragmented, international and moreover volatile.

BOEHMERT & BOEHMERT partner and lawyer Dr. Martin Schaefer deals with a solution approach for this challenge in his article “Why Metadata Matters for the Future of Copyright”, which appeared in the 08/2021 issue of the “European Intellectual Property Review” (E.I.P.R.). Together with co-author Prof. Dr. Norbert Gronau from the University of Potsdam, Dr. Schaefer develops the idea of a neutral tool for searching and improving metadata that could serve as a buffer to protect the interests of proprietary database owners and avoid the shortcomings of centralised databases.

In light of various EU efforts, the authors conclude in their paper that it is time to take the concept of a “metadata search and enhancement tool” to a new level. And this is not only for the music industry, as the entire copyright sector could benefit from such approach. Large international public organisations – such as those under the roof of the EU – would be predestined for implementation.

To Prohibit The Use Of The Islamic Headscarf Or Christian Crucifix In The Workplace Constitutes Discrimination ?

The question is whether an internal rule of a private undertaking prohibiting the wearing of any visible sign of political, philosophical or religious beliefs in the workplace constitutes direct discrimination.

The Court of Justice of the European Union returns to the topic (Judgment 15 July 2021).

The Court reminds that such a rule does not constitute discrimination of that sort provided that it covers any manifestation of such beliefs without distinction and treats all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way, inter alia, to dress neutrally, which precludes the wearing of such signs.

A rule of this kind, provided it is applied in a general and indiscriminate manner, does not establish a difference in treatment.

The mere desire of an employer to pursue a policy of neutrality – while in itself a legitimate aim – is not sufficient, as such, to justify objectively a difference of treatment indirectly based on religion or belief, since such a justification can be regarded as being objective only where there is a genuine need on the part of that employer, which it is for that employer to demonstrate.

In the case in question, therefore, the dismissal of a nursery employee who had refused to remove the Islamic veil seemed legitimate.

The structure had imposed an internal regulation based on the principle of neutrality.

It should be noted that the employer had, for the same reasons, prohibited the christian crucifix to another employee.

The Energizer – Volume 96: Offshore Wind and Energy Projects

“OFFSHORE WIND AMERICAN MANUFACTURING ACT OF 2021” INTRODUCED IN THE U.S. SENATE

On 11 August 2021, Senators Ed Markey (D-MA), Elizabeth Warren (D-MA), Cory Booker (D-NJ), and Robert Menendez (D-NJ) introduced the “Offshore Wind American Manufacturing Act of 2021,” a bill to create two new tax credits for domestic offshore wind manufacturing facilities—an investment tax credit and a production tax credit.

The investment tax credit would provide a 30 percent tax credit to build, upgrade, or retool domestic manufacturing facilities that are “predominantly” used to manufacture or process offshore wind components or vessels. The credit would apply to construction, reconstruction, and acquisition costs as well if the facility would be repurposed to manufacture offshore wind components or vessels.

The production tax credit would provide a tax credit for each component or vessel an eligible facility produces, provided the component or vessel is placed into service or sold.  For components, the amount of the credit is determined by the rated capacity of the completed offshore wind turbine multiplied by a designated value for each type of component. For instance, a tower (or subcomponents thereof), would qualify for a credit calculated by multiplying the rated capacity by 3 cents, whereas a nacelle (or subcomponents thereof), would utilize a multiplier of 5 cents.  Vessels would qualify for 10 percent of the sale price. The production tax credit would phase out in years 2029 and 2030, and would be eliminated for components or vessels placed into service or sold after 31 December, 2030. To qualify for either credit, all laborers and mechanics employed by contractors and subcontractors that help manufacture the products at the eligible facility are paid the prevailing wage for similar work in that locality, as determined by the Secretary of Labor.

DOE AWARDS $82.6 MILLION TO ENERGY EFFICIENCY PROJECTS

On 13 August 2021, the U.S. Department of Energy awarded US$82.6 million in funding to 44 projects designed to increase energy efficiency and lower consumers’ energy bills. According to Energy Secretary Jennifer Granholm, “Americans spend about $100 billion every year on wasted energy from buildings, heating and cooling units,” and “advancements that make both existing and newly constructed buildings more energy-efficient… save[s] consumers money and reduce[s] the climate impacts of the places we live and work.”

Spanning 20 states, the awarded projects include efforts to develop: an isothermal compressor that can reduce the energy consumption of refrigerators by an average of 40 percent; demonstrate the effectiveness of battery-integrated appliances to shift electrical loads on utility grids in response to demand; and collaborate between home manufacturers, product suppliers, and customers to develop cost-effective solutions for net-zero-energy manufactured homes.

OFFSHORE WIND LEASE OPPORTUNITIES CONSIDERED OFFSHORE THE CAROLINAS

On 13 August 2021, the U.S. Bureau of Ocean Energy Management (BOEM) announced that it is considering a lease sale for the Wilmington East wind energy area located in the Long Bay area, offshore North and South Carolina.  BOEM is currently preparing a supplemental environmental assessment and is seeking public comments through 12 September 2021.

The announcement follows closely on the heels of North Carolina Governor Roy Cooper’s June 9th executive order directing agencies in his administration to develop wind-energy infrastructure off the state’s coast.  Section 1 of the order lays out targets for energy production from wind energy, noting that the state “will strive for development of 2.8 gigawatts (GW) of offshore wind energy resources off the North Carolina coast by 2030 and 8.0 GW by 2040.”

CALIFORNIA ENERGY COMMISSION ADOPTS ENERGY CODE PROMOTING ELECTRICFICATION FOR NEW AND RENOVATED BUILDINGS

On 11 August 2021, the California Energy Commission announced that it adopted the 2022 Building Energy Efficiency Standards (Energy Code) for newly constructed and renovated buildings. The Energy Code applies to residential, nonresidential, high-rise residential, and hotel and motel buildings. The CEC expects the revised standards to increase energy efficiency and reduce the carbon footprint of buildings, thereby helping California meet its long-term climate and emissions goals.

The revised standards include four major changes. First, they will encourage electric heat pump technology, a technology that may provide substantial increases in energy efficiency while decreasing greenhouse gas emissions. Second, the standards will establish electric-ready requirements for single-family homes, requiring these buildings to have dedicated circuits and infrastructure to accommodate installation of electric appliances. Third, they extend solar photovoltaic (PV) system standards and introduce battery storage standards for additional building categories, including select businesses. Finally, the Energy Code updates ventilation standards.

The revised Energy Code is notable in that it establishes combined solar PV and battery standards for certain businesses and civic facilities, including retail and grocery stores, restaurants, schools, theaters, auditoriums, and convention centers. The code revisions also establish new energy efficiency standards for commercial greenhouses, with this provision primarily directed to commercial cannabis growing operations.

Article By

Buck B. Endemann
Daniel S. Cohen
Molly K. Barker
Natalie J. Reid
Matthew P. Clark
Nathan C. Howe
K&L Gates

In focus: Class action lawsuits go mainstream

Class action lawsuits used to have an image problem. Too big and too American, they were accused of fuelling an ambulance-chasing legal culture and filling the pockets of opportunistic lawyers. Over the past 12 months, however, the mood has altered. Despite the size and unruliness of their cases, large claimant groups are making headway in the English court system, while litigation funding is shrugging off its champertous past and flying the flag for social justice. As more mega-claims hit London courts, however, the practicalities of how group litigation is managed and paid for need to keep up with changing attitudes – or risk undermining the model’s new-found reputation.

This year has seen a series of judgments in favour of mass action. This week, a lawsuit agaist Mastercard brought on behalf of 46 million consumers was certified to proceed to trial, after originally being dismissed by the Competition Appeal Tribunal. In July, the Court of Appeal agreed to reopen a £5bn claim brought by 200,000 Brazilians against mining giant BHP. The case was previously denounced as ‘irredeemably unmanageable’. Meanwhile, British Airways succumbed to the pressure of collective redress last month, settling a case brought by 16,000 claimants in the wake of a major data breach.

‘Judges are generally becoming more receptive to group litigation,’ says Tom Goodhead, managing partner at class action specialist PGMBM. ‘Although it’s not necessarily reflected everywhere in the judiciary. At first instance there are some judges who are more old-school and who view this litigation as something which can be very difficult to manage – or even a bit distasteful.’

The same goes for third party funding. ‘Litigation funding used to be a bit of a dirty word, based on the idea that the cases were just brought by funders to fill their pockets,’ says Andrew Nugent Smith, managing director at Keller Lenkner UK. ‘But now there’s a recognition that for these collective redress cases to work, litigation funding is essential and therefore litigation funding is an important tool for access to justice.’

‘A lot of people express concern about irresponsible litigation funding, and that litigation funders are just fuelling compensation culture,’ Nugent Smith adds. ‘But what you have to remember is that most litigation funding is done on a non-recourse basis. It’s not in the interest of funders to put money into speculative claims.’

While attitudes to class action lawsuits may be changing, the rules that govern such cases risk lagging behind. Part 19 of the Civil Procedure Rules – which concerns parties and group litigation – ‘hasn’t really kept pace with the changes in litigation’, says Goodhead, meaning cases are being held up.

Competition between legal teams fighting to represent claimants is a particular sticking point. ‘In the US, Canada and Australia there are mechanisms to resolve that and there’s a lot of cooperation generally between the lawyers,’ says Goodhead. ‘Whereas in the UK, because traditionally few firms have done this type of work, there are some difficulties about who will carry the case.’

This issue came to a head in a Supreme Court dispute between Harcus Sinclair LLP and Your Lawyers Ltd. Your Lawyers approached Harcus Sinclair in 2016 to suggest collaborating on group action against Volkswagen. Harcus Sinclair agreed, signing a non-disclosure agreement which included a non-compete clause. After signing, however, Harcus Sinclair recruited claimants for its own action, issued its own claim form, and began working with Slater and Gordon.

Will the rise of class actions result in more spats between solicitors? ‘Generally I’ve got extremely good and collegial relations with a number of other claimant law firms,’ says Goodhead. ‘I would hope that [disputes] don’t become more frequent. But there is a risk that they will, and it’s why there needs to be stronger procedural mechanisms in the courts.’ Tension between solicitors is not only generated by competition for lucrative work; large City practices are also said to be ‘utterly hostile’ to group action firms, under the instructions of their corporate clientele.

How mega-claims are managed is one issue that needs addressing, therefore. Perhaps more important, though, is how they are paid for. Third-party funders are keen to flash their access-to-justice credentials, and it is true that their money enables cases to be brought which would otherwise never make it to court. (Mass actions have proved eye-wateringly expensive, with Mastercard claimants submitting a costs budget of £32.5m).

On the other hand, it leaves an undeniably sour taste when worthy claimants lose hefty chunks of their damages as part of their funding deal.

This is not necessarily a criticism of the funders. Litigation is risky and the capital – which largely comes from hedge funds, private equity and other institutional investors – is expensive. ‘I think litigation funding gets unfairly criticised,’ says Tets Ishikawa, managing director of LionFish, a funding offshoot of listed litigation specialist Rosenblatt. ‘Litigation funding pricing is not actually out of line with many other financial markets. It’s just the notion of it that’s different.’

However, there is scope for more sophisticated funding models – which could lead to better outcomes for claimants. ‘What’s going to enable the growth of the market is the fact that we can run a broader range of cases because we’re structured in a more financially subtle way,’ says Ishikawa. ‘As a fund manager, if you’re investing someone else’s money and you get a bit of the profit you make for them, you have to do some pretty big cases to make it worthwhile. Whereas Lionfish is a principal investor which means we invest money off our own balance sheet, so we can do a small deal. If we lose it, it’s our money that we lose. But if we win, it’s our profit to keep.’

Lionfish’s model, which funnels income off the group’s own balance sheet into third-party court cases, is largely untested. The business is still young, and other firms have yet to adopt a similar approach. However, as climate change, environmental disasters, data breaches and emissions scandals spark more mega-claims – and more firms and funders enter the market – perhaps change is in the air.