Blogs & News

  • Wed, August 01, 2018 5:51 AM | Akriti Dayal

    Growing number of lawsuits over ADA website accessibility

    Attorney Minh Vu on the rising number of lawsuits over websites that are not compliant with the Americans with Disabilities Act.

    Websites that are not accessible to people with disabilities have generated a record wave of lawsuits in connection with the Americans with Disabilities Act (ADA).

    The litigations allege that websites are not ADA compliant, according to one of the lawyers who crunched the numbers. More than 1,000 lawsuits have been filed so far this year, already surpassing those filed in 2017.

    “Everything is online now … and so it is very difficult to be able to do anything without being on a website and able to access it,” Minh Vu of the Seyfarth Shaw law firm told FOX Business Opens a New Window. ’ Stuart Varney on “Varney & Co. Opens a New Window. ” on Tuesday.

    The problem is the vast majority of businesses don’t have accessible websites, she said, and there are no federal regulations adopting web accessibility standards.

    “Everybody is kind of caught unaware and these plaintiffs’ lawyers are taking advantage,” she said.

  • Wed, August 01, 2018 5:49 AM | Akriti Dayal

    Mastercard Inc. reported an increase in profit in its latest quarter as the value of card transactions rose by about 15%, with Europe outperforming compared with other markets.

    The company set aside $225 million during the quarter for litigation costs with merchants in the U.S. and the U.K. Mastercard said $210 million of the money it set aside was for U.S. merchants.

    The Wall Street Journal reported late last month that both Mastercard and its competitor, Visa Inc., were near settling a lawsuit from merchants related to credit-card fees. A group of credit-card companies -- including Mastercard and Visa -- would pay around $6.5 billion to merchants.

    The credit-card company's profit rose 33% to $1.57 billion, or $1.50 a share, compared with $1.18 billion, or $1.10 a share a year earlier. On an adjusted basis, Mastercard reported earnings of $1.66 a share, beating estimates from analysts polled by FactSet of $1.53 a share.

    Net revenue rose 20% to $3.67 billion. Expenses rose 24% to $1.73 billion.

    Gross-dollar volume for the company's credit, charge and debit programs rose 15.3% world-wide to $1.48 trillion, beating analysts' expectations of $1.46 trillion. It rose the most in Europe, increasing 21.6%.

    Shares, up 41% year to date, fell 2.5% premarket.


  • Wed, August 01, 2018 4:55 AM | Akriti Dayal


    The Arbitration and Conciliation Amendment Bill, 2018 seeks to make a number of significant changes to the Arbitration and Conciliation Act, 1996.

    The Bill has been introduced following the recommendations of a High-Level Committee constituted by the Central Government under the Chairmanship of Justice (Retd.) B. N. Srikrishna. The mandate of the Committee was, inter alia, to examine measures to strengthen arbitral institutions in India and suggest ways to improve the efficiency of the arbitral framework in India.

    The overall intent of the Bill is laudable, but the Bill itself has a generous mix of the good, the bad and the ugly.

    Several provisions depart from the recommendations of the Committee and if accepted, would mark a regressive step in the goal to make India a global arbitration hub.

    A number of suggested areas of reform have also remained unaddressed. Some key issues with the Bill are discussed below:

    Highlight Changes

    The central feature of the Bill is that institutions are expected to replace courts fully in the procedure for appointment of arbitrators. As per the proposed amendments, if the Supreme Court or any High Court has designated an institution then that court does not have jurisdiction to entertain an appointment application under Section 11 of the Act.

    It is clarified that the amendments to the Arbitration and Conciliation Act that were introduced with effect from 23 October 2015 will be purely prospective, i.e., the amended Act will only apply to arbitrations, and court proceedings relating to arbitrations, if the arbitration itself was commenced after 23 October 2015. This is deviation from the position of law as recently settled by the Supreme Court, but provides welcome clarity.

    The Arbitration Council of India has been established as the statutory authority to identify and grade qualifying arbitration institutions to be considered for designation by the High Court or Supreme Court for appointment of arbitrators.

    The Good

    The proposed amendments recognise party autonomy in international commercial arbitration. Significantly:

    International commercial arbitrations (and domestic institutional arbitrations) are not bound by the arbitrator fees prescribed under the Fourth Schedule (subject to the exception mentioned below).

    The time limit for completion of the arbitration proceedings does not apply to international commercial arbitrations.

    The twelve-month time limit prescribed for completion of the arbitration proceedings will commence after exchange of pleadings is complete (for which a new time limit of 6 months has been introduced) even for domestic arbitrations. An arbitrator’s mandate can continue even after expiry of the time period pending the court’s consideration of an application made by parties for extension of time.

    In an application for setting aside an arbitral award, parties are restricted to proving their case by reference to documents produced in arbitration and on a plain reading, may not introduce any fresh evidence with their application. This curtails the scope of challenging arbitral awards and will promote finality of awards and greater respect for the arbitral process.

    A new, statutorily imposed requirement of confidentiality will now apply to arbitrations by default. However, there is some uncertainty regarding the extent to which confidentiality will apply to arbitral awards.

    The Bad

    It appears that only institutions which have a presence within their jurisdiction can be designated by a High Court (no such restriction placed on the Supreme Court). This may prejudicially affect smaller states which may not have an institution of repute.

    Institutions are to be graded by reference to infrastructure and “availability” within a jurisdiction. However, there is no reason why these factors are relevant if the only reason institutions are being referred to in the statute is to use them as appointing authorities rather than to administer arbitration.

    By deleting Section 6-A of the Act, there is presently no guidance available as to the scope of an institution’s enquiry while considering an appointment. Established institutions with substantial experience in acting as appointing authorities have devised clear rules as to their scope of enquiry. However, since there is no legislative clarity, this is likely to result in more litigation and will defeat the objective of speedily resolving applications for appointment.

    The proposed Arbitration Council of India is a purely government-appointed body. This significantly lowers its credibility, especially since the government is the biggest litigant in India.

    While the Bill makes provision for accreditation of arbitrators, the Act does not clarify the significance of such “accreditation”. It is not clear, for instance, whether only accredited arbitrators can be appointed by institutions.

    The Bill provides for introduction of the Eight Schedule which lays down qualifications of arbitrators. However, a notable omission in the Eight Schedule is foreign qualified lawyers. A plain reading suggests that they are not qualified to act as arbitrators even in international commercial arbitrations. This is not in keeping with current practices and will be a backward step in promoting international commercial arbitration.

    The Ugly

    There appears to be some inconsistency as regards the application of the Fourth Schedule to international commercial arbitration. Contrary to Section 11(14), Section 11(3A) suggests that if no arbitral institution is designated and the Supreme Court is called upon to act as appointing authority, then the SC is bound by the Fourth Schedule even for international commercial arbitration.

    The Chief Justice of a High Court has the power to review the panel of arbitrators. It is unclear whether this power also extends to reviewing panel of arbitrators maintained by an institution, which would have a significant impact on the autonomy of such institutions.

    Qualification of Arbitrators: The Bill is extremely unclear as to the significance of the Eighth Schedule. A plain reading of the Schedule appears to suggest that ONLY such persons who meet those requirements are qualified to act as arbitrators. However, when read with Section 43F, it suggests that the requirements are only relevant at the stage of accreditation. This ambiguity throws open the door for challenge to arbitration awards which may be rendered by arbitrators who do not meet these qualification requirements.

    It is unclear whether the ACI will be performing the role of accrediting arbitrators. A combined reading of the various provisions appears to suggest that they only need to identify professional institutions who can provide accreditation of arbitrators, and review this accreditation/grading when felt relevant.

    The Arbitration Council of India is expected to maintain a depository of all arbitration awards. It is unclear how this would interplay with the requirement of confidentiality (for instance, are parties to redact confidential information?) and how ad hoc arbitrations which do not come through the system even for appointment of arbitrators will be captured.

    Missed Opportunity

    The Act does not make any provision for emergency arbitration orders despite a specific recommendation to this effect and its prevalence in the present day.

    The Act has been amended to reduce the extent of court intervention in foreign seated arbitrations under Section 45. However, even as amended, the extent of court intervention is wider than that available for domestic arbitration. An opportunity was missed to harmonise the two or reduce the extent of court intervention in foreign seated arbitrations, which has been a frequently litigated issue that delays the arbitration process.


    As the Bill is pending consideration, it is hoped that some of the above drawbacks and ambiguities that plague the Bill in its current form will be resolved, and an effort made to harmonise the proposed amendments with the broader objectives of making India more arbitration-friendly and making the institutional arbitration framework more robust.


  • Tue, July 31, 2018 6:34 AM | Akriti Dayal

    The Middle East is on the cusp of change, driven not only by a tech-savvy young population, but also by the twin factors that are transforming the business scene: one, the impact of digitization of business, and two, the growing mergers and acquisition (M&A) activity witnessed by the region.

    Business consolidation is a norm in times of uncertainty. With protectionism serving as a change factor of global trade relations, businesses are looking at smarter ways to strengthen their operations and stay relevant.

    They seek increased synergies through mergers and acquisitions, with M&A activity currently experiencing a significant spike in the region. But with M&A comes the inevitable challenge of change. And in times of uncertainty, the resounding question for employees will always be ‘what will happen to me?’.

    During change, leadership must keep in mind that employees are learning to deal with a whole new business identity, often new management and new systems, whilst overcoming fears of potential restructuring and even job loss.

    Research shows that in a merger, employees spend on average two hours per day worrying about the impact of the merger rather than performing their work. It only takes simple math to estimate the cost of this loss of productivity for an organization. Considering this potential effect on productivity level, how can you avoid putting your merger at risk?

    This is where change management becomes an imperative function of the business. It is unrealistic to keep everybody happy during the complexities and turbulence of a merger but what you can do is prepare your people for the path ahead.

    Some of the key elements for leaders to focus on should be planning, communication, managing expectations, talent retention and speed. And the first few months of the transition are the most important.

    Before announcing the deal, ensure you offer a united leadership with clear governance and direction. The outcome of the pre-deal culture due diligence will help highlight any merger-critical differences.

    Next, establish thorough communication and integration strategies. Communicate your vision, facts, values and integration plans clearly and through different forums. Engage with people at all levels as often as possible. Including reasons and rationale behind decisions will help pull people in the same direction.

    Be vocal and transparent about change. Too many leaders try to buy loyalty by saying that there will be no changes. This is never the case and statements like this will have huge impact on management’s credibility.

    Make it a priority to prepare people for change early on. Offer training around anticipating and dealing with change, especially to managers as they play a key role in promoting your vision and helping their teams deal with integration challenges. Encourage employees to turn change into an opportunity and to set own goals for growth and development.

    People have a great capacity for change but often need clear directives and urgency. Make the tough decisions and take action early on so each individual can plan around the changes. It is uncertainty and ambiguity that cause the highest stress levels.

    The most common complaint by employees during M&A integration is “Why are they taking so long?” Aim for closure after nine to twelve months. A non-decisive and slow approach to integration is high-risk. The consequences are often sagging morale, people leaving and again, productivity falling.

    On average companies lose four out of ten managers in the first 24 months of a merger. And the best people are often the first ones to leave. It is important to remember that people are in many cases the most valued part of an M&A deal. And also, that those who leave join and strengthen your competitors.

    Therefore, identify key talent early then ‘re-recruit’ using merger-specific reward incentives, higher salaries, new responsibilities and tasks.

    M&A activity is an extreme example of organizations needing more fluidity and more delegated power for quicker decision-making. Be proactive rather than reactive and adopt an entrepreneurial, fast and highly communicative management style.

    For the Middle East region, there are other cultural factors in addition to corporate culture that must be taken into consideration. The traditional family-business model is changing, and mergers and partnerships mean hierarchies of management are also transforming, impacting both employees and owners.

    If I can offer one piece of advice for the full potential of a merger, it would be to not just to cope with change as it happens, but to actively prepare for and then conquer it quickly and transparently.


  • Mon, July 30, 2018 6:37 AM | Akriti Dayal

    Much is made — not least on this very website — of the crucial importance of measuring, disclosing and addressing the increasingly pressing risks posed to businesses and their supply chains from climate change and the ongoing shift towards a low carbon global economy. And rightly so.

    Yet it would be naïve to paint climate change as the only major environmental business risk companies face. After all, as many businesses are now acutely aware, plastic pollution, the issue throw into the glare of global consumer attention by Sir David Attenborough on the BBC's "Blue Planet 2" documentary series last year, presents a huge, pressing problem for companies to grapple with.

    Over the past six months, there has been an endless slew of plastic straw, cup and bottle commitments from corporates, spurred in part by policy pledges and regulatory consultations from both the U.K. government and Brussels.

    Just last week, for example, Coca-Cola GB announced a partnership with Merlin Entertainments to offer half-price tickets to the latter's U.K. theme parks in exchange for punters handing in used plastic drink bottles for recycling. The summer trial will see on-site reverse vending machines installed at the entrances to Alton Towers, Thorpe Park, Chessington World of Adventures and Legoland Windsor in which people can deposit empty 500ml bottles and receive a 50 percent discount on their tickets in return.

    Another corporate, EY, also announced plans to stop providing single-use plastic and paper cups across all of its U.K. offices, switching instead to reusable alternatives. Alongside previously announced plans to phase out plastic cutlery and catering utensils, it forms part of the professional services giant's goal to shift all of its offices away from single-use plastic by the end of 2018. Achieving the overall goal is expected to reduce consumption of single-use plastic items by 7.7 million pieces or 57 tons each year.

    It also follows U.S. food service giant Aramak's pledge July 24 to reduce its use of plastic straws by 60 percent by 2020, accounting for a cut of around 100 million plastic straws a year.

    Despite these and many more high profile commitments from corporates, though, far from all businesses recognize the importance of the trend and are taking decisive action.

    Despite these and many more high profile commitments from corporates, though, far from all businesses recognize the importance of the trend and taking decisive action.

    Yet as a new report from environmental law group ClientEarth makes clear, businesses face serious material business risks from their involvement in creating plastic waste, and should therefore take action to guard against potential legal, reputational, transitional and physical fallouts.

    "With the amount of plastic waste literally choking our marine environment, there are serious risks for companies that don't move fast enough in responding to the business risk associated with plastic waste," warned the report's author, ClientEarth wildlife lawyer Tatiana Lujan. "Governments are acting really quickly on regulation and companies in general are unprepared. Within the space of a few months, we've already seen outright bans on single-use products and higher recycling targets as well as proposals for new taxes and expensive 'polluter pays' type schemes."

    As a result, regulatory changes arising from the transition to a more circular economy are set to hit unresponsive companies with new laws that will have major impact on demand for plastic products and materials, potentially ramping up business costs. This is not a hypothetical concern. Earlier this year, the share price of European packaging producer RPC fell 15 percent amid fears of potential packaging regulations. As more companies follow the lead of the likes of EY, Aramak and Marriott and actively slash demand for single-use plastics, manufacturers of such products are seeing once-reliable revenue streams disappear.

    Physical risks also dovetail with an environmental incentive to tackle plastic waste, as polluted environments can disrupt supply chains, infrastructure and productivity. This potentially can have knock on impacts on major industries, as illustrated, the report noted, by the potential impact of plastic pollution on fishing and tourism industries.

    That's before even considering the reputational damage to companies which fail to take strong enough action on plastic pollution in the eyes of their customers, a situation which can put off investors, hit share prices and even result in a company losing its license to operate. Moreover, as the rise in litigation against companies over climate change has shown — much like legal wrangles over the health impacts of tobacco in the past — corporates increasingly could face legal challenges from parties which have suffered loss or damage from plastic pollution.

    Yet even for those companies which do take action, in their rush to make headline-grabbing pledges to ban single-use plastics, there is also a danger of giving too short shrift to the details of how plastic waste policies should be enacted in practice and what their wider impacts might be. In switching from plastic to biomass-based straws and bags, some firms have faced questions about whether their well-intentioned moves actually could have a worse impact on climate change.

    In switching from plastic to biomass-based straws and bags, some firms have faced questions about whether their well-intentioned moves could have a worse impact on climate change.

    All in all, although potential solutions are undoubtedly complex, the sudden rise to prominence of the plastic waste crisis should increase pressure on businesses to work with their suppliers to develop strategies that are as low risk as possible, ClientEarth argued. And given the green NGO has been such a major thorn in the side of governments around the world in the courtroom — most famously in the U.K. on air pollution — it is perhaps a warning worth heeding.

    So how should businesses address the myriad risks they face from plastic waste? As a first step, companies should seek to measure their plastic footprint, assess the associated risks they face and develop a template for accurately reporting and disclosing them. Then, of course, action plans should be set out to reduce the use of avoidable plastic in business practices and supply chains in order to guard against future shocks down the line.

    clientearthCredit: ClientEarth

    Just as Lord Stern's 2006 report explained how the global economy had failed price in the cost of greenhouse gas pollution, Lujan argued the world also has failed to adequately price in the economic cost of plastic pollution.

    "Currently, plastic waste is an externality for most companies, with society and the natural world bearing the burden of plastic pollution," she said. "Little thought is given to things like packaging once the product it contained has been consumed and profits generated for its creator. However, this is changing and plastic-intensive companies need to be prepared for transitional, reputational, physical and legal risks from their involvement in the plastic pollution crisis."

    It remains to be seen quite when a future deluge of plastic pollution cases winds up in courtrooms, but prudent businesses already will be working to ensure it is not their brands which end up in the dock, with their reputations all washed up as a result.


  • Fri, July 20, 2018 2:46 AM | Akriti Dayal

    Legal issues are often at the back of an entrepreneur's mind in the excitement of launching a startup. But just because you are small doesn't mean that people are going to let things slide when you infringe upon their trademark or don't tell the full truth to investors.

    This guide is going to introduce you to the dumbest legal mistakes early startups make. And how to keep the personal injury lawyers away.

    Not Having LLC Member Agreements

    Apparently, 30% of businesses are more likely to succeed with more than one founder. But you need to know who owns what. What is everyone responsible for? What if a cofounder decides they want to leave?

    You need processes for all these things. It's impossible to take someone to court when it was never defined what everyone's role in the company was from the beginning. Cofounder fights are notorious for getting nasty, so make sure you have a formal agreement from the start.

    Choosing the Wrong Corporate Entity

    There are many different types of companies you can set up. Some come with tax and legal advantages. They also come with restrictions. And this is a decision you have to make a careful judgment over. Be aware of what each company type demands from you.

    Furthermore, be aware that if you wish to seek massive growth and venture capitalist investment, a Delaware C-Corp is the only option. Without this, most investors won't consider you.

    Failing to Keep Proper Records

    The phrase piercing the corporate veil is a term that states a founder of a company could become personally liable for a business's debts if they failed to keep their corporation separate from their personal affairs. The only way to actually prove that you've done this is to keep accurate records.

    Every transaction should have a record, and those records should be backed up multiple times.

    Using Someone Else's Name

    One of the dumbest mistakes you can make is to use someone else's company name. Many entrepreneurs do this all the time because they don't put any effort into checking if that name is taken. The full extent of their mistake dawns on them when they receive the inevitable 'Cease and Desist' notice.

    They then have no choice but to change their name and start from scratch all over again. Regardless of when this happens, it's going to cost you a lot of money.

    Comingling Accounts

    The act of comingling accounts is something early startups are notorious for doing. If you are still setting up a business account, this may be inevitable, but do it for too long and your personal assets could become a target if you are forced to pay out for unpaid corporate debts later.

    Plus, it's difficult to keep track of what transactions are coming from where. This is where admin gets tricky and it becomes impossible to see what's personal and what your business transactions are.

    Not Protecting Intellectual Property

    Your business is formed based on your ideas and product concepts. Without these, you are nothing. The startup world isn't always a fair world. Companies have stolen the ideas of startups before. And the truth is they can get away with it simply because there were never any protections in place.

    Without intellectual property protections, anyone can steal your products and there's nothing you can do about it.

    Failing to Take into Account Employees

    It may be some time before you actually decide to take on employees. This is fine, but when it does happen you must have the right protections in place. For a start, you should have agreements with your employees regarding whether they can start side projects and whether they can reveal your ideas and trade secrets.

    You also have to have firm agreements regarding hours and pay. Even the nicest employee could turn around and sue you later.

    Whenever you sign one of these contracts, don't just place your name on it. The contract should also have your position and role within the company.

    Think about State Laws

    There are many Federal laws regarding the governance of companies. But there are also many state laws you may forget to take into account. You don't have to read the entire legal code regarding businesses, but some simple Internet research should bring up the main issues you have to take into account.

    State laws include things like taxes, dismissing employees, hiring policies, and other such things. You can feel free to do this as and when issues crop up, but make sure you do it.


  • Fri, July 20, 2018 12:13 AM | Akriti Dayal

    Adoption of Cloud computing continues to gain momentum, impacting every segment of the technology and legal worlds. But with this high-profile trend comes high-profile risks. Transitioning all or part of your firm’s e-discovery functions to the Cloud requires navigating often complex issues with the potential to affect your firm’s security, business continuity and compliance, while potentially exposing clients to unnecessary liability.

    Cloud computing is a rapidly evolving area of the technology industry that can enable legal technology practitioners and law firms to expand their capabilities and do more with fewer budgetary resources. The Cloud provides access to elastic computing and processing power that can fuel everything from traditional productivity applications, such as word processing, personnel management and presentation development, to sophisticated business applications, including data mining, sales automation and content management. With its robust capabilities, the Cloud can also serve as a platform for social media, web conferencing and video streaming.

    “For all its quantifiable cost- and time-saving advantages, unleashing the power of cloud computing involves a degree of risk that should not be underestimated by anyone responsible for its management, mitigation or oversight.”

    Not surprisingly in view of its burgeoning popularity, IT industry forecasts predict strong increased growth in all segments of Cloud services in the next three years, including IaaS (Infrastructure as a Service), PaaS (Platform as a Service) and SaaS (Software as a Service).

    Even Federal Government agencies known for a conservative approach to new technologies are seeking ways to leverage the power of the Cloud. The Federal Risk and Authorization Management Program, known as FedRAMP, will standardize the security assessments of Cloud products and services across government entities in order to avoid unnecessary duplication and deliver significant savings. Clearly, as adoption expands to every part of the legal landscape, Cloud computing moves closer to becoming a widely accepted solution in both mid- and large-sized law firms.

    The promise of Cloud computing lies not only in its potential – represented by vast amounts of computing power and storage – but also the cost-efficiencies associated with a scalable system that utilizes shared or virtual resources to deliver long-term, sustainable economic benefits. In the Cloud, each user can access the capacity and processing power required to handle the peaks and valleys of demand, but without requiring the large capital outlays to address peak demand ebbs and flow.

    Key e-discovery factors to consider as your organization transitions to the Cloud include:

    Information Governance and Litigation Preparedness

    • Security and Data Protection
    • Storage and Privacy Issues
    • Data Integrity
    • Discovery Review and Production
    • Cloud Service Providers and Contracts

    For all its quantifiable cost- and time-saving advantages, unleashing the power of Cloud computing involves a degree of risk that should not be underestimated by anyone responsible for its management, mitigation or oversight. Due to the legal issues involved, addressing risk in the Cloud often draws in a company’s counsel and senior IT managers, all of whom must be knowledgeable about the hidden issues that can create problems – or even a crisis – at a later date.

    The risks associated with Cloud computing can be especially apparent during e-discovery (identifying and securing electronic data as part of a legal action), an area of peak vulnerability for both law firms and clients. This single process can encompass security, data privacy, cross-border legality, compliance and business continuity.

    Information Governance And Litigation Preparedness

    Any discussion of the Cloud needs to begin with information governance policies; the procedures used for the classification of data, data retention, legal holds and data collections. As a result, traditional IT practices now must address the new information landscape and the obligations associated with being the ultimate custodians of electronically stored information (ESI). Under the Federal Rules of Civil Procedure (FRCP), a party to litigation is expected to preserve and be able to produce electronically-stored information that is “in its possession, custody or control.” Cloud computing may well add a layer to the mechanisms used to preserve, collect and produce ESI, but these complexities do not absolve any party of its responsibilities.


    • Cloud Software as a Service (SaaS)
    • The capability to use the provider’s applications running on a Cloud infrastructure.
    • Cloud Platform as a Service (PaaS)

    The capability to deploy end-user-created or acquired applications using programming languages and tools supported by the provider.

    Cloud Infrastructure as a Service (IaaS)

    The capability to provision processing, storage, networks, and other fundamental computing resources where the end user is able to deploy and run arbitrary software, which can include operating systems and applications.

    As such, IT department managers and compliance officers need to work together with counsel to ensure the technology, policy and procedures in place will consistently safeguard any confidential or privileged information. Additionally, Security and IT department managers should involve counsel in fine-tuning IT policies and procedures. This allows counsel to formulate a plan should they need to preserve ESI; issue legal holds during discovery; or collect data to respond to an investigation, litigation, dispute or inquiry that demands protection of confidential or privileged information.

    However, enforcing business policies and procedures to achieve compliance across these offerings varies by industry requirements i.e., Sarbanes- Oxley, HIPAA (Health Insurance Portability and Accountability Act), and PCI-DSS (Payment Card Industry Data Security Standard). Sound information governance policies and procedures, user education and other measures are critical for managing the costs of achieving key compliance measures and allowing a law firm and its clients to effectively respond to e-discovery requests.


    With news headlines announcing breaches of online security with stunning regularity, it’s not surprising that security is perceived as the number one barrier to Cloud computing’s wider adoption. Yet, according to one research study, while 78% of business and organization leaders recognize that security and data privacy are part of their responsibilities, 22% are unaware this is part of their role.

    One way to bridge this gulf is to enforce a robust security program that includes strict firewall and access controls, data encryption, perimeter scanning, and intrusion detection. Best practices involve limiting access permissions to inside and outside counsel or authorized personnel involved in the processing, hosting, review and production of the data. This may also extend to paralegals, litigation support or e-discovery specialists, as well as database or system administrators.


    Where the data actually resides can significantly affect eventual e-discovery, and the physical location of data storage is fundamental to evaluating Cloud providers. The first question to ask is whether the Cloud will involve unique dedicated storage area networks (private cloud) or shared pools of storage capacity (public cloud) that may be dispersed to different geographical locations throughout the world. The latter approach can mean that a law firm’s client data is shifted to various parts of the globe at the convenience of the data-hosting provider to manage their own internal capacity.

    While this may benefit a law firm’s client from a capacity-management standpoint, it may also expose them to needless liability due to previously unknown copies of data. That, in turn, can compromise the client’s ability to adhere to data privacy laws, respond to e-discovery requests or orders to produce ESI within the client’s possession, custody or control.


    Once data security and storage are addressed, Cloud computing must then be viewed from the perspective of data integrity – the identification, preservation, collection and destruction of the data itself. These discussions often begin with the underlying source of the electronically stored information (ESI).

    At times, this ESI will be viewed through the lens of more traditional or well-understood forms, such as email and e-files stored on the company’s servers, file shares, laptops or mass storage devices. But ESI can also refer to Cloud data storage, SaaS applications, Cloud email, social media, personal mobile devices and other systems hosted by the Cloud provider. It is important to remember that Cloud data sources will be viewed as identical to client data during e-discovery, regardless of the fact that the data is stored on third-party systems.

    The latter sources represent a higher level of complexity, risk and technology hurdles. Take, for example, online messaging, like Twitter, Facebook or blog posts – or Extensible Mark-up Language (XML)based documents or emails that are in a constant dynamic state and subject to change via continuous user interaction. These are far different challenges, and a client may be asked to defensibly testify the data and underlying metadata was not subject to spoliation (i.e., the willful destruction or failure to preserve evidence) at any point in time.

    Clients may also need to be able to assure data integrity of social media and other Cloud sources during an order to preserve, collect and produce data. To do so, the evidence must be authenticated and, in the majority of cases, that means the files, emails and underlying metadata must be kept intact.


    The ability to load data and metadata intact is vital to transferring data from the initial collection point to the destination system being used for e-discovery review and production.

    Typical e-discovery data loads involve using what are referred to as load files that contain metadata and “tagging” information (i.e., field value coded by user to provide additional context or categorization). There’s been an industry-wide effort to create a standard XML format for e-discovery review and production can be accessed at

    Unfortunately, technical snafus or issues in the Cloud such as systemic failures, DNS incidents or security breaches don’t result in a free pass when meeting regulatory or opposing counsel’s request for data to be produced in accordance with a systematic process. In the Cloud--as elsewhere--it is always best to protect privileged information proactively, as an ounce of prevention can significantly protect your client.


    The written agreement with your Cloud service provider contains important provisions that protect you and your clients in four key areas:

    • Security
    • Notification
    • Data integrity
    • Business continuity

    However, like any legal contract, the language should be reviewed thoroughly as certain aspects of “the fine print” can surprise even veteran IT and legal professionals. As a baseline, your Cloud service provider should communicate in clear, concise terms what will occur in the event of a security or contact breach or data-loss incident. The Cloud service provider must offer a mechanism and/or specific assistance that can help you extract and transfer the data (and metadata) in a format that is useful for e-discovery at an acceptable cost.

    The two areas of greatest concern in your provider agreement are getting the data and getting back online. Common industry terms that refer to business continuity planning include Recovery Point Objective (RPO) and Recovery Time Objective (RTO). RPO is the time necessary to restore the client data or address the data loss, while RTO is the time it will take to restore the service after an outage. IT and Legal need to work together to implement a contingency plan for any potential prolonged service disruption.

    When leveraged properly, the Cloud can deliver significant business and efficiency benefits to law firms and their clients. Best practices and standards are emerging that will further increase Cloud computing adoption in the legal industry as well as in others. 


  • Wed, July 18, 2018 4:13 AM | Akriti Dayal

    Digitalization is the inevitable future of M&A for companies looking to acquire aggressively for growth and profitability

    In the 21st century, businesses are all about achieving growth and are constantly battling under pressure of growing faster and better. The C-Suite of companies often hear the words from senior management ‘increase shareholder value’, ‘growth’, ‘expansion’, ‘higher profits’ etc. to achieve financial stability, wealth maximization and gain competitive advantage over its business rivals. The constant pressure to achieve the optimal market share pushes them towards corporate transformation projects and M&A’s.

    It is a well-known industry fact that given the high number of M&A’s pursued, over 60% of them fail to create any value. In spite of this staggering figure, most executives go ahead with deals as they fear that the risks of not doing anything are just as high.

    M&A failure and why?

    M&A failures can result due to a myriad of reasons, the often-cited examples are cultural integration issues, poor due diligence, negotiation errors, lack of involvement of owners, lack of clarity etc. But the core problem of M&A failures remains lack of discipline and control over the deal during the integration phase and the lengthy M&A cycles which typically ranges from 15 to 20 months from the date of announcement to full operational integration. During this extended phase often driven by regulatory requirements, most deals fail to reach their milestone during to impending complexities.

    Disciple and Control: In most M&A transaction of large enterprises have teams working across the globe with data that is localized. Common mediums of data sharing, requires teams to hold regular meetings and update the deal manager and senior management regularly. The error of human element can lead to miscalculation on the time needed for each phase of the deal along with

    Lengthy Deal Cycles: Deals often take too much time to materialize due to a number of developing factors and this can put a significant strain on the financial and strategic goals with which the deal was taken up. A higher than anticipated cost of acquisition, and the loss of key management personnel, key customers and realization of fewer synergies are among a few of the inherent problems that a delayed deal cycle can cause.

    Digitalization of deal process, integration and synergy creation

    Digitalization of the M&A process is the means to an end and the solution to curb the lacuna in the industry plagued by constant failure rates. A solution lies in a one platform or tool that can help put all the phases from M&A strategy creation to due diligence, transaction execution and integration. Most deals survive the entire breath of the deal cycle and fail at the milestone phase of ‘Post-Merger Integration’.

    Some of the key problems with deal implementation that jeopardize the outcomes from a deal that are commonly seen are:

    Lack of a standardized M&A process within a firm

    Most entities go through several deals without a standard process or template. With every new deal the processes have to be drawn out from scratch. The learnings from one deal are also seldom documented. The need of the hour are well established best practice models which are time tested which will help save time and effort on deals that are time critical.

    Lack of security and confidentiality

    2018 has been a record setting year for data breaches and hacks. The importance of cyber security especially when two companies merge cannot be over emphasized. A data breach before, during or after a deal can cost the companies significantly in terms of penalties, charges and inevitable loss of reputation in many cases. The financial losses thus incurred can cause a severe disrupt in the total value creation of the deal. Having data across different work streams only makes it more susceptible to hacks and leakages.

    Lack of visibility on deal progress

    Senior Management and the teams do not have visibility on where the deal stands at each stage and if they are closer to completion of the task. Risks and issues that arise during the cycle go unnoticed causing bottlenecks through the deal cycle.

    Difficulty in tracking deal performance

    Deal performance is often not measured against the strategic goals, thus resulting in difficulty in synergy creation. Without benchmarking the performance without real time data on fingertips senior management is in no position to take tactical decisions during the course of the deal to ensure that things don’t go out of hand.

    Lack of a centralized tool or platforms

    There has been an onslaught of various tools that aid and help in the M&A process but with inherent drawbacks, as a multitude of tools can potentially further cause inconsistency as data is now available on inconsistent data environments.

    Digital platforms available in the industry today caters to these aforementioned points which are unique needs of M&A. MergerWare in one such platform which provides end-to-end deal management solution, ensuring that all gaps in the current M&A process is filled.

    M&A with automated tools

    Automation in any business segment, comes with the fear of job losses. However, automation in M&A would still need human elements working on cross functional teams which require complex thought processes. Automation would indeed make the M&A cycle so efficient that the team can put its focus on areas that necessarily need the human touch, such as cultural integration. It can also help the organization focus on strategic goals and daily operations without driving away managerial focus from spending extended periods of time on the implementation of the deals.

    Digitisation of M&A will help companies change the outcome of their M&A, “believes Dharmendra Singh, CEO Mergerware. “Companies that are bogged down by the failure rates can now be assured that with their systems in place, it will bring more successes, higher deal volumes and have a positive effect on growth.

    Every year the global deal values have grown substantially. As 2018 is stands to be another watershed year for M&A, automation can be embraced to serve as the panacea of most problems leading to better outcomes, healthier synergies which can drive successful companies and can change the global landscape of M&A and business.


  • Wed, July 18, 2018 4:03 AM | Akriti Dayal

    Litigation funding has been growing in prominence in recent years, and up-and-coming litigators need to ensure they are up to speed on what is becoming an increasingly influential factor in the market, as TheJudge’s Verity Jackson-Grant explains

    In its simplest form, litigation funding involves a specialist funder financing some or all of (typically) a claimant’s legal fees incurred in a dispute, in exchange for a share of the damages. If the case is successful, the funder will recover their investment plus a success fee. If the case is unsuccessful, the funder will lose its investment.

    With more than 25 established funders in the market, the products are increasingly diverse, whether clients are seeking case-specific funding, portfolio finance for multiple cases or the monetisation of their claim to provide working capital for operating or other purposes.

    The mainstream market caters for high-value cases (where cost/damages ratios are estimated to be at least 1:10) but there is a limited market for smaller matters, provided the damages are sufficient to discharge the funder’s investment and success fee while leaving the lion’s share for the client.

    When seeking funding, it is prudent to request adequate funding to trial as it may be difficult to obtain further funding if the case merits have changed. The funder may also seek a higher success fee for additional capital.

    Success fees are often expressed as a multiple of the investment, a percentage of damages, or the greater of the two. Terms vary significantly but claimants that have searched the market have more bargaining power than ever to negotiate the most competitive terms.

    According to Essar Oilfields Services v Norscot Rig Management [2016], you may be able to recover the cost of funding in English Arbitration Act cases if funding was necessary to bring the proceedings and where you can demonstrate the terms were reasonable, for example, by showing you sought multiple quotes to find the best deal.

    Some funders profess to be a one-stop funding shop, but this is rarely the case. For example, TheJudge works with a different pool of funders for monetising £100m+ awards than for case funding of £1m-£10m. Similarly, we work with different funders for funding of less than £1m. Funder selection can also vary by case type and jurisdiction. It is beneficial to approach a selection of (the right) funders at the outset rather than sequentially, as a funder’s refusal to offer terms may taint the views of other funders.

    While funding may seem the obvious solution when seeking ways to manage legal fees, claimants should not overlook the use of litigation insurance to complement, or as an alternative to, a funding arrangement. Insurance is available for own fees and disbursements as well as adverse costs. Alternatively, insurance can be tailored to indemnify the lawyer for a percentage of their fees when engaged under a damages-based agreement, to protect their fee realisation. Insurance is usually the most cost-effective route to remove the litigation risk from a cost budget, where cashflow is not the primary concern.

    We strongly recommend lawyers to be conversant with both insurance and finance options to put all clients in a fully-informed position. We have seen many examples recently of poor or limited advice being given, in particular to corporate claimants, about their risk management options. Whether an impecunious or a financially-sound client, numerous options exist to help manage the budget or create flexibility over relinquishing equity from the claim.

    About the Writer

    Verity Jackson-Grant is director of business development at TheJudge.


  • Tue, July 17, 2018 7:13 AM | Akriti Dayal

    Mergers and acquisitions activity has been riding the crest of a wave for the last two years or so; a number of factors combined to help lift M&A numbers out of the post financial crisis doldrums. Shareholder activism has been on the increase, driving organisations to divest units or sell themselves entirely. Mega-mergers have re-emerged, repositioning themselves near the top of the corporate agenda. Companies are again keen to spend billions of dollars consolidating their business or entering new industries and locations. Distressed M&A has also re-emerged as a viable opportunity as companies, particularly in the energy space, have endured a turbulent period.

    Cross-border M&A, too, has remained robust. 2014 enjoyed a substantial boom, with cross-border deals worth more than $1 trillion announced. This activity held strong throughout 2015, although it began to falter somewhat in the first quarter of 2016 owing to difficulties permeating the global economy.

    While the strong run of robust M&A activity was always likely to come to an end, in the second quarter of 2016 that cross-border M&A finally flagged. Brexit and a number of other economic and geopolitical uncertainties dampened activity, according to a new report from Baker & McKenzie. With global and economic issues looming large, the question of how cross-border M&A will fare going forward is a pertinent one.


    In 2016, cross-border activity has been something of a mixed bag. Although value rose by 14 percent in Q1 2016 versus Q1 2015, deal volume fell 10 percent. Both value and volume globally were down significantly on Q4 2015; however, this was to be expected given that the final quarter of 2015 was the busiest quarter of a record year for M&A. Yet Q2 2016 did not see a recovery in terms of value or volume. Headwinds held back dealmaking in many locations.

    The slowdown affecting the Chinese economy has been a big issue facing the cross-border deal market. Another is that fact that oil prices, although recovering somewhat from their nadir of 2015, are still down considerably from where they have been. Political headwinds have also remained strong – particularly the UK’s EU referendum, which loomed large on the horizon for months. The decision taken in June to the leave the union has only served to increase confusion and consternation. The decision of when to even trigger Article 50 of the Lisbon Treaty is still a source of debate, with suggestions that the process may not even begin for a number of years. Such uncertainty does nothing to alleviate tension surrounding the UK economy.

    Other geopolitical issues around the world have had a similar effect on deal flow. The controversial nature of the US presidential campaign, in the run-up to national elections, has played a role in dampening M&A activity. How the election result will affect dealmaking after November remains to be seen. Elsewhere, the failed coup attempt in Turkey and upheaval across the country gave investors reasons to pause before entering the market via M&A.

    Megadeals failed to materialise in the first two quarters of 2016. Deals worth $5bn and above, compared with the same period in 2015, were down markedly. H1 2015 saw 21 megadeals struck, with a total value of $296bn. The 18 deals agreed in the first half of 2016 were worth 23 percent less, at a value of $228bn. Q2 in particular saw a remarkable drop in megadeal activity, with just three deals completed at a value of $29bn.

    According to Baker & McKenzie’s report, stalled dealmaking was largely caused by volatility permeating the global markets. The firm’s index, which tracks quarterly deal activity using a baseline score of 100, dropped to 176. This represents a decline of 33 percent from the same period last year and a 17 percent drop from Q1 2016. Furthermore, the figure recorded in the second quarter 2016 was the lowest since Q3 2013. The data suggests that 1320 cross-border deals were announced in Q2 worth $214bn – a 4 percent drop in volume and a 45 percent drop in deal value compared to the second quarter of 2015.

    “Headwinds held back dealmaking in many locations.”

    “After a record year in 2015, there’s no question that Brexit, political uncertainty in the US and elsewhere, a subdued macroeconomic environment globally and other factors have weighed on deal makers’ confidence,” said Michael DeFranco, chair of Baker & McKenzie’s global M&A practice. “Even with this though, we continue to see high volumes of deals – just fewer of the mega transactions – and many multinationals are continuing to make acquisitions in support of their long-term strategies.”


    The Chinese economy is in a state of flux. The days of breakneck GDP growth are over, and efforts to re-tool the national economy continue at pace. Accordingly, Chinese firms are launching more cross-border deals than ever before. The second quarter of 2016 saw 97 outbound Chinese deals worth a total of $40.7bn. Compared with 2015, the number of deals seen in Q2 2016 climbed 23 percent and the total value of deals was 132 percent higher during the same period, according to Baker & McKenzie’s report. Activity involving China has escalated quickly, rising to prominence in a global context. In the second quarter of 2011, Chinese M&A accounted for only 1.1 percent of the global total, compared to 6 percent for the most recent quarter.

    In light of the country’s slowing economy, with local opportunities scarce, Chinese companies have been mandated by the government to pursue deals overseas. According to data from Bloomberg, since Chinese premier Li Keqiang first advocated the new ‘going out’ policy, China’s dealmaking ambition has helped to swell the volume of outbound deals to $157bn by mid August 2016, a figure far outstripping 2015’s full-year record of $109bn.

    Chinese banks are also in on the act. Limited domestic lending has encouraged them to focus on cross-border opportunities. The government has tasked China’s banks with financing the burgeoning spending spree; state banks have arranged $19.9bn worth of global syndicated loans for M&A this year. As a result, the banks’ share of that market has jumped to 4.4 percent from 0.9 percent in 2015. Top tier and latterly second tier Chinese banks have become active in the financing of outbound M&A transactions, with many secondary banks using the experience and willingness of Chinese companies to acquire foreign assets as a means of developing and expanding their own investment banking divisions. Given this support, we may continue to see Chinese companies aggressively pursue overseas assets.

    Well recognised Western brands and advanced technologies are likely to remain key deal drivers. Baker & McKenzie’s report notes Chinese companies focused heavily on investing in technology. In Q2, 15 deals worth $17bn were announced in the tech space, alongside 17 deals worth $4.8bn in the industrial sector.

    Q2 also saw Chinese interest in mining return to the fore in the Americas. Chinese acquirers completed four deals in the region worth $4.4bn. Though Canadian acquirers have been the most prolific in the mining industry for some time, Chinese dealmakers have now become the biggest spenders, completing 22 deals worth $8.7bn in the first half of 2016. Among the high profile transactions in this space was China Molybdenum’s acquisition of the niobium and phosphates businesses of Anglo American in Brazil, in a deal worth $1.5bn, announced in April. The company followed this transaction by acquiring, in May, a 56 percent stake in Tenke Fungurume Mining for $2.65bn.

    Chinese buyers have also been particularly active in Europe. In the second quarter of the year, Chinese industrial products and services company Midea Group’s offered to acquire German-listed industrial automation company KUKA for $4.3bn. Also making headlines was the purchase of Dutch-based NXP Semiconductors’ Standard Products unit for US$2.8bn by private equity firms Beijing Jianguang Asset Management Co. (JAC Capital) and Wise Road Capital Management.

    For some, the emergence of China as a buyer of overseas assets may be the catalyst for renewed dealmaking activity. According to data from Credit Suisse, Chinese companies bought up non-Chinese assets at a startling rate in the first half of 2016, spending a new annual record of around $144bn. Whereas US acquirers were the previous drivers of M&A activity in Europe and much of the world beyond, Chinese acquirers are set to be even more influential in the second half of the year. For European deals in H1 this year, 18.5 percent of acquirers were Chinese, more than any other country. Indeed, Mr DeFranco, believes that Chinese buying activity will continue to develop despite the turbulence evident in the global economy. “I suspect that Chinese outbound M&A will be a driving factor for M&A in the year ahead and be a key part of global transactional activity,” he suggests.

    European misgivings over the expansion of Chinese interests, particularly in the tech sector, are evident. As developing technology passes to Chinese hands, a number of European policymakers have expressed concerns. One deal that raised eyebrows was the acquisition of a 94.55 percent stake in Germany’s Kuka AG, which is a major force in the country’s industrial sector, by Chinese appliance giant Midea.


    China’s push into Europe has been part of notable shift of global dealmaking activity toward the continent. Deal value in Europe totalled around $400bn by the end of July and could, by some estimates, reach around $800bn by year-end – an impressive figure no doubt. However, 2016’s dealmaking activity, should it live up to this estimate, will still be down, year on year, by around $200bn. One of the key contributing factors to this drop off is Brexit. Though the timing of Britain’s exit from the European Union is currently unknown, as is the nature of its future relationship with the bloc, one thing is clear – Brexit will have a significant impact on global M&A. Indeed, estimates from Baker & McKenzie’s Global Transactions Forecast suggest as much as $1.6 trillion could be erased from global M&A activity over the next five years.

    Conversely, although there has been much doom and gloom around dealmaking activity in a post-Brexit world, the UK itself has attracted a rather surprising amount of inward investment since 23 June. Following the referendum result, the UK saw 54 inbound deals worth around $38bn, which flies in the face of claims that it would become an unattractive destination for deals. The decline in the value of the pound has opened doors to overseas acquirers. Opportunistic deals such as SoftBank’s acquisition of Britain’s ARM Holdings Plc and AMC Theatres’ acquisition of the Odeon & UCI Cinemas Group, could be a sign of things to come, as dipping valuations of British companies, and even distress in certain sectors, create attractive propositions for overseas acquirers.

    Looking ahead

    To be sure, the global economy has endured a troubled couple of years. Economic and political uncertainty has permeated key global markets yet, until very recently, deal activity remained resolute. In 2016, a combination of factors, some of which were considered unthinkable such as Brexit, has slowed not only cross-border M&A activity in the first half of the year, but all dealmaking.

    Regardless, we should expect to see cross-border transactions continue throughout the second half of 2016 and beyond. There is a good chance China will likely lead the next great wave. Though some of the players may have changed, cross-border M&A is here to stay.


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