Blogs & News

  • Mon, August 20, 2018 2:01 AM | Akriti Dayal

    Artificial Intelligence (“AI”) is bringing unprecedented changes to how legal professionals search for the truth within data. Where armies of lawyers might trawl through documents in search of material, computer algorithms can now effectively make human decisions—helping get to the smoking gun faster with significantly less resources.

    The holy grail of AI is when computers are able to learn by themselves. However, AI is not there, yet. AI cannot function without human interaction nor understand on its own. AI is unable to reason and understand causation, yet it’s very good at discerning patterns within text, which can be extremely helpful to better understand the content of documents.

    AI software must be trained by knowledgeable users in order for the computer to determine what information is relevant to a particular inquiry. The software computes scores against electronic documents indicating a proximity to a known pattern. The user reviews the results and tells the system whether it yielded any relevant data. The system will then retain what it was taught and be able to identify data patterns and relevant concepts in future inquiries.

    Technology-Assisted Review

    One way AI is used in the litigation setting is through technology-assisted review (TAR). TAR has been used successfully for years and has been accepted by courts around the world.[1] TAR requires a subject matter expert to review a sample set of random documents to train the system on what is relevant. Once the system is trained, it scores each document on how likely that document is to be relevant to the case.

    Instead of needing eyes on every document, TAR enables lawyers to get to the most relevant documents first, and not spend time reviewing documents that the system rates as having low relevancy scores. Not only is using TAR a more efficient way to get through large data sets, many studies showed that TAR is far more reliable than human reviewers.[2] While human eyes can tire and make mistakes, computer systems do not. In addition, machines do not have opinions like humans. Two reviewers may come to alternate conclusions about the relevancy of a document. TAR consistently tags all documents in accordance to the training it was provided.

    TAR 2.0

    Practitioners are turning to a new variant of TAR, Continuous Active Learning (“CAL”), or TAR 2.0. Unlike TAR 1.0, where the reviewers need to train the system when more documents are added, CAL continuously trains the system as documents are coded. CAL usually involves specifying an initial seed set of documents to be reviewed and coded. Once coded, these documents are used to train the learning algorithm, which scores the documents based on likelihood of responsiveness. The learning is ongoing as more documents are reviewed and coded, the CAL results are continually updated against the entire corpus.

    The benefits of using CAL cannot be understated. Vast, sprawling document sets – which are familiar to anyone involved in litigation – can now be approached very differently. CAL supports a natural train of enquiry that continually learns from the human review. This aligns more closely with how humans explore their cases and increases their understanding of the issues as they continue to review. CAL maintains focus on the relevant aspects of documents and highlights other documents with similar features.

    Using AI to Learn From the Past

    Historical data reviewed in prior matters can hold great value. Using AI to learn from the past allows for a more efficient future. The logic is that it is impossible for a person or team to understand every document that has been reviewed and produced. By training AI models on the review performed in previous cases, AI can be used to identify if there are documents in a new set of data with characteristics similar to documents reviewed and produced in previous matters. The historic data effectively ‘bootstraps’ the AI learning for a new matter and relevant, irrelevant and unknown characteristics are revealed before human review.

    Legal teams with data from historic cases can test the proposition that AI trained on previous matters has some value when reviewing new data. Without too much effort, legal teams can train the AI on documents produced in litigation as relevant and those not produced as irrelevant documents. The teams can withhold one or more cases from the training. The AI can then score the ‘unknown’ documents in the cases withheld from training. Did the model make any correct predictions by ranking relevant and irrelevant material? It won’t be perfect, but do the results provide better visibility into an unknown data set and will that help drive a more efficient and consistent review?

    There are many potential applications for AI developed on historical information tailored to a client or type of investigation. AI can help with another dispute to immediately identify known material or assist the legal team to focus further training and review on unknown concepts. For corporations, AI built on historical data from matters run with different counsel could promote consistency across legal services panels and capture knowledge that is otherwise lost at the end of the engagement.

    AI Beyond Litigation

    AI has also proven useful in the mergers and acquisitions space. The technology is reducing the human effort with assessing areas of risk in agreements, as well as documenting a book of record for a transaction. The savings this provides from both a time and cost perspective are significant[3]

    Aside from being effectively deployed in the legal arena, AI can be used in other corporate settings. For example, AI can identify language that may reveal potential risks to your organisation, such as employee theft or sexual harassment. This would allow an organisation to jump ahead of a whistle-blower or prevent a trade secret theft by gathering and evaluating electronic intelligence to predict issues.

    Organisations can also use AI to determine when policies and protocols aren’t working as intended and then revamp company communications to ensure compliance. Placing AI closer to the point of information creation and communication provides an avenue to identify and address known risks as an event occurs. Monitoring email and network traffic in real-time for threats is a common practice, and AI monitoring of information creation and use is a logical next step.

    AI will increasingly be part of the practice of law. Machines can’t yet learn for themselves, though we can begin to prepare the information we create today for AI to learn from. If legal teams want to embrace an AI future, they should consider what they do best, what data they maintain, and how it might be valuable in training algorithms to help them reach better and more consistent outcomes sooner.

    About the author: Benjamin Kennedy brings fifteen years' experience consulting within government and private sectors on litigation support. His technical skills, passion for new technology and legal knowledge are valued by clients when developing cost-effective solutions for information review exercises of any size.

    Source: https://www.australasianlawyer.com.au/sections/features/ai-in-practice-253766.aspx


  • Mon, August 20, 2018 1:03 AM | Akriti Dayal

    Employers may face potential criminal and civil liability arising from the use of “no-poach” employment agreements. The no-poach agreement is gaining renewed federal and state government scrutiny for its potential antitrust impact on the economy. Private litigation includes class actions and multidistrict litigation accusing companies of: (1) striking deals with other companies, and/or (2) enacting hiring practices that allegedly violate the Sherman Antitrust Act, 15 U.S.C. §§1-7, by preventing employees from obtaining positions with other companies. Earlier this year, U.S. Senator Cory Booker introduced a bill, The End Employer Collusion Act, to clarify that no-poach agreements in the franchise context are illegal under federal antitrust law.

    No-Poach Agreement

    A no-poach agreement is different from other employment contracts such as a noncompete agreement, which is an agreement between the employer and the employee. A noncompete agreement permits a company to protect legitimate business interests, usually concerning the protection of trade secrets, confidential business information and goodwill.

    A no-poach agreement is an agreement between two unrelated companies (called a “horizontal agreement”) to not hire each other’s employees. This pact may include an agreement not to cold-call, solicit for employment, or hire the other company’s employees.

    Employers like to use no-poach agreements because they help retain talent and protect investments that employers make in personnel. For example, employers invest time and resources into training to ensure that employees have the requisite skills to successfully deliver products or services to consumers.

    The concern with no-poach agreements is that some view them as harmful to the economy because they limit potential job opportunities. This raises antitrust concerns because the Sherman Act prohibits entities from entering into agreements that unreasonably restrain trade. Another concern is that no-poach agreements that apply to low-wage workers result in a limitation of the worker’s earning potential because of the limited pool of jobs available to them.

    High Standard of Review

    A no-poach agreement is not automatically invalid or illegal. Courts find no-poach agreements to be legal if they are: (1) ancillary to a larger, legitimate collaboration; (2) reasonable in scope and duration; and (3) reasonably necessary to further the interests of the collaboration. Eichorn v. AT&T Corp., 248 F.3d 131, 146 (3d. Cir. 2001).

    In Eichorn, the Third Circuit held that an agreement whereby all AT&T affiliates were not to hire or solicit any employees from a company that it sold to Texas Pacific Group for a period of eight months after the sale, was lawful under Section 1 of the Sherman Act. The Third Circuit ultimately found that the agreement was a “legitimate ancillary restraint on trade” because its primary purpose was to ensure that Texas Pacific Group could retain the skilled services of the company’s employees, and that any restraint on the plaintiffs’ ability to seek employment at AT&T or its affiliates was incidental to the sale of the company.

    High-Tech Industry

    The federal government’s scrutiny of no-poach agreements is typically handled by the U.S. Department of Justice (DOJ) Antitrust Division and the Federal Trade Commission (FTC).

    No-poach investigations are not new. In 2010, the DOJ reached a civil settlement with technology companies—Adobe Systems, Apple, Google, Intel, Intuit and Pixar—that prevented them from entering into no-solicitation agreements for employees. Previously, these companies entered into bilateral “do not call” agreements with each other, which prevented the companies from directly soliciting each other’s highly skilled employees.

    The DOJ stated that the agreements eliminated a significant form of competition to attract highly skilled employees and overall diminished competition to the detriment of affected employees, who were likely deprived of competitively important information and access to better job opportunities. See DOJ Antitrust Press Release No. 10-1076.

    Some of these high-tech companies were then defendants in a no-poach class action lawsuit. In re: High-Tech Employee Antitrust Litigation, No. 11-2509, 2014 WL 6478776 (N.D. Cal. Sep. 3, 2015) resulted in a settlement agreement in 2015.

    DOJ Guidance for Human Resources

    In October 2016, the DOJ and FTC issued the Antitrust Guidance for Human Resource Professionals (“Guidance”) (Oct. 20, 2016) (https://www.justice.gov/atr/file/903511/download) stating that agreements between companies to either prevent hiring from their respective workforces, or set artificial limitations on employee wages, would be subject to criminal prosecution if such agreements are not reasonably tied to a larger, legitimate collaboration between the companies.

    Rail Industry

    On April 3, 2018, the DOJ filed a civil consent agreement with two rail equipment suppliers for maintaining no-poach agreements that targeted project managers, engineers, executives, business unit heads, and corporate officers in U.S. v. Knorr-Bremse AG and Westinghouse Air Brake Technologies Corp., No. 18-00747 (D.D.C.). See DOJ Press Release No. 18-398. Under the antitrust laws, no-poach agreements that are deemed “naked” (i.e., not reasonably necessary for a separate, legitimate business transaction or collaboration) eliminate competition in the same irredeemable way as agreements to fix product prices or allocate customers, which have traditionally been criminally investigated and prosecuted as cartel conduct. Although the nature of this enforcement action was civil rather than criminal, the DOJ explained that it exercised such lenience only because the defendants discontinued the unlawful arrangements before the DOJ published its Guidance.

    Franchise Industry

    In 2018, governmental antitrust scrutiny of the no-poach agreement has focused on franchise agreements in which franchisees agree to not hire the employees of other franchisees. Ten state attorneys general—including the attorneys general of New Jersey, New York and Pennsylvania—are currently working together to investigate franchisors’ and franchisees’ use of the no-poach agreement to prevent low-wage employees of restaurant franchisees from being employed by another franchisee in the chain.

    In response to these investigations, some franchisors removed the no-poach agreements from their franchise agreements and provided documentation showing that they had not enforced the no-poach agreements.

    Private litigation involving no-poaching allegations is expected to continue, especially regarding franchise arrangements. A recent paper by Princeton University economists report that 58 percent of major franchise chains include noncompetitive clauses including no-poach agreements.

    In July 2018, U.S. Senator Cory Booker and other senators, who are concerned about worker mobility and pay, sent a letter to 89 CEOs of large franchisors to abandon the allegedly collusive no-poach agreements that prohibit franchisees from hiring away workers employed by another franchisee.

    Review Agreements

    Significantly, employers should be aware that the DOJ’s 2016 Guidance explicitly states that “agreements among employers not to recruit certain employees … are illegal,” and cautions human resource professionals against entering into no-poach agreements or sharing competitively sensitive employment information with competitors. It is recommended that companies review their agreements to evaluate whether they have a horizontal no-poach agreement that does not meet the Eichorn standard.

    Review Insurance Policy

    For an employment antitrust suit regarding a no-poach agreement, potential insurance coverage may arise from employment practices liability (EPLI), which is the most likely source of coverage.

    Otherwise, coverage could possibly arise from directors and officers (D&O) liability insurance policies. D&O policies often contain a standard antitrust exclusion and employment-related exclusions. However, the policy should be reviewed to determine whether the policy terms include employment-related antitrust liability.

    The policies should also be reviewed to determine whether they are issued on an “occurrence” basis (when the allegedly wrongful conduct took place) or a “claims-made” basis (when the claim was submitted to the insurer). Typically, EPLI and D&O policies are issued on a claims-made basis. Thus, future claims-made policies may provide coverage for past conduct. Therefore, consider seeking a policy with: (1) broader coverage for (2) a claims-made trigger based on a company’s prior use of no-poach agreements.

    The policies should also be reviewed to determine whether they extend coverage for subpoenas or investigations. The coverage analysis relies on the underlying facts and the specific policy language at issue, particularly whether the investigation involves a “wrongful act” or a “claim.”

    Summary

    To minimize potential criminal and civil liability arising from the use of no-poach employment agreements, companies should review their agreements with other companies to determine whether their agreements—which are typically not expressly named a “no-poach agreement”—meet the Eichorn standard. A company—such as a franchisor or a contractor—should determine whether its agreements require its business partners—such as franchisees or subsidiaries—to enter into no-poach agreements with each other. If agreements do not meet the Eichorn standard, then companies should consider whether to issue a statement or contractual amendment stating that the agreement will not be enforced. If a company used no-poach agreements in the past, then review the current insurance policies for coverage and, if needed, negotiate for future claims-made policies that cover the prior no-poach agreements.

    About the Author

    Sheila Raftery Wiggins is a partner with Duane Morris in Newark. She advises businesses on complex legal, regulatory and communications/marketing issues.

    Source: https://www.law.com/njlawjournal/2018/08/16/no-poach-agreements-are-targeted-by-government-employees-and-legislators/

  • Sun, August 12, 2018 11:50 PM | Akriti Dayal

    The new General Data Protection Regulation (GDPR) came into force on Friday 25 May 2018. Ironically, a law designed to protect peoples’ privacy in a digital age has unleashed a torrent of spam emails.

    In recent weeks, many organisations, including lawyers, have been bombarding their customers with emails asking for consent to keep them on a mailing list or even to contact them ever again. Such emails, with catchy subject lines like ‘Let’s not say goodbye’ or ‘Don’t leave me this way’, are a misguided attempt at complying with GDPR. The irony is that by trying to comply with one law organisations could be falling foul of another.

    It is a myth, which has been busted by the Information Commissioner on her blog, that the introduction of GDPR means that the only legal basis for personal data processing (including for marketing) is consent. There are six legal bases set out in article 6:

    (a) Consent: the individual has given clear consent to process their personal data for a specific purpose.

    (b) Contract: the processing is necessary for a contract with the individual, or because they have asked the data controller to take specific steps before entering into a contract .

    (c) Legal obligation: the processing is necessary for the data controller to comply with the law.

    (d) Vital interests: the processing is necessary to protect someone’s vital interests e.g. life or property.

    (e) Public task: the processing is necessary for the data controller to perform a task in the public interest or for official functions, and the task or function has a clear basis in law.

    (f) Legitimate interests: the processing is necessary for the data controller’s legitimate interests or the legitimate interests of a third party unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests.

    GDPR does not fundamentally change the position set out in the previous Data Protection Act 1998 (DPA). A similar list to the one above can be found in schedule 2 of the DPA. Consequently, there is no need to send consent emails to regular contacts and existing customers whether or not they are on a mailing list. Often companies will be able to rely on the legitimate interest condition (explained above) to continue to make use of such data even for marketing purposes, subject to compliance with the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR).

    Where personal data for marketing purposes has been gathered through consent there is no need to automatically refresh permission in preparation for GDPR. It is important though to check that existing permissions meet the higher GDPR consent standard. The GDPR states that consent must be freely given, specific, informed, and there must be an indication signifying agreement. Opt out boxes and pre-ticked opt-in boxes will no longer do. It also requires distinct (‘granular’) consent options for distinct processing operations. Consent should be separate from other terms and conditions and should not generally be a precondition of signing up to a service. Only where existing permissions do not meet GDPR’s higher standards or are poorly documented, will companies need to seek fresh consent, or identify a different lawful basis for processing. (See also the Article 29 Working Party Guidelines on consent as well as those of the ICO.)

    But another equally important law has to be carefully considered. Where organisations are processing personal data to send out direct marketing, PECR may also apply. PECR is 15 years old yet many organisations still fall foul of it. Failure to comply could lead to a fine of up to £500,000. When the E Privacy Regulation eventually replaces PECR, the fines will be in line with the GDPR, that is up to 4% of gross annual turnover or €20m, whichever is higher.

    PECR sets out the rules for sending direct unsolicited marketing to individuals and organisations using telephone, text, fax and email. Where such marketing is sent to individual subscribers, organisations must get their consent (unless they rely on the so called ‘soft opt-in’, namely where they have collected an email address in the course of a sale of goods or services, and give the person the right to opt out of marketing emails at the time and in future communications). There is no such restriction when marketing to corporate subscribers i.e. a company e-mail address, even if it belongs to an individual.

    The definition of marketing is very wide under PECR. Even sending an email asking someone to opt-in to receive emails or checking their marketing preferences is itself a marketing email. In 2017, Honda was fined £13,000 after the ICO found that it had sent 289,790 emails aiming to clarify customers’ choices for receiving marketing. The firm believed the emails were not classed as marketing but instead were customer service emails to help the company comply with data protection law. Honda could not provide evidence that the customers’ had ever given consent to receive this type of email, which is a breach of PECR. Flybe was fined £70,000 after it sent an email to 3 million individuals titled ‘Are your details correct?’ advising them to amend any out of date information and update any marketing preferences.

    Personal information on marketing databases and mailing lists is of two types. That which has been gathered through regular contact or consent with the individual and that which as been gathered by other means (including information scraped from the internet or bought). In each case the lawful basis for processing such data under GDPR has to be considered and, where it is being used for direct marketing, the PECR rules have to be complied with. Just firing off emails using standard wording may cause more problems than they will solve.

    About the Author

    Ibrahim Hasan is a solicitor and director of Act Now Training (www.actnow.org.uk) specialising in data protection law

    Source: https://www.lawgazette.co.uk/legal-updates/gdpr-and-those-emails/5066278.article

  • Sun, August 12, 2018 11:06 PM | Akriti Dayal

    Trade secrets claims are an increasingly common avenue companies are using to safeguard their intellectual property rights.

    Trade secrets litigation has grown as the digital age has made sharing information quick and easy. In addition, the Defend Trade Secrets Act, passed in 2016, raised trade secrets from simply a state law claim to a federal one.

    “Intellectual property holders are increasingly aware they have this tool in their arsenal,” Michael W. De Vries, with Kirkland & Ellis LLP in Los Angeles, told Bloomberg Law. De Vries has substantial experience representing clients in complex intellectual property disputes including patent litigation and litigation involving misappropriation of trade secrets.

    Life sciences and health care companies are among the industry sectors taking advantage of the trade secrets tool. Since the DTSA’s enactment a little more than two years ago, more than 70 cases out of the one thousand cases filed involved companies in the life sciences/health care sector, according to Bloomberg Law data.

    Some of the more well-known companies which have brought such cases are medical device giants Becton Dickinson & Co., Stryker Corp. and Fresenius Kabi USA and drug companies AbbVie Inc., Novartis Pharmaceuticals Corp., Par Pharmaceutical Inc., Shire Pharmaceuticals LLC and Teva Pharmaceuticals USA Inc.

    “With a good economy, workers have more mobility and people are taking things with them,” he said. “Companies are being more aggressive about protecting their trade secrets,” C. Bryan Wilson of Williams & Connolly LLP, said.

    One of the main factors behind the growth in trade-secret litigation stems from the enactment in 2016 of the federal “Defend Trade Secrets Act.” The DTSA created a private right of action in federal court for those who allege their trade secrets were misappropriated. Before the DTSA, such claims had to be brought in state court.

    “As a consequence, we’ve seen more cases that involve both trade secrets and patent protection,” De Vries said. “I view them as potentially complementary enforcement mechanisms.”

    Source: https://www.bna.com/trade-secrets-litigation-b73014477772/ 

  • Fri, August 10, 2018 8:01 AM | Akriti Dayal

    SAN FRANCISCO, Aug. 7, 2018 /PRNewswire/ -- ROSS Intelligence is changing the way attorneys are able to navigate through the cumbersome legal research process.

    ROSS Cofounder and CEO Andrew Arruda saw a need to change the delivery of legal services, and teamed up with his cofounders to bring the power of cutting edge Artificial Intelligence (AI) to the law. As a trained litigator, Arruda is uniquely suited to understand how natural language processing and machine learning can enhance the services law firms like Pierce Bainbridge deliver to their clients.

    By streamlining the legal research process, ROSS Intelligence's technology enables attorneys to find the most effective answers and arguments. Lawsuits are built on finding established legal precedents, and ROSS Intelligence delivers a plethora of on-point case law, regulatory and statutory information instantly. This is a revolutionary change. Before, lawyers had to spend endless time on legacy systems that were built from outdated technology. The result? Thousands of billable hours which clients no longer want to pay for.

    Pierce Bainbridge is the ideal candidate for such a partnership with ROSS. Renowned for its ability to handle complex legal matters fast and efficiently, Pierce Bainbridge has always sought the most cutting-edge technology. The firm has dedicated itself to improving the way law firms operate, and now, ROSS Intelligence is helping them take yet another unprecedented step forward.

    "Pierce Bainbridge is exactly the kind of firm that we have aimed to partner with as our next wave of litigation-focused competitive research tools are being released" said Andrew Arruda, CEO and co-founder of ROSS Intelligence. "By building off of our core natural language processing technology, we're now entering a new era of legal innovation, where nimble, technology focused firms can not only go up against, but in fact beat much larger law firms in bet-the-company litigation, on behalf of their clients. It's certainly an exciting time in law and an exciting time for the entire team at ROSS Intelligence as we build out technology that accomplishes the previously impossible."

    Not only is the ROSS software concise, it's also intuitive, setting it apart from outdated legacy research tools. It goes far beyond simple review and can handle high level advisory tasks and complex legal matters. This is truly AI at its best. Litigators using ROSS are immediately alerted of relevant information pertaining to their cases, from both published and unpublished law. Attorneys at Pierce Bainbridge were quick to see the huge value and potential. In the hands of skilled litigators, ROSS Intelligence's technology offers a decisive competitive advantage over opponents.

    While most legal research, and most law firms, are stuck in the 20th century, ROSS Intelligence launches firms like Pierce Bainbridge into the next level with its 21st century AI research technology. Clients have an immediate and distinct advantage both in and out of the courtroom when combining ROSS technology and a forward-thinking firm like Pierce Bainbridge.

    "Pierce Bainbridge prides itself on operating with the latest technology to achieve the highest efficiency possible," said John Pierce, founder and Managing Partner of Pierce Bainbridge. "As a former platoon leader in the U.S. Army, I know how important technological advantages like this can be when executed with precision. Our firm is consistently recognized as being the most intelligent and efficient in the practice of law, and much of that is because of our embrace of technologies like ROSS Intelligence."

    Source: Pierce Bainbridge

    https://www.prnewswire.com/news-releases/artificial-intelligence-is-the-new-hi-tech-game-changer-for-lawyers-300693001.html

  • Sat, August 04, 2018 2:00 AM | Akriti Dayal

    Pundits and legal industry watchers often describe law firms as laggards in directly adopting new technologies, but that trend is rapidly changing. The drive among law firms to raise client service levels and consider dynamic business models is encouraging adoption of business intelligence applications in law firms. As corporate legal organizations take back control of case management in an effort save money by relying less on outside counsel, their interest in business intelligence grows in parallel.

    To date, the legal industry has been relatively slow to incorporate business intelligence into their eDiscovery operations. The 451 Group survey of law firms and corporate legal teams captured a snapshot of the wants, needs and desires of legal and IT professionals who are involved in litigation and eDiscovery processes. The study revealed a desire for tools and capabilities to analyze data and report on performance metrics throughout the EDRM lifecycle.

    Fewer than half of law firm respondents reported that they are currently using automated reports or dashboards. In the same vein, fewer than 25% of responders across all roles said they have been using analytic reporting applications for more than 5 years. By contrast, 72 percent surveyed across all legal job roles polled ranked metrics visualization as important or very important. A wide gap exists across the legal space between the desire for business intelligence tools and structured implementation of the same.

    As with any cycle of adoption for new technology, early perceptions of the nature, costs and benefits of a new technology are mixed. The legal industry is becoming more sophisticated about applied data analytics, data mining, and business intelligence, but before adoption can broaden a few common misperceptions must be addressed.

    A few common misperceptions threaded through the 451 Groups survey responses. The following are four of the most common and interesting misperceptions and a dose of reality about each.

    Perception: It’s about technology; the right software package is the key

    What is BI, anyway? Respondents described BI in a variety of ways. About 49 percent of responders agreed that they would define BI as a “technology-driven process supported by actionable data to make data-driven decisions”. Another 15 percent referred to BI simply as “software to analyze raw data”. Gartner’s definition is a touch different: Gartner defines BI as the toolsets and processes that “enable access to and analysis of information to improve and optimize decisions and performance.” That broader lens includes a look at the ways data is gathered and interpreted, two crucial elements of successful BI program. Only 36 percent defined BI broadly as an integration of technology and best practices for the collection and presentation of business information.

    Perhaps unsurprisingly, between 70 and 80 percent of corporate business intelligence projects fail, according to research by analyst firm Gartner. In our experience, a successful BI program relies heavily on defining achievable objectives and gathering consistent (or normalizing) relevant data. Here is an easy starting point: focus on existing reports and discuss the business purpose of each. Discuss what each report accomplishes for you, then discuss data points you could use to improve. Test the process of gathering new desired data and gauge interest in your results. End-user buy in will help you drive process implementation.

    Perception: BI is only for strategy formulation by executives and partners

    Executives and business partners gain much from reports and visual dashboards summarizing eDiscovery consumption, invoicing activity, and measures of profitability.

    A successful BI implementation can, however, provide practical, actionable information to a wide array of users within an eDiscovery organization.

    Division or program managers may plan structured spending, project managers may check on production status and overall data delivery timeliness, and a senior associate might look at Relativity access levels for people on a review team. While needs vary, the ability to provide these and many other types of reporting are limited only by an organization’s ability to gather and present the relevant data.

    Perception: Our work is unique and reporting can’t be standardized

    Today, most legal teams – 63 percent of law firms surveyed – routinely load data from one or more sources into spreadsheets to track eDiscovery processing rates, review status, project schedules, budgets and other business processes. This manual practice is time-consuming and expensive. Every corporation, firm, practice, or individual has its own current reporting formats and practices, but huge time and cost savings are possible by standardizing and automating manual reporting. This can be challenging. Effective BI programs depend on normalized data, which requires gathering the same type of data points over time and across cases.

    Automated reporting can be challenging, but its benefits can absolutely be realized. A thoughtful BI process can pull key information from finance & accounting, project management, review, and other activities. The analytical and predictive power of that combined data is far more powerful than each type of data on its own. Consider structured procurement, for example. A corporation that gathers information about processed data volumes, hosting volumes, and even review can procure year-over-year and take advantage of purchasing at scale in a way that is not available to corporations requesting bids for one case at a time. BI programs evaluating standardized data points connect the important dots and provide actionable information to business decision makers across functions.

    Perception: BI is best suited for larger firms

    Mid-size and smaller organizations often believe that BI applications are complex, expensive, and therefore only within reach of larger organizations. That said, the ILTA 2016 Technology survey of law firms indicated that medium size firms were responsible for 47 percent of purchase activity in BI medium last year. They followed close behind the 53 percent of purchase activity by large firms. The value of BI to organizations of all sizes is becoming clearer over time.

    The leading platforms and technologies used in eDiscovery project management and review are compatible with business intelligence program development. Many eDiscovery document repositories are secure hosted applications with available APIs (application interfaces) through which BI architects can draw data. Mid-size businesses and law firms are increasingly finding that an investment in business intelligence can help them analyze their performance, predict their future, and make better decisions.

    Assessing the ROI of a Business Intelligence Portal

    It’s no secret that eDiscovery can be expensive. Cases with large document volumes drive up direct discovery costs, and the volume of data increases every day. Which costs do organizations track? In the 451 Group survey, 62 percent of responders analyze their Total Processing Costs. Total Collection Cost are analyzed by 58 percent and Total Review Cost by 50 percent. Fewer than 50% of responding eDiscovery consumers across all segments currently push to visualize their eDiscovery consumption in a holistic way. Without framing eDiscovery in a structured BI program, organizations cannot realize the available opportunities for cost reduction, structured spending, and process optimization.

    FRONTEO works with the director of practice support at a mid-size national law firm who recently implemented a BI portal that integrates eDiscovery project and schedule data, processing and costs, billable hours, and IT software licensing data into a single BI application. The firm reported immediate benefits of the litigation and eDiscovery BI portal that include:

    Faster, more accurate information for clients and for firm management

    Significant savings achieved on SaaS licenses, due to improved usage management

    Information driving decisions on staffing, service forecasting, and strategic eDiscovery-focused proportionality arguments

    Detailed cost tracking, informing more effective pricing of firm services

    Metrics on data volume enable strategic advice to clients on information governance, data retention, and litigation readiness

    The age-old method for making an informed decision about a new technology project is to calculate the return on investment. The benefits of accelerated access to information, data-driven decision making, and client service enhancements that may distinguish a firm or organization from its peers cannot be overstated.

    Source: https://www.lawtechnologytoday.org/2017/07/bi-in-litigation-support-and-ediscovery-weighing-perception-and-reality/

  • Fri, August 03, 2018 2:51 AM | Akriti Dayal
    • According to one investment officer, even if the ECB only lifts rates marginally, this would improve the profits of European banks, increasing the returns that investors make by holding stocks.
    • Nolting also said that apart from upcoming rate hikes, he still sees upside in bank earnings.

    Investor sentiment towards European banks could be about to change, an investment officer told CNBC on Wednesday.

    The sector was dumped by many market players in the fallout of the global financial crisis in 2008 and has yet to fully recover to pre-crisis levels. Litigation charges, overbanking and a high level of bad loans are among the biggest problems for Europe's banks — at a time when interest rates have remained low, thus limiting the room to improve their margins.

    However, the European Central Bank (ECB) is set to start tightening its monetary policy and increase rates next year amid improved economic fundamentals in the euro zone.

    According to one investment officer, even if the ECB only lifts rates marginally, this would improve the profits of European banks, increasing the returns that investors make by holding stocks.

    "It is one of our favorite sectors, believe it or not, because we think there's change coming," Christian Nolting, chief investment officer at Deutsche Bank Wealth Management, told CNBC's "Squawk Box Europe."

    "The ECB has said that, more or less, it won't do anything or much before the summer of next year. But I think there's a lot of discounting and if at one point in time, even if it's next year, the negative deposit rates are lifted, say at least a little bit, not to positive but at least a little bit, it's a signal for investors probably to put more money in."

    Market more selective, taking difference stance on sectors Sector dispersion in markets is increasing, says investor

    ECB President Mario Draghi said in June that it is unlikely to increase interest rates before summer 2019. At the moment, the ECB's interest rate on its main refinancing operations, its marginal lending facility and the deposit facility stand at zero, 0.25 and -0.40 percent respectively.

    The central bank was forced to lower rates in the wake of sluggish growth in the region in the wake of the sovereign debt crisis.

    Nolting also said that apart from upcoming rate hikes, he still sees upside in bank earnings. "We do see earnings moving up actually," he said.

    The latest and ongoing reporting season has brought some good news for European banks. UBS announced last week a net profit of 1.28 billion Swiss francs ($1.29 billion) in the second quarter, a 9 percent increase from a year ago. Credit Suisse beat expectations with second-quarter net income of $655 million.

    And the troubled Deutsche Bank surprised markets by reporting a net profit of 401 million euros ($468 million) for the second quarter of the year — much higher than initial forecasts, even though it was down 14 percent on the year.

    Source: https://www.cnbc.com/2018/08/01/european-banks-a-good-choice-as-ecb-prepares-to-lift-rates-strategis.html


  • Fri, August 03, 2018 2:23 AM | Akriti Dayal

    China is preparing to set up an internet court in Beijing to explore the capital's role in promoting the development of the internet economy and innovation, safeguarding internet safety and building the internet's governing system, news website fawan.com reported.

    The new court will uphold the principle of online disputes being handled through online lawsuits, broadly utilize internet information technology, and establish litigation procedures and judicial rules for new internet cases under the guidance of China's Supreme People's Court, the report noted.

    The court will also operate across geographies to make it more convenient for involved parties to participate in litigation.

    The establishment of the Beijing internet court will also draw experience from the nation's first internet court in Hangzhou, capital of East China's Zhejiang Province, according to the Xinhua News Agency.

    China opened the court in Hangzhou last August to cater to the increasing number of online disputes.

    Source: http://www.globaltimes.cn/content/1113397.shtml

  • Fri, August 03, 2018 2:08 AM | Akriti Dayal

    Could the GDPR give rise to foum shopping and are there any pre-litigation strategies that should be considered? Here, we review four key elements that should be kept in mind in respect of data class actions in the EU.

    Damages

    In the US, many class actions are dismissed for lack of 'standing', i.e. because the litigants do not demonstrate that they suffered an 'injury in fact' that is concrete and actual or imminent.

    Does the US 'injury in fact' standard apply for data class actions in Europe?

    Under the GDPR, data subjects have the right to recover both material damages and non-material damages (Article 82).

    Hence, in the event of liability, all damages which have been caused by the data protection infringement have to be compensated.

    This extended liability is remarkably different to the current legal situation under many Member States' data protection laws.

    Quick glance at France: the data class action12 may be used to put an end to an infringement of the provisions governing the protection of personal data.

    The law expressly specifies that this class action cannot give rise to compensation in the form of damages.

    It is a purely injunctive form of collective redress.

    Yet, this position may evolve in the future as a bill is currently being debated and provides for the creation of a compensatory data class action1.

    Quick glance at Germany: on 24 February 2016, a new German Act entered into force aimed at strengthening consumers' data privacy laws2.

    Among other things, it adopted the mechanism called “Verbandsklage”.

    This is a representative action enabling qualified entities, e.g. consumer protection organisations, to bring an action against companies and individuals violating data privacy laws.

    It only enables organisations to claim for cease-and-desist judgments (injunctions).

    So, current claims for damages must be brought by individuals.

    The existing “Verbandsklage” does not provide for collective compensation, but may be a door- opener for large-scale lawsuits in Germany.

    The GDPR does not set forth any criteria for the assessment of the recoverable damage and leaves it to the applicable national laws.

    So Member States use their own national standards to determine whether the litigants have 'standing' and whether hypothetical, future or even anxiety damage may be compensable for instance.

    Article 82 of the GDPR is intended to act as a deterrent, making data protection breaches economically unattractive.

    Furthermore, the case-law of the Court of Justice of the European Union concerning non-material damages must be taken into account.

    According to the case law, the amount awarded should have a deterrent effect.

    This goal can only be achieved if the amount of damages awarded reaches a sufficiently significant level.

    Burden of proof

    Under the GDPR, the controller is responsible for ensuring and demonstrating that its processing activities are compliant with the provisions set out in the GDPR as well as with the laws of the Member States implementing the said Regulation.

    The controller must implement appropriate technical and organisational measures to ensure as well as to be able to demonstrate that processing is performed in compliance with the GDPR (Article 24).

    The controller must keep records in writing – including in electronic form – of its processing activities and make the records available to the supervisory authority on demand (Article 30).

    The controller must record and document all personal data breaches – comprising the facts relating to the personal data breach, its effects and the remedial action taken.

    These records must be disclosed to the supervisory authority on demand (Article 33).

    The GDPR imposes a strict liability regime on controllers: from the moment that a violation is recorded, compensation will be automatic.

    Data subjects can bring an action without having to prove any fault or negligence on the part of the controller.

    The burden of proving that it is not responsible for the event giving rise to the harm (i.e. the processing of personal data is performed in accordance with the GDPR and the national laws implementing the GDPR) falls on the defendant controller (Article 82).

    Controllers have to meet the new data protection requirements and must be able to demonstrate that the processing of personal data is performed in accordance with the GDPR and the laws of the Member States.

    So it is of critical importance for the controller to keep records of all measures, actions and elements likely to evidence compliance with the GDPR.

    Controllers must treat the GDPR's accountability mechanisms as pre-litigation strategy, designed to create documentation to show that the defendant applied appropriate technical and organisational measures.

    Territoriality

    The broad territorial application of the GDPR, and the choice of forum it provides to the data subject, could give rise to forum shopping and multi-jurisdictional collective actions, including European and non-European data subjects.

    The GDPR applies to:

    businesses that are established in the EU and process personal data (Article 3(1));

    businesses that are established outside the EU if they process the personal data of EU residents when offering them goods or services or when monitoring the behaviour of EU residents (to the extent that such behaviour occurs in the EU) (Article 3(2)).

    Businesses not currently subject to the Data Protection Directive may become subject to the GDPR if they offer goods or services to EU residents or monitor their behaviour.

    Proceedings against a controller or processor may be brought by the data subject before:

    the courts of the Member State where the controller or processor has an establishment; or the courts of the Member State where the data subject resides (Article 79(2)).

    This choice of forum may lead data subjects to bring individual and class actions in a specific Member State to benefit from the differences in the national laws (e.g. 'injury in fact' standard, compensatory actions, compensation of material and non- material damages).

    Quick glance at Austria: on 1 August 2014, an Austrian law student, Maximilian Schrems, filed a lawsuit against Facebook Ireland Ltd before the Vienna court based on allegations that Facebook's practices would breach privacy laws in numerous ways.

    In order to initiate a so-called "class action", Max Schrems created a website to invite any person having suffered the same alleged violations of their rights to join the lawsuit.

    On 12 September 2016, the Austrian Supreme Court referred two preliminary rulings to the Court of Justice of the European Union.

    On 25 January 2018 (case C-498/16), the CJEU found that Article 16(1) of Regulation 44/2001 could not be read as creating forum for claims that are assigned to Mr. Schrems.

    The CJEU explains that the exclusion from assigned claims is necessary for the attribution of jurisdiction to be predictable, which is one of the objectives of the Regulation.

    Discovery

    The GDPR does not create a pre-litigation discovery process.

    Yet, it sets forth some provisions requiring controllers to disclose evidence proving compliance with the GDPR.

    This may enable data subjects to build their case before filing a claim.

    The GDPR provides data subjects with a comprehensive right to access their own personal data through a subject access request (Article 15).

    The controller must respond to the subject access request within one month of receipt of the request

    (Article 12) and provide the data subject with a copy of all personal data which the subject has made available to it.

    The GDPR expands the mandatory categories of information which must be supplied in connection with a data subject access request (e.g. information about the purposes of the processing, the categories of data being processed, the period for which the data will be stored) (Article 13).

    This allows data subjects to be able to verify the lawfulness of the processing of their personal data.

    The controller may refuse to respond to a subject access request if it is manifestly unfounded or excessive.

    But the controller bears the burden of proving the request is manifestly unfounded or excessive (Article 12).

    Companies should be prepared that data subjects will exercise their right to lodge a complaint with a supervisory authority to access the findings of the administrative investigation (Article 77).

    It is likely that the data subjects will use this information in the course of civil proceedings.

    Due to this approach, data subjects can easily create a presumption of a data protection violation, and an even greater administrative burden is placed on controllers.

    Companies must be able to demonstrate that processing is performed in accordance with the GDPR (Article 24).

    This evidence should refer to the general efforts the company undertakes to implement the GDPR in accordance with the law.

    Additionally, the evidence should display the measures the company implemented with regard to the respective claimant.

    For this purpose, the companies should establish a system for logging individual processing operations to be able to prove who had access to a given individual's personal data, and what actions were taken with regard to the data.

    Conclusion

    Given the diversity of procedural rules in European Member States and the GDPR's broad territorial scope, we can expect plaintiffs to conduct forum-shopping to find the best national courts for launching data class actions.

    The GDPR's accountability provisions require defendants to affirmatively prove that they deployed "appropriate technical and organisational measures".

    Data processing records should be designed with this pre-litigation strategy in mind.

    Plaintiffs will use data access requests and complaints to Data Protection Authorities to help build a litigation file.

    Source: https://www.lexology.com/library/detail.aspx?g=985f7a91-c20f-4969-88e3-2ade410bad0e

  • Fri, August 03, 2018 12:25 AM | Akriti Dayal

    Despite global trends pointing toward an increase in frequency and severity around intellectual property (IP) litigation, multinational companies today are falling short in managing the financial impact of their IP risks, according to Willis Towers Watson's WLTW, -8.43% Intellectual Property Litigation Risk Report. The report, based on a combination of IP litigation cost survey results and globally sourced litigation data, captures existing perceptions of IP litigation risk and encourages organizations to adopt an enterprise-level understanding of IP litigation's potential financial impact.

    The report points to several macro-factors driving IP litigation frequency and severity including a sharp spike globally in grants of IP rights, the growing use of trade secrets to protect innovation, an increase in technology-related mergers and acquisitions, greater mobility of IP and the evolution of traditional sectors evolving into hybrid technology sectors such as health tech and fintech. The report also noted geographic shifts underway influencing where litigation is filed.

    Key findings include:

    IP litigation in the U.S. is driven by patent infringement (5,200 cases annually), trademark infringement (3,900 cases annually) and copyright infringement (2,200 cases annually).

    The top three countries for IP litigation are China, the U.S. and Germany. China's frequency is steadily increasing with the number of IP cases filed doubling between 2013 and 2017.

    In evaluating severity, U.S. IP litigation remains the most expensive both in terms of litigation expenses and damages/settlement. For example, average damage awards in the U.S. can easily reach the eight-figure range; the highest damage awards in Germany are in the seven figures, and one of the busiest IP courts in China has reported average damage awards in the six figures.

    While 50% of respondents were most concerned about being sued in the U.S. for IP infringement, over 40% do business in China where the number of IP cases eclipses that of the U.S.

    In trying to quantify the impact of IP litigation, just over half of the survey respondents track what IP litigation is costing their company on a per-incident or annual basis.

    More than 50% of survey respondents agree that IP litigation costs could have a material impact on their businesses, yet less than 10% purchase IP insurance coverage.

    The report also offers a comprehensive analysis of the global IP insurance market noting that, while the market has historically suffered from lack of awareness, new entrants combined with more data and capacity are factors currently driving growth. IP insurance providers surveyed for the report indicated steady increases in interest for risk transfer products, with demand being led by insureds in the retail, technology (software and hardware) and health care sectors.

    "In reviewing the findings it's clear that, while many companies appreciate IP's value, they have not yet extended the IP management function to include IP risk management and, as such, have not quantified their own IP risk," said Kim Cauthorn, IP leader, Willis Towers Watson.

    "Additionally, we see various stakeholders including risk management, legal, finance and human resources all touching IP in varying capacities, yet we are not seeing a coordinated, comprehensive approach to fully managing IP risk itself. Instead, managing this risk tends to be siloed in legal, and research and development departments. As a result, the full context and benchmarking data are evading companies, preventing them from determining how much they truly spend managing various IP risks. This is a costly approach that leaves organizations vulnerable," Cauthorn added.

    A full copy of the report and a guide to help organization manage IP litigation risk can be accessed here.

    About Willis Towers Watson

    Willis Towers Watson WLTW, -8.43% is a leading global advisory, broking and solutions company that helps clients around the world turn risk into a path for growth. With roots dating to 1828, Willis Towers Watson has over 40,000 employees serving more than 140 countries. We design and deliver solutions that manage risk, optimize benefits, cultivate talent, and expand the power of capital to protect and strengthen institutions and individuals. Our unique perspective allows us to see the critical intersections between talent, assets and ideas -- the dynamic formula that drives business performance. Together, we unlock potential. Learn more at willistowerswatson.com.

    Source: https://www.marketwatch.com/press-release/as-intellectual-property-litigation-risk-rises-companies-fall-short-in-understanding-financial-impact-willis-towers-watson-report-2018-07-25

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