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

    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 (Administrator)

    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 (Administrator)

    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 (Administrator)

    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 (Administrator)

    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.


  • Sat, July 14, 2018 7:10 AM | Akriti Dayal (Administrator)

    Artificial intelligence (AI) is virtually everywhere. But forget about Alexa, self-driving cars and those pesky pop-up ads that follow you around the Internet. Think litigation tools.

    As the legal profession adapts to changes in the marketplace—from evolving technology to a declining demand for services and competition from a growing number of non-traditional legal providers—more law firms are looking for alternative ways of doing business.

    Demand growth for law firm services was “essentially flat in 2017,” according to the “2018 Report on the State of the Legal Market,” issued by the Center for the Study of the Legal Profession at Georgetown University Law Center and Thomson Reuters Legal Executive Institute. “This continues a seven-year pattern (with the exception of a brief uptick in 2011 and a slight negative turn in 2013). It stands in stark contrast to the four to six percent annual growth in demand experienced in the legal market prior to 2008,” the report states.

    Over the past few years, there has been “mounting evidence that law firms that proactively address the needs of their clients—e.g., by implementing alternative staffing strategies, pursuing flexible pricing models, adopting work process changes, making better use of innovative technologies, and the like—can achieve significant success,” the report concludes.

    Clients’ higher expectations and tighter budgets at firms also are forcing improved productivity and efficiency to maintain a competitive edge. But that’s easier said than done at small and mid-size, budget-conscious law firms.

    The ABA’s 2017 Tech Report notes a “troubling” technology gap between large firms and small firms in hardware and software, IT staff and assistance, training, and overall resources. Fifty-eight percent of solo firms and 40 percent of firms with two to nine attorneys reported that they did not budget for technology.

    However, there are glimmers of hope. The number of AI products in the marketplace suited for litigation purposes, such as machine-assisted research, document review and analysis tools for trial preparation, is greater than ever, providing myriad opportunities to make it easier and more affordable for smaller and mid-size firms take advantage of innovative technologies.


    Nearly 700 legal technology startups are currently listed the blog of Massachusetts lawyer, writer and media consultant Robert J. Ambrogi, who tracks websites and products related to the legal profession. He says that the legal profession “is a significant market that is ripe for innovation and disruption, and so is alluring to many entrepreneurs” and that “[t]he price of innovation is cheap, in that virtually anyone with a good idea and a laptop can bring a product to market.”

    Ambrogi, however, predicts that only a small percentage of the startups will stand the test of time, but the number of startups “attests to the variety and creativity of new products being brought to the legal market.”

    The ABA report noted that the most popular software being used by law firms is related to litigation support, available in 39 percent of firms that responded to its survey.

    AI for Litigation

    Among the many examples of AI litigation tools is LegalMation,™ which uses AI to automate key tasks involved in the early stages of litigation. It analyzes legal complaints and produces draft versions of answers and initial sets of written discovery in as little as two minutes. Its website claims that the application “shaves hours of attorney or paraprofessional time from each filed case, facilitating greater cost predictability and improved accuracy and productivity.”

    AI systems, such as that offered by ROSS Intelligence, leverage natural language processing to help analyze documents. ROSS is designed to improve the efficiency, accuracy, and profitability of legal research and firms using ROSS have reported a 30 percent reduction in research time and found 40 percent more relevant authorities, according to its website.

    Allegory automates “everyday litigation tasks, connecting your case from every angle” and helps manage transcripts and leverage deposition testimony.

    Similar to the way online retailers use predictive analytics to predict customer behavior, law firms can use analytics to predict how judges and courts rule and the precedents they rely on. “Learn how judges think, write and rule,” touts Ravel Law’s Judge Analytics.

    Premonition claims the world’s largest litigation database and mines data to find out “which lawyers win which cases before which judges.” Similarly, Lex Machina’s legal analytics reveal insights “never before available about judges, lawyers, parties, and the subjects of the cases themselves, culled from millions of pages of litigation information.”

    What About Ethics?

    To date, 31 states have adopted the duty of technology competence set forth by the American Bar Association’s Model Rules of Professional Conduct into their ethical rules, requiring that lawyers “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

    The version adopted by the New York State Bar Association reflected in Comment 8 of the New York Rules of Professional Conduct, however, slightly differs from the ABA model rule and states that attorneys should “keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information.”

    While some lawyers view integrating AI into their practice as a risky proposition and many are historically averse to change, others say that not integrating AI into a law practice in the not-so-distant future will not be an option.

    “Alexa, what’s a paradigm shift?”

    About the Author 

    Mario D. Cometti is a partner at Tully Rinckey in Albany, focusing his practice on civil and commercial litigation.


  • Sun, July 08, 2018 3:31 AM | Akriti Dayal (Administrator)

    Understanding the benefits and drawbacks of Litigation Funding

    Filing a lawsuit can be an expensive and time-consuming endeavor. The average lawsuit lasts between one to two years. Asides from mounting attorneys fees, litigation also often involves costs in order to move the case forward.

    The best way to pay for those costs is litigation finance.

    Although commonly misunderstood as a loan, litigation finance is actually a non-recourse investment into a lawsuit (similar to a contingency arrangement), and any repayment only comes out of the winnings of the court case. In situations where attorneys are not able to take cases on contingency, litigation finance acts as a bridge in which the plaintiff gets a contingency arrangement from a firm like Legalist.

    In todays legal marketplace, cases are often settled early and for too little, simply because the plaintiff lacks the resources to continue fighting. While getting litigation finance often means that you will give up more of your case than you would if you self-funded, it also helps to give you the warchest you need to win your case.


  • Sun, July 08, 2018 3:15 AM | Akriti Dayal (Administrator)

    The EU's General Data Protection Regulation (GDPR) went into effect in May, requiring all organizations that handle the data of EU citizens to comply with its provisions regarding collecting and using personal data. However, a majority of companies likely missed the compliance deadline, and many employees remain unaware of the policies needed to keep data safe.

    "Data privacy is a hot topic with GDPR going into effect," said Dave Rickard, technical director at CIPHER Security. "An awful lot of companies may not think they have exposure to it, but there are lots of variables in that."

    For example, one online retailer Rickard works with has many customers from the EU, but can't geolocate them from the website. Others don't work with EU citizens, but have data processing and storage facilities there, which are also subject to GDPR.

    GDPR will likely influence data privacy policies in other countries, Rickard said. However, cultural differences, particularly between the EU and US, may make this difficult.

    "In the EU people are very centered on the perspective that 'My name, my social security number, my passport information, everything that is PII about me, belongs to me. It's part of my individuality,'" he said. "Whereas in North America, people have long since taken the perspective instead that data is currency. There are so many business models that are built on it. Data is money."

    The majority of companies that need to be compliant with GDPR are not yet, Rickard said. "I'd say compliance right now is only at about 35% or 40% at the most," he said. "I think a lot of people are taking a wait and see approach."

    Some of the bigger players like Facebook, Google, and Amazon are going to be the canaries in the coal mine, Rickard said. "I think that they'll have actions taken on them first, and people are going to wait and see if the actual GDPR penalties play out the way that they've been published."

    Companies that fail to comply with GDPR will face a penalty of either 4% of their global revenue or €20 million, whichever is greater.

    Here are five types of policies that companies must ensure they have in place and have trained employees on in the age of GDPR, according to Rickard.

    1. Encryption policies

    Most companies lack policies around data encryption, Rickard said. "Most people who are data owners are unaware of whether their data is encrypted at rest or not," he added. "GDPR is big on encryption at rest."

    2. Acceptable use policies

    An acceptable use policy should covers things like what applications are allowed, what web searching and social media habits are appropriate for the business, and the potential threats to brand reputation, Rickard said.

    3. Password policies

    Passwords remain a common digital entry point into an organization for hackers. Even if, in the best case scenario, employees use complex passwords that are changed often and not shared, human error and carelessness can still put a business at risk. "One of the easiest ways to breach a company is to put somebody on the janitorial staff and go looking at desks," Rickard said. "People often have Post-it notes on monitors with passwords on them."

    4. Email policies

    IT should have an email policy in place that hardens systems and can detect spam and viruses, Rickard said. "The kind of information that can be disclosed via email should be spelled out very clearly," he added.

    5. Data processing policies

    Companies need to do data process flow mapping to see what data is being collected, how it's being processed, and who is receiving processed copies, Rickard said. "GDPR closes all those gaps," he added.

    Employee training is paramount for ensuring these policies are enforced, Rickard said. Raising awareness of the threat landscape and common vulnerabilities can help counteract human error.

    "Security awareness and training is the cornerstone of any security program," he added.

    About the Author

    Alison DeNisco Rayome is a Staff Writer for TechRepublic. She covers CXO, cybersecurity, and the convergence of tech and the workplace


  • Sat, July 07, 2018 3:06 AM | Akriti Dayal (Administrator)

    The General Data Protection Regulation (‘GDPR') took effect on 25th May, replacing the Data Protection Act 1998 (DPA) and the 1995 Data Protection Directive, from which the DPA stems. The Directive was implemented to enshrine privacy as a fundamental human right.

    The intervening years between the adoption of the Directive and its replacement by the GDPR have witnessed an exponential increase in the development and adoption of consumer technology. In two decades, connected devices have become so compact, user-friendly and powerful yet affordable that they are now ubiquitous. The proliferation of connected consumer technology has both fuelled and been fuelled by the wholesale adoption of the internet by the general public.

    This in turn has spawned a whole digital economy, in which personal information is a fundamental resource.

    Many web users have enthusiastically uploaded information about themselves into cyberspace, both knowingly through their engagement with social media, and unknowingly, by expressing interests and preferences in the course of online searches and commerce.

    At the same time, online businesses have eagerly harvested and found progressively more sophisticated ways of exploiting this personal data. Some of these techniques may be so subtle that the affected individual has no idea that the processing is taking place, nor any idea of the associated risks.

    Not that long ago, the most likely harm an online ‘over sharer' risked was being bombarded with unwanted advertisements, however, recent developments such as Cambridge Analytica demonstrate how times have changed. In an environment where ordinary people do not fully understand how their information is used by highly sophisticated and commercially-motivated online operators, the need for legal protection is readily apparent.

    The GDPR was introduced by the European Commission as a means of promoting the digital economy by increasing individuals' trust. The GDPR aims to enhance trust by granting members of the public choice and control over how their personal information is used. A critical element of control consists of making individuals' consent a prerequisite for the use of their personal data.

    However, as the online economy has matured, as have ways of circumventing genuine consent, such as pre-ticked boxes, indecipherable small-print and purported consent that is conditional for accessing a product or service.

    These practices have had the effect of eroding individuals' rights. However, the GDPR reverses the trend by specifying that consent must be freely given; there must be a genuine choice, not ‘take it or leave it'. Consent must be specific, rather than vague ‘catch-all' wording designed to grant a collecting business ‘carte blanche'.

    It must be indicated by an unambiguous, positive affirmation by the data subject. In other words, the individual must positively do something that indicates he or she consents to a particular processing activity, rather than their agreement being inferred from the fact that they have not objected.

    The GDPR does not always require consent where personal data is used. It includes a number of alternative grounds, for instance where processing is necessary for the performance of a contract with a customer, or where processing is necessary for legitimate interests pursued by the organisation collecting personal data, often relied upon by employers to process staff personal data. However, where organisations have no alternative but to rely on individuals' consent, for example, in the context of online profiling and marketing, those individuals must have a genuine, informed choice.

    The GDPR is not a revolution, but an evolution of the Directive; it includes the same principles and concepts, albeit updated in places and often more stringent, but there is a lot of common ground. Like the Directive, the GDPR imposes the requirements of ‘fairness, lawfulness and transparency' on organisations that process personal data, but the GDPR goes further in its efforts to grant individuals choice and control.

    As Brexit looms, the UK will need to demonstrate that it protects personal data to European standards if it is to avoid complicated data transfer restrictions with the remaining Member States. As a result, the UK is likely to have to adhere more closely to the GDPR, making compliance a more pressing issue for operators that collect and store large volumes of personal information to run their businesses. The GDPR is not Y2K; for businesses that process personal data, the challenge of data protection compliance is not over. It has just begun.

    About the Author

    James Castro-Edwards is a partner at Wedlake Bell LLP


  • Fri, July 06, 2018 3:28 AM | Akriti Dayal (Administrator)

    Understanding the benefits and drawbacks of Litigation Funding

    Filing a lawsuit can be an expensive and time-consuming endeavor. The average lawsuit lasts between one to two years. Asides from mounting attorneys fees, litigation also often involves costs in order to move the case forward.

    The best way to pay for those costs is litigation finance.

    Although commonly misunderstood as a loan, litigation finance is actually a non-recourse investment into a lawsuit (similar to a contingency arrangement), and any repayment only comes out of the winnings of the court case. In situations where attorneys are not able to take cases on contingency, litigation finance acts as a bridge in which the plaintiff gets a contingency arrangement from a firm like Legalist.

    In todays legal marketplace, cases are often settled early and for too little, simply because the plaintiff lacks the resources to continue fighting. While getting litigation finance often means that you will give up more of your case than you would if you self-funded, it also helps to give you the warchest you need to win your case.


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