Tag Archives: commercial litigation

ILN Today Post

The SFO v ENRC: Erosion of fundamental rights and dangerous precedent or a valid aid to law enforcement?

Eurasian Natural Resources Corporation Ltd (ENRC) has been granted permission to appeal the controversial ruling in Serious Fraud Office (SFO) v Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 (QB)  which sent shock waves through the legal profession earlier this year.

The appealed decision held that certain documents generated during an internal investigation conducted by lawyers into allegations of bribery and corruption were not protected by litigation privilege, and therefore could be used by the SFO in the prosecution of alleged offenders. With corporations being encouraged to police their operations and to put in place systems to protect them from abuse, the decision was seen as unhelpful by some in that it might discourage openness within organisations and restrict access to legal advice.

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Veto rights in contracts: can they be exercised freely?

Parties to commercial contracts generally assume that the express written terms of a contact will be given effect relatively strictly under English law.

However, recent court decisions illustrate the courts’ willingness to look beyond the written terms of contracts and to imply unwritten terms in order to give effect to what they consider to have been the parties’ intentions.

Overview

In one recent case, the High Court decided that a clause in a share option agreement – which stated that the option could only be exercised with the consent of the board of directors of the granting company – did not give the board an unequivocal veto.

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Howard & Howard expands commercial litigation practice

Royal Oak, Michigan, February 21, 2017: Howard & Howard Attorneys PLLC is pleased to announce that Jason M. Schneider has joined the firm. He will practice out of the firms Royal Oak office.

Mr. Schneider focuses his practice on complex commercial litigation in federal and state courts. He has broad experience at the trial and appellate levels in areas such as commercial contracts, the Uniform Commercial Code, product liability, condemnation, and patent infringement. Before entering private practice, he gained invaluable experience by serving as a law clerk for The Honorable Jean C. Hamilton, a United States District Judge in the Eastern District of Missouri, and as an intern for The Honorable Charles E. Rendlen, a United States Bankruptcy Judge in the Eastern District of Missouri.

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‘I Agreed to What?’ – Federal Court Decision May Increase Scrutiny of Online Terms and Conditions

Can a consumer be bound by an arbitration agreement contained in online terms and conditions by merely signing in to an Internet-connected service? In a recent opinion that should strike a note of caution among businesses, a federal judge in New York held such an arbitration agreement unenforceable. This decision should serve as a reminder to businesses operating online to ensure that consumers are given clear, conspicuous notice of online terms and conditions, an opportunity – and encouragement – to review those terms, and, where possible, a manner of actively assenting to the terms.

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Jurisdiction Test for Foreign Defendants Continues to Narrow

In recent years, the century-old standard allowing courts to exercise personal jurisdiction over foreign defendants by showing that they were “doing business” in a forum state has been substantially limited.

Prior to the U.S. Supreme Court’s 2014 ruling in Daimler AG v. Bauman, courts required foreign defendants to maintain “minimum contacts” with a forum state, such that bringing the lawsuit in that state did not “offend traditional notions of fair play and substantial justice.” Accordingly, it had been established law in the Second Circuit, which includes federal courts in New York, that courts had general jurisdiction over a foreign corporation engaged in a “continuous and systematic course of doing business in New York” — by, for example, maintaining an office or employees in New York — regardless of whether the cause of action was related in some way to those activities.

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Best Practices for Legal Hold Notices

With a change in the Federal Rules of Civil Procedure concerning sanctions for destruction of electronically stored information (ESI), it is a good idea for companies to ensure that their form legal hold notices and protocols for distribution are in line with best practices.

A company should circulate a legal hold notice when an audit, investigation, claim, or litigation is reasonably foreseeable. It must be in writing and should be labeled PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT AND/OR ATTORNEY-CLIENT COMMUNICATION. It must state the reason for the legal hold and specify the types of documents, including ESI, that are relevant to the facts and circumstances that prompted the legal hold.

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Protecting the Attorney-Client Privilege While Using Third-Party Consultants

There can be no question that business and legal transactions have become increasingly multi-disciplinary and complex. Business executives and their legal counsel frequently seek guidance from a variety of external consultants, including outside accountants, financial advisors, executive benefits consultants, human resources specialists, insurance brokers, executive recruiters, and public relations advisors (especially in crisis communication situations). Can a company rely on the attorney-client privilege to protect the confidential nature of communications with these external consultants, or will the use of an external consultant constitute a waiver of privilege?

The attorney-client privilege protects communications between a client and counsel that were intended to be confidential and were kept confidential, where the communications were made to obtain or provide legal advice. In some circumstances, the attorney-client privilege may extend to non-lawyers consulted by internal corporate counsel and external counsel at law firms if the communications were made in confidence for the purpose of facilitating the attorney providing legal advice.

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Banking and Financing Adjust to New Economy 2015/12/30 16:12:23

In the Chinese mainland, the slowed economy has profoundly influenced banking and financing investments and the resolution of relevant disputes. On one hand, the speed of economic development decelerated from near 10 percent to 7 percent and the structure of the economy continues to undergo major government reforms. Accordingly, the driving factors of economic development were turning from resources, materials and investments to efficiency, green initiatives and innovation. On the other hand, through either trillions in stimulus packages, suspension of initial public offering (IPO) projects or other macro-control mechanisms, the government still plays a critical role in this new normal.

Considering these and other factors, banking and financing disputes reveal four fresh trends: complexity, expansion, quantification and crowded disputes. 

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HSBC, Barclays and RBS Currency-Rigging Settlement

A trio of banking groups along with BNP Paribas and Goldman Sachs have paid over $1.2 billion dollars in a class action settlement after they admitting to rigging currencies.

As a result of the outcome of the class action, it is expected that similar cases could be seen in the UK and across the world. 

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Volkswagen Set Aside Commercial Litigation Funds

Volkswagen has set aside at least £5 billion in an attempt to deal with any legal action that occurs as a result of the emissions scandal. The company could face collective action from shareholders and customers who purchased diesel cars with ‘defeat devices’.

Potential Litigation in European Market

Just under 500,000 cars are expected to be recalled after devices that told the car when it was being tested for emissions and when to reduce said emissions. The defeat devices, which were discovered in the American market has seen shares fall in the company by over 30%, however, it is unclear if the European market had the same devices attached, potentially creating a loophole regarding litigation.

Although the company has set aside funds, Environment Protection Agency (EPA) has warned that the violations since 2008 may run into 8 billion in fines alone.

A first class action against the Volkswagen Group was filed in San Francisco, with experts warning that further claims will likely follow in Germany and the UK. One of the top investors in Volkswagen in Europe said: “If we can with some certainty establish that we, as investors, were misled by the company, and that has affected our returns, then I cannot rule out that we would seek compensation from the company.”

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Launching collective claims in Britain is tougher than in the United States, with claimants being with a common interest to be automatically grouped together even if they did not opt in together. Opt-out class action lawsuits are being introduced on October 1. However, a case against VW in the UK could be painstakingly long.

If you require advice regarding commercial litigationcontact us today by getting in touch with our team of expert solicitors.

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