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Examining Popular Lyrics Through a Criminal Law Lens

In a time where pop culture has so much influence on the way we think and act, a further examination of some of North America’s most popular lyrics poses concerns for how young minds are being shaped. Even as many of us belt out these lyrics with little thought about their content, a deeper analysis is necessary to determine their possible impact on society. In songs from artists ranging from Justin Bieber to Alt-J, concerning similarities can be seen, particularly on the subjects of assault and consent.

In “U.O.E.N.O” by Rick Ross, the following lyrics are cause for concern: “Put Molly all in her champagne, she ain’t even know it. I took her home and I enjoyed that, she ain’t even know it”. These lyrics not only represents a non-consensual drugging, but also hint at a likely sexual assault. If this were to actually happen, the result would (or should) be a charge under section 265 of the Criminal Code. While many will brush off such lyrics as simple “make believe”, their popularity reflects a dangerous indifference toward the dangers women face from the use of date rape drugs.

In Justin Bieber’s hit song “What Do You Mean”, he sings “What do you mean? When you nod your head yes but you wanna say no?” If Justin Bieber were to press ahead with sexual acts notwithstanding this knowledge, he would likely be charged with sexual assault. The actus reus would be met given that the victim’s subjective mind is a lack of consent. Moreover, given Justin Bieber’s knowledge of this lack of consent, the mens rea of the offence would also be established.

Another song worth mentioning is “Breezeblocks” by Alt-J, which includes the following lyrics: “She may contain the urge to run away but hold her down with soggy clothes and breeze blocks”. This passage sounds a lot like an assault. In fact, every aspect the offence of assault under the Criminal Code is made out in this passage. The perpetrator’s conduct involves the application of force, that force is applied against the victim, and the absence of consent is obvious from the victim’s urge to run away. If these lyrics reflected a real life scenario, the outcome of any criminal proceeding ought to be a conviction under section 265 of the Criminal Code.

The title of the song ‘Blurred Lines’ by Robin Thicke, is alone worrisome. This song, on the subject of consent, states “I hate those blurred lines. I know you want it. I hate them lines”. This promotes the idea that determining consent is a difficult task and that the signals received are not always clear. However, Canadian law has held that this “blurred line” is absolutely no defence, and that the mens rea of sexual assault is not only satisfied when it is shown that the accused knew that the complainant was essentially saying ‘no’, but it is also satisfied when it is shown that the accused knew that the complainant was essentially not saying ‘yes’. These lyrics are clearly inconsistent with the current state of the law, making it difficult to understand why they are they are still being promoted.

Finally, there is “Blame it on the Alcohol”, in which Jamie Foxx sings, “But she don't wanna seem like she easy. I hear you saying what ya wont’ do. But you know we probably goin' do”. The general theme of this song wrongfully promotes the idea that, where a person is intoxicated to the point where he or she is unable to say ‘no’, consent has somehow been established. As stated above, the law holds that the requisite mens rea exists even where the victim is essentially not saying ‘yes’. Similarly, a person who is unconscious, possibly as a result of excess alcohol consumption, can in no way consent to sexual activity.

The above analysis is not meant to suggest that the artists in question have committed, or necessarily even condone, the criminal acts described in these songs. At a minimum, however, the prevalence and popularity of these lyrics demonstrate a widespread inability to understand the concept of consent. These lyrics will continue to normalize assault and, more specifically, sexual crimes against women. While there are many other songs that attempt to raise awareness about sexual assault, one wonders whether these positive messages are lost in a sea of lyrics that seem to promote and even celebrate aggressive and illegal behaviours. The hope is that, with women’s issues increasingly coming to the forefront, popular artists will demonstrate greater responsibility and lyrics of the sort described in this paper will become a thing of the past.

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legalseat · 5 years

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Thirty Years Since Morgentaler

January 28, 2018 marked 30 years since the Supreme Court of Canada struck down Canada’s abortion laws as unconstitutional in R. v. Morgentaler. Since then, the road to legal, accessible, and safe abortion services has been a rocky one. In Manitoba, politicians from across the spectrum have resisted increasing access to abortions since the 1988 constitutional decision.

More recently, discussion surrounding abortion has become one that has focused on access and not of criminalization. Progress in Canada, although slow, has been made. Plan B or colloquially named the “morning after pill” (an emergency contraceptive pill) became available to the public without a prescription in 2005. However, those requesting the pill needed to fill out a form with personal information that remained at the pharmacy. In 2008, this requirement was removed. Similarly, Mifegymiso, aka the abortion pill has also seen a slow introduction into the Canadian health care system, specifically in Manitoba where access has been limited to certain sites. Manitoba and Saskatchewan are the only two provinces that do not provide full coverage for the pill. Under the current guidelines, free access is only available at HSC, Women’s Health Clinic or at the Brandon Regional Health Centre. Access for women outside of these major cities is limited and requires women to pay the full cost which is around $350. Currently, the pill costs around $300, and if you cannot afford that you can only access it at approved sites (in Winnipeg, HSC and Women’s Health Clinic).

The conversation at the political level regarding Mifegmiso seems to be heating up as we also saw a private member’s bill introduced by the NDP that would ban protestors from being with a certain distance from abortion clinics and hospitals in Manitoba. The current government did not support the bill because of the fear that it would infringe on people’s right to protest. Students have also been active in supporting increasing access, where just this week medical students advocated that access to Mifegymiso should be increased.

It seems as though it was a different generation where there it was dangerous to be providing services or advocating on behalf of progress for reproductive rights. Some may not remember an incident that took place in a St. Vital home on November 11, 1997. Dr. Jack Fainman, head of obstetrics and gynecology at Victoria Hospital, was watching TV when he was shot through the back window of his house. He provided abortion services. Although he survived his attack, this was a career ending incident for Dr. Fainman who was not able to practice again. The suspect of the shooting was never conclusively identified, but it has long been assumed that it was American anti-abortionist James Kopp. Kopp’s also shot and killed Dr. Barnett Slepian on October 23, 1998. He is also suspected of shooting two other Canadian doctors. The 1995 attempted murder of Dr. Hugh Short in Ancaster, Ontario and the 1994 shooting of Dr. Garson Romalis in Vancouver, which is considered the first attempted shooting of an abortion provider in Canada. There was also an attempt on an unnamed physician in Rochester, New York in 1997.

Kopp had received his master’s degree in embryology from Cal-State Fullerton and was a well-known anti-abortion advocate. He initially vehemently denied his involvement with Dr. Slepian’s muder however on November 20,2002 in an interview with the Buffalo News he confessed to the murder. He was tried and charged but claimed his intention was never meant to kill Dr. Slepian, simply injure him so that he could not continue providing abortion services. He continues to deny that he had any role in the Canadian shootings.

To be clear, the number of incidents of violence and disruption against abortion providers in Canada and the US has decreased substantially since the 1990’s which saw 8 murders of doctors and clinic staff and 19 attempted murder. Prior to the attack on the Planned Parenthood location in Colorado in 2015 that killed three people, the last attack was in 2009 on Dr. George Tiller, a member of the National Abortion Federation, who was assassinated in his church in Wichita, Kansas. Dr. Tiller was one of few US physicians who performed late term abortion. Dr. Tiller had been shot at once before in 1993 but had survived that attack. The last identified attack in Canada was in 2000 and once again against Dr. Garson Romalis, when he was stabbed in the parking lot of his medical practice. He survived but the suspect was never identified.

It has been 30 years since Morgentaler, and this brief post skims the Canadian history on how we have approached abortion. It seems as though we have come so far from the earlier days of frenzied anti-abortion protests. But have we?

Having spent some time working with an abortion provider in Winnipeg, I recognize clear signs that there remains a dark undercurrent for reproductive access. It is not only featured in the broken window that graces the front of the clinic, or the lack of attention directed at funding, but it is demonstrated in the anonymity of the location where the abortions take place. Just ask yourself, unless you have had to know, do you know where these services are provided? I can tell you it’s an iron orange door. Only accessible with a swipe card, and then you have to be buzzed into as small room, where you will then be granted access the clinic. There is no signage that directs you how to get there and even google requires more than your average search to find information about how to access the clinic. It seems like an oxymoron that as these clinics and advocates attempt to increase accessibility to these services, in order to ensure safety, they actually have to reduce their accessibility by making their locations difficult to find.

Certainly, Canada continues to make progress, and maybe when we celebrate Morgentaler’s 60th anniversary all women can too.

Links and References

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legalseat · 5 years

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An Attorney’s Guide To Finding, Retaining & Consulting Neurosurgery Expert Witnesses

Neurosurgeons, who specialize in the surgical treatment of diseases and injuries affecting the nervous system, are frequently called upon to consult and testify as expert witnesses in medical malpractice cases. Neurosurgeons may speak to the standard of care for cases stemming from misdiagnosis of brain tumors, mishaps in neurosurgical procedures, or strokes requiring surgical intervention. They can also be invaluable to many types of personal injury cases, including those involving cranial/spinal injuries, trauma related to motor vehicle accidents, and falls.

The scope of a neurosurgeon expert witness’ case review, expert report, and/or testimony will largely depend on the particularities of the injuries sustained as well as the circumstances of the case. In this post, we examine the best ways to work with neurosurgery expert witnesses.

When to Use a Neurosurgeon Expert Witness

Neurosurgical procedures can include spinal fusion, craniotomy, ventriculostomy, pallidotomy, trepanning, cranioplasty, anterior temporal lobectomy, laminectomy, thalamotomy, hemispherectomy, decompressive craniectomy, sympathectomy, bilateral cingulotomy, lobotomy, and more.

Cranial Injuries

Cranial (head) injuries can include an intracranial bleed (hemorrhage and/or hematoma), a concussion, or traumatic brain injury. For example, when a patient passes away after a delay in treating or diagnosing an intracranial hemorrhage. If the emergency room physician failed to perform the appropriate diagnostic tests, then of course, the first choice for an expert witness would be an emergency room physician to establish liability. Once liability is established, it is appropriate to retain a neurosurgeon to opine on causation and damages. A neurosurgeon can comment on whether or not an earlier diagnosis would have afforded the ability to evacuate the intracranial hemorrhage or hematoma.

Spinal Injuries

Spinal injuries can include a spinal fracture or spinal surgery complications (e.g., paralysis or foot drop). In a case that involves surgical malpractice, neurosurgery expert witnesses can speak to the standard of care for the surgery itself, any deviations in how the surgery was performed, as well as causation and damages. Other instances of spinal complications that a neurosurgeon can opine on include tethered spinal cords and congenital defects.

Stroke Cases

There are two types of stroke: (1) ischemic stroke, which is caused by a clot that develops in the brain, and (2) hemorrhagic stroke, which occurs when there is massive bleeding in the brain that causes pressure and resulting death of brain tissue. Neurosurgeons are not required to be consulted in every stroke case; a neurosurgeon expert witness may be appropriate for a hemorrhagic stroke when a large collection of blood collects underneath the skull forming a hematoma, or when ischemic strokes require a mechanical thrombectomy, a procedure that involves surgical intervention with a medical device that retrieves the clot to restore blood flow to the brain.

Fall Injuries

Not all fall patients require neurosurgical evaluation, however, in cases where a plaintiff falls and develops intracranial bleeding (bleeding within the brain), a neurosurgeon may be consulted to see if surgical treatment of the bleed is required. Selecting the right expert witness for a fall case will depend on the injuries and imaging that was conducted at the scene. If a neurosurgeon was consulted, a neurosurgery expert can provide a critical perspective on your case.

Motor Vehicle Accidents

Motor vehicle accidents are a great example of cases for which a neurosurgeon might not be the first expert witness that comes to mind, but could prove incredibly beneficial to the case. If a plaintiff in a motor vehicle accident case needs neurosurgical intervention as part of their clinical care, it would be helpful to have a neurosurgeon weigh in for damages, examine the care of the patient received, and comment on the patient’s prognosis. Another example could be a plaintiff who suffers from persistent lower back pain following a motor vehicle accident. In this case, a neurosurgery expert could perform an independent medical examination (IME) and confirm the plaintiff’s damages.

Informed Consent

Because the stakes of neurosurgery are much higher than in other specialties of medicine, informed consent is critical. Neurosurgeons treat very serious conditions and perform procedures that have a high risk of complications — complications that can happen in the absence of negligence. It is important for your neurosurgeon expert to have access to any documentation that details whether the treating surgeon discussed the benefits, risks, and alternatives of the procedure with the patient. If you’re able to prove that clear negligence occurred on the part of (1) the neurosurgeon during the surgery, (2) the hospital, or (3) the patient’s postoperative management team, then you have a strong case.

When a Neurosurgeon Expert Witness Isn’t Necessary

Knowing when you don’t need a neurosurgeon to review or testify as an expert can be just as important as knowing when to use one. In many cases, attorneys may find orthopedic spine surgeon expert witnesses to be just as helpful as neurosurgery expert witnesses.

Other than operating on the brain itself, in general, orthopedic surgeons perform many of the same procedures that neurosurgeons do when it comes to spine surgery. In a medical malpractice case, of course, the expert’s specialty is critical to the credibility of the testimony. But in certain personal injury cases, an expert orthopedic surgeon, or even an expert nurse, might be an excellent substitute for a neurosurgeon, particularly to discuss damages.

The Cost of a Neurosurgeon Expert Witness

If cost is a concern, retaining an orthopedic surgeon expert in lieu of a neurosurgeon might be the best move. Our 2018 Expert Witness Fee Report found that neurosurgery experts continue to be the most expensive expert witnesses in the country, with a “combined fee average” of $959.68. Neurosurgeons tend to be a bit more expensive than orthopedic surgeons (whose “combined fee average” comes out to $848.95).

If your case involves a procedure that can only be performed by a neurosurgeon, however, it makes sense to spend a bit more money for the right expert in order to avoid the case going to trial. “When it comes to neurosurgery cases, you have to invest in retaining the most qualified expert,” says Zachary Barreto, Vice President of Strategic Research at Expert Institute. “Because neurosurgical injuries are so catastrophic, they are worth the most money spending. If your case is strong, you will make that money back in a hefty verdict or settlement.”

Selecting the Most Qualified Neurosurgery Expert

Ultimately, what separates one neurosurgeon’s expertise from another is the number of surgeries they have performed.

Zachary Barreto, who has recruited neurosurgery experts for more than 200 medical malpractice and personal injury cases, encourages attorneys working on neurosurgery cases to look for neurosurgeon experts that have a track record of excellence performing the procedure at the heart of their case. “Sometimes, a neurosurgeon could be the head of a division at a prestigious medical center and not even see patients anymore, or only see them rarely. If you have the choice between a neurosurgeon with a prestigious title and less patient-facing time or a neurosurgeon who performs the operation in question one hundred times a month, then the surgeon who performs the procedure more is always the more qualified expert.”

John Lomicky, Market Response Representative and former Associate Director of Strategic Research at Expert Institute, also cautions attorneys to make sure the neurosurgery expert they retain is actively practicing not just medicine, but the particular procedure involved in their case. “If the surgeon you are looking to retain has avoided a particular procedure, make sure that their avoidance is coherent with your theory of liability. Perhaps the procedure at issue is too risky for a given patient group. On the other hand, it could be that the surgeon does not specialize in that particular procedure.”

According to Dr. Mariam Ghantous, a Medical Research Manager at Expert Institute with fellowship training in neuroscience and neuroimaging, an ideal neurosurgery expert witness would also be at least five years out of their fellowship training with experience doing medico-legal consulting. “I look for neurosurgery experts that have experience conducting case reviews and doing depositions so that I can give the attorney a combination of someone that is well-credentialed, academic, and familiar with how to comport themselves on the stand.”

In the case that you are choosing between two neurosurgeons with the same amount of experience performing the surgery at issue, determining the more qualified surgeon will come down to their academic backgrounds — Did one of the experts attend an Ivy League medical school? Which expert had the more prestigious fellowship? Has one expert published more than the other? These markers of prestige will help establish an expert’s credibility to a judge and jury.

Challenges When Recruiting Neurosurgeons

Research veterans at Expert Institute admit that it’s no easy feat recruiting the perfect neurosurgery expert witness.

The neurosurgical community is not as big as one might think. According to the American Association of Neurological Surgeons’ report on the neurosurgical workforce, there are only about 3,689 practicing, board-certified neurosurgeons that serve over 5,700 hospitals across the United States. In addition, because the neurosurgical community is so small, many neurosurgeons are not comfortable testifying against one another. “Often times, we’ll get in contact with a very qualified expert candidate, but once the candidate finds out who the defendant is, they say ‘I won’t go against that surgeon — we were in a fellowship program together,’ or ‘That surgeon directed my university program,’” recalls Zachary Barreto. As a result, finding neurosurgeons that are willing to engage in expert witness work involves contacting many top dogs in the field from across the country.

John Lomicky also notes that neurosurgery is a highly litigious area. Many neurosurgery experts find themselves fatigued by the volume of cases, and may have even found themselves targets of suits.

Selecting Relevant Medical Records

Some neurosurgery cases can include thousands of pages of medical records, rendering the determination of the most appropriate records to send for a neurosurgeon expert to review a daunting task.

Dr. Ghantous suggests focusing on the theory of liability. “If the liability is specifically related to the surgery, filter for the operative notes and anything leading up to the procedure, for example, if the patient was screened, or if the anesthesiologist said the patient was safe for surgery.”

Dr. Tuan Nguyen, a Medical Research Associate at Expert Institute with residency training in psychiatry and research experience in cognitive neuroscience advises, “A neurosurgeon’s hourly rate is very high, so a good practice is to have a nurse review the records beforehand and remove any unnecessary pages. If your neurosurgeon expert has to sift through irrelevant records or duplicated data, that is going to cost you more time and money.” Dr. Nguyen also suggests that neurosurgeon experts start with the operative notes and discharge summary to get an overview of the patient’s condition.

If you are unsure whether a neurosurgery case has merit and you are hesitant to hire an expert witness prematurely, Expert Institute offers medical record reviews and phone consultations with in-house MDs to screen for meritorious cases and determine the right expert(s) according to the case’s liability, causation, and damages.

Establishing a Strong Attorney-Expert Relationship

If you are considering retaining a neurosurgery expert witness, the most important aspect of any attorney-expert relationship is establishing a good rapport with your expert from the start. With neurosurgeons in particular, due to the nature of their work and the scarcity of experts in their field, they are incredibly busy. As a result, neurosurgeons are notoriously difficult to get in touch with, likely because they are inundated with patients.

When you are working with them, make sure to use their time wisely. Always be prepared with the proper medical files and questions to avoid wasting time — it is both expensive for you and it causes strain in the relationship. And of course, as much as possible, clarify your expectations at the onset of your relationship to avoid any misunderstandings.

The post An Attorney’s Guide To Finding, Retaining & Consulting Neurosurgery Expert Witnesses appeared first on The Expert Institute.

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Lenience, Sentencing and Public Outcries

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The Importance of Restaurant Experts: Different Courses of Litigation

With over one million restaurants in the United States and an estimated $828 million in projected sales last year alone, the restaurant industry is big business. And thanks in no small part to reality television, there is no shortage of shows featuring chefs, restaurateurs, and other self-proclaimed experts of the industry touting their knowledge. But restaurant experts do more than make good television, they offer a seasoned perspective on the legal aspects associated with the business. From acting as a consultant in the preliminary stages of building a brand to offering expert testimony at a trial, there are a number of ways a restaurant expert can assist a business owner both before and throughout litigation.

What Qualifies Someone as a Restaurant Expert?

But what makes someone a restaurant expert? Typically, hands-on experience is the strongest indicator of a qualified restaurant expert. Those who really know the business have been in the business for a significant amount of time. Many have started from the ground up, with eight out of ten restaurant owners starting their careers in entry-level positions. That being said, there are various aspects of the restaurant industry – from the purchasing and planning to accounting, to day-to-day operations, to the actual preparation of food. As such, the exact qualifications depend on the type of restaurant expert sought.

That is not to say that education is not an important factor as well. Degrees in hospitality, food services, restaurant management and operations, as well as various business and accounting degrees form an important foundation for any restaurant expert. Likewise, culinary institutions, courses, and seminars provide hands-on training and education for those specializing in food services and the culinary arts.

Financial Planning and Profits

Owning a restaurant is a huge undertaking, and the decision to open a restaurant should not be taken lightly. While many may take the leap and gamble by learning as they go, the safer bet is to hire an expert consultant. Experts in financial analytics can help determine whether the restaurant will be financially viable. Such data should include all startup costs and day-to-day overhead expenses as well as an estimated profit margin. A basic financial outline in the beginning with a knowledgeable consultant provides a reasonable financial game plan and takes the guesswork out of at least some of the variables that affect the business’ profits.

Restaurant Marketing

With a financial model set and costs carefully budgeted, the next goal would be to increase profits. An expert consultant in restaurant design, branding, and marketing can help bring a restaurant to its greatest potential. Particularly in the age of social media, online branding and marketing is a huge aspect of the restaurant industry. After all, over 90% of customers read online reviews of restaurants. A restaurant’s advertising and online presence should be carefully fine-tuned by an expert to optimize its search engine exposure, and hopefully, its profitability.

Health and Food Safety Standards

All states have their own food safety laws and if not followed, a restaurant can be closed as fast as it opened. In New York, for example, the Health Department conducts unannounced inspections of the restaurant’s property and grades the business based on the number of violations. Things such as proper food handling, adequate food temperatures, personal hygiene of employees, and the control of vermin are just some of the issues that health inspectors are trained to look for. The various types of potential violations can seem overwhelming to both new and experienced restaurant owners. Experts in the various food safety laws and regulations can help ensure a restaurant is in full compliance of each and every possible rule.

Liability Issues: A Restaurant Expert’s Day in Court

Like any other service industry dealing with the public, restaurants are susceptible to lawsuits filed by their patrons. The infamous 1993 lawsuit against McDonald’s for serving its coffee too hot, which earned its burned customer $2.86 million in damages, is an extreme example. But there are many other ways in which a restaurant can find itself in court. When patrons injure themselves on a restaurant’s property, they can allege that the business was negligent in creating an unsafe condition. Allegations of negligence can stem from allegedly dangerous staircases, slippery floors, or unsafe bathrooms. But like any lawsuit setting forth a negligence claim, plaintiffs need to show that the defendant restaurant breached the standard of care. In such cases, a restaurant safety expert would be critical in establishing the standard of care among reasonable restaurant professionals and whether or not the standard was breached.

The restaurant industry is complex and subscribes to its own unique practices of conduct. When facing litigation, it is imperative to consult a qualified restaurant expert that can help navigate the many aspects of the business.

The post The Importance of Restaurant Experts: Different Courses of Litigation appeared first on The Expert Institute.

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My First LMA Conference: Relationships Matter

My first job after completing my undergraduate work was in software engineering at a big technology company where we developed an operating system. After about a year, I had the opportunity to go to an industry event. I came back to the office with the notable realization that customers were people too. It may sound funny but, at the time, the voice of the customer was brought to us from sales, marketing, and product leadership. The event gave me the opportunity to meet users face-to-face. Suddenly, the “customer” wasn’t so anonymous to me. The “customer” had a face, a job, really great ideas, and a family to get home to at night.

Industry events are a valuable way to develop relationships with peers and colleagues, network face-to-face, discuss the big challenges and opportunities, and experience the latest from notable vendors. In the days and weeks that follow all the excitement, there’s an opportunity to digest those “a-ha” moments and reflect on the common themes from the event.

The 2019 Legal Marketing Association (LMA) conference in Atlanta was no exception. From the main stage to panel discussions and presentations to the exhibit hall, it was such a pleasure to learn alongside clients, partners, and colleagues. I discovered two key themes:

(A) individuals are more powerful in numbers , and

(B) the legal market continues to evolve and is becoming increasingly competitive.

Individuals are More Powerful in Numbers Since joining the InterAction® team about six months ago, we have had conversations about who we are as a team and what we represent. CRM isn’t new. There are many players out there. What I love about our team is the focus on the power of people. We believe in the power of people doing good work for (and with) others. This has been a key theme in the development of our product, roadmap, and cohesive approach to teamwork. It’s also a key theme for the industry we serve: Your world is all about people doing good work for others. I was especially excited to see this theme throughout the LMA 2019 conference.

The opening spotlight session on ABA Rule 5.4 included discussion about teamwork and collaboration and how these are often top weaknesses for many firms. As firms evolve from pyramid to pancake models, the practical application of collaboration becomes even more important.

This theme continued with the keynote presented by Jennifer Dulski (Head of Groups & Community, Facebook). Twitter lit up with her new acronym: I.I.C.D.T.I.C.D.A. (if I can do this, I can do anything). We can do things (even when we’re afraid) by working towards a defined future that has a clear purpose. Ms. Dulski continued to talk through practical steps for making our personal brand a meaningful movement. One of my favorite parts was the discussion about influencer mapping and how to start something from an unexpected point to drive more efficient change.

LMA members also had a chance to hear from our very own Mary Olson and Elena Cutri, speaking on Collaboration and Communication Skills, respectively. Collaboration relies on trust, communication, and change management. Our success depends on the ability to understand our stakeholders’ needs and adopting a mutually beneficial approach to achieve the desired results. As part of this work, we must understand our own communication blind spots to effectively communicate with partners, attorneys, lawyers, fee earners, IT, and executive leadership. Our work to continuously develop our communication skills will serve us well but also contribute to the success of the firm as a whole.

Legal market continues to evolve and relationships are the key to differentiation.

Another key theme at this year’s event was the evolution of the legal industry as a whole and the critical work required to

compete effectively. While the idea of evolution isn’t new to the legal industry, sessions included practical approaches for continuous improvement by staying one step ahead of client expectations.

The General Counsel (GC) panel explored the ways law firms can improve to earn their business. Corporations are considering the breadth of capabilities in the market: in-house, traditional law firms and alternative legal service providers. Throughout the conversation, each of the panelists highlighted the value of having a deep relationship with their selected firms and how those relationships differentiate the firms with whom they choose to work. GCs want to work with attorneys who can help set the “goal posts”—effectively equipping them to present to the CFO—and truly partner on the success of their business. Further, the GC panel underlined a desire to better understand the meaningful and sustainable value offered by the firm.

At one point in the discussion, the panelists talked about self-disruption. Ms. Dulski had discussed the same idea using different terminology: a bear hug. As individuals and as organizations, it’s important to embrace competition because it challenges us to see things from a different perspective and, ultimately, improve our craft. The GCs suggested that ALSPs represent another option for corporations as they search for savings and efficiency. They don’t define the end of law firms; there’s room for both options based on the operational strengths of each.

This idea of using personal relationships as differentiation in a changing market was reinforced by Mo Bunnell. Mr. Bunnell helps professionals learn to develop business and often highlights that decisions can be made in the first five minutes of a conversation. He also states that people buy in to what they help create. Accordingly, we have five minutes to show clients that we know them and want to truly partner on the work to minimize their risk and drive their success. (No pressure!)

The Big-4 have already adopted a model for business development by teaching their attorneys to “sell.” Law firms must help their professionals sell by equipping them to have authentic and personal relationships with their clients.

Relationships and the role of technology.

I’m a firm believer in the value of relationships. It’s no longer about being connected anymore. It’s about the value of that connection. We have all heard that people buy from people so an honest and thoughtful approach to personal connections and authentic caring goes much further than tracking an opportunity through a pipeline.

There’s a lot of technology out there, even in just the marketing technology realm. (Check out Marketing Technology Landscape Supergraphic (2019): Martech 5000!) The good news is that the technology can help design a preferred client experience. The bad news is that we have a lot of options in that design and clients absolutely care about what that technology stack looks like because data is powerful and everyone needs to protect themselves and their business. Our clients want to help their businesses succeed and they want partners (and technology) that make it easier to do their work and get home to their families.

I’m really proud to say that InterAction is full of great people who are authentic and smart. We don’t do technology just because it’s available—we partner with our clients to discern the best application of technology given the unique nature of professional services.

Your client data can help empower your professionals to deliver a personalized and comprehensive service—one that is differentiated in meaningful ways. InterAction for Office 365® is the latest piece of our portfolio that makes this even easier—putting your CRM data in the right place at the right time, making it easier to contribute to and benefit from the data. If you didn’t have a chance to stop by our booth at LMA, I invite you to reach out for more information about this offering and the hybrid cloud model that delivers on the belief that your data is yours to protect as you choose.

All of that said, thank you for allowing me to become part of the Legal Marketing community. It’s a privilege to have the opportunity to get to know you better and I hope to speak with you soon.

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Medical Malpractice Payout Report for 2018

The National Practitioner Data Bank, a computer database of the United States Department of Health and Human Services that collects information about physicians, has released its annual report concerning medical malpractice payouts. The report, which analyzes medical malpractice claims from 2004 through 2018, highlights important trends in payout amounts throughout the United States. If the changes in 2018 are any indication, 2019 looks like it will also be a year of increased medical malpractice payout amounts throughout the country.

Payout Totals and Averages Nationally and by State

According to the published report, approximately $4,031,987,700 was paid to plaintiffs in medical malpractice lawsuits in 2018. The figure represents a 2.91% increase from the previous year of 2017. Over the course of the 14-year span that the report covers, the total payout amount has varied, sometimes significantly. The total payout for medical malpractice claims in 2004 was the highest year recorded, totaling approximately $4.6 billion. The number steadily decreased over the next eight years, reaching a low in 2012 of approximately $3.5 billion. It increased consistently over the next six years, experiencing jumps by nearly $200 million each year from 2012 to 2014. The payouts were the result of settlements 96.5% of the time, with only 3.5% (and $142,569,750 in total payments) resulting from a court judgment.

The average malpractice payment for 2018 was $348,065, in comparison to 2017, which averaged slightly less than $300,000. Unlike the total payout amount, the average payments experienced less fluctuation throughout the years and remained relatively steady. In 2014, the average malpractice amount was over $250,000 and hovered around the $300,000 mark for nine years.

The average payout amounts, however, might not be the most accurate indicator. As the state-by-state breakdown shows, the average medical malpractice payouts by state vary greatly. New York topped the list, with an average payout of $446,461 in 2018. In New York, 1,535 claims were paid, totaling $685,317,000, and marking an 11% increase from the year prior. The second highest state average was in Pennsylvania, averaging at $405,978 based off 909 claims and a total of $369,034,250. Many states experienced astronomical payout increases over the previous year, such as Minnesota (101%), South Dakota (199%), and Vermont (a whooping 486% increase in 2018). Hawaii, Mississippi, Washington D.C., and North Dakota experienced the biggest average decreases, by 60%, 41%, 76%, and 81% respectively.

Types of Medical Malpractice Claims

In 2018, medical errors related to diagnoses comprised 34.1% of malpractice actions, making it the most frequent claim. Malpractice in regard to surgery, 21.4% was the second-most alleged, with issues related to treatment following in a close third at 21.1%. These numbers are consistent with previous findings, as one study on the rates of medical malpractice lawsuits in the United States between 1992 and 2014 also found that misdiagnosis, surgical errors, and treatment-related mistakes are the most common types of claims.

In terms of damages, 29.7% of the claims resulted in death, 18.7% resulted in major permanent injury, and 12.3% resulted from brain damage, quadriplegia, and other injuries that require lifelong care. Interestingly, the payouts for malpractice claims that allegedly caused death (which average about $386,317 per person) were not as high as brain damage claims, which earned the highest payouts, at $961,185.

The Importance of Medical Malpractice Experts

Any medical malpractice lawsuit needs an expert (or several) to either prove or rebut the allegations. At the basis of every malpractice suit is whether the defendant deviated from the acceptable standard of care and if so, whether such deviation caused the injuries. While the physician’s conduct is dependent upon the particularized facts of the case, the central issue when establishing the standard of care is whether the physician acted as a reasonable professional in their field would under the same or similar circumstances. An expert trained in the particular practice area that is the subject of the litigation is necessary to establish whether such standard was met.

Overall, if the data for 2018 is any predictor, 2019 will likely see a relative increase in total medical malpractice payout amounts (while state-by-state numbers are not as easy to predict). As a whole, the United States is likely to continue an upward trend in terms of medical malpractice litigation, making the need for medical experts all the more pressing.

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Announcement: The NLSIU IPR-Technology Law Essay Competition

[Announcement on behalf of the Law and Technology Society, National Law School of India University, Bangalore]

The Law and Technology Society and the Centre for Intellectual Property Research and Advocacy (CIPRA), National Law School of India University, Bangalore are pleased to announce the ‘The NLSIU IPR-Technology Law Essay Competition’.

This is open to all undergraduate students, postgraduate students and research scholars from all streams. We request you to please forward this to your students.

Authors can write on any one of the following topics:

Disclosure requirements in Technical Standards ;

Impact of 5G on IPR atmosphere;

Smart contracts and licensing;

Patenting AI: Legal Implications;

Registration: All interested participants must register by sending a mail to [email protected] by 10 May 2019 confirming their participation in the competition. Please mention your name, academic year/position and institution in the body of the mail. There is no registration fee for the competition.

Essay Submission: There is no hard copy submission. Soft copies of the essays are to be submitted to [email protected] only. Please mention your name, academic year/position and institution in the body of the mail. The deadline for submission is 20 May 2019, at 11:59 P.M. IST.

A certificate of participation shall be e-mailed to all authors who have successfully submitted an essay. Prizes

1st place – Rs. 5000 2nd place – Rs. 3000 3rd place – Rs 2000

Further, the winning author(s) will be offered an internship opportunity with CIPRA. Additionally, depending upon the quality of entries, the best scoring essays will be published by CIPRA and Law and Technology Society, NLSIU in a book, with due credit given to the authors.

In case you have any queries, clarifications or requests, please contact us at [email protected].

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The Importance of Restaurant Experts: Different Courses of Litigation

What Qualifies Someone as a Restaurant Expert?

Financial Planning and Profits

Restaurant Marketing

Health and Food Safety Standards

Liability Issues: A Restaurant Expert’s Day in Court

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Objective Justification in Abuse of Dominance Cases in India

[Basu Chandola is a BBA LLB graduate (batch of 2018) from the National Law University Odisha.

The concept of objective justification provides that a dominant enterprise will not be abusing its dominant position if it can provide a justification for its conduct. Though the concept is well-accepted in the European Union, its position in Indian competition law is ambiguous. This post seeks to clearly demonstrate the position of law on objective justification.]

In the European Union (EU), a firm accused of abuse of dominance may put forward an objective justification and, if such a justification is accepted, there is no abuse and no violation of Article 102 of the Treaty on the Functioning of the European Union (TFEU).[i] The dominant undertaking may provide a justification either by demonstrating that its conduct is objectively necessary or by demonstrating that its conduct produces substantial efficiencies the outweigh any anticompetitive effects on consumers.[ii]

In the Indian scenario, there is ambiguity whether such a defense can be accepted within the framework of the Competition Act, 2002. Some authors believe that the Act imposes a strict liability on an enterprise abusing its dominant position and it does not make any reference to an effects-based analysis for considering the conduct of an enterprise.[iii] On the other hand, some authors believe that the conduct of a dominant enterprise may escape the prohibition of section 4 of the Act in case the dominant enterprise can provide an objective justification for its behavior or it can demonstrate that its conduct produces efficiencies which outweigh the negative effect on competition.[iv]

To bring in clarity, it is essential to first consider the structure of section 4 of the Act which deals with the prohibition of abuse of dominance and provides that no enterprise or group shall abuse its dominant position. Sub-section (2) provides a list of behavior which comprise of abuse of dominance such as imposition of unfair prices and conditions, limiting or restricting production of goods and services or limiting technical or scientific development relating to goods or services to the prejudice of consumers, indulging in practices resulting in denial of market access, making conclusion of contracts subject to acceptance of supplementary obligations, and using one’s dominant position in one relevant market to enter into another relevant market.[v]

The section explicitly provides that discriminatory conditions or prices which may be adopted to meet the competition would not be considered an abuse of dominance under section 4(2)(1) of the Act.[vi] Thus, all forms of discrimination are not affected by the rigours of the Act and only such discrimination is considered abusive which is exercised by a dominant player in the relevant market without any justification or which bears no reasonable nexus with the objective sought to be achieved.[vii] The Commission has accepted the defense of protection of dominant enterprises’ own commercial interest in number of cases[viii] dealing with imposition of unfair prices or conditions.

Apart from this limited defense for unfair pricing and imposition of unfair conditions, section 4 does not provide any scope for application of the concept of objective justification. From a bare reading, it appears that the Act does not provide for any form of defense except in cases where the abusive behavior is imposition of unfair or discriminatory prices or conditions.[ix] It is interesting to note here that in East India Petroleum Pvt. Ltd. (EIPL) v South Asia LPG Company Pvt. Ltd. (SALPG),[x] the Competition Commission of India observed that the denial of market access, in any manner, by a dominant enterprise cannot be justified. However, the Commission decided to consider the justifications offered by opposite party in this case. The Commission observed that the protection of commercial interest by a dominant enterprise, at the cost of competition, is contrary to its responsibility cast under the Act. The Commission observed that the efficiency justifications advanced by opposite party were not supported by evidence and, therefore, found the opposite party to be in violation of section 4 of the Act. Though the Commission denied the possibility of justifying a denial of market access, it still considered the justifications and ruled on the merits of the same.

Furthermore, in Hemant Sharma v All India Chess Federation (AICF),[xi] the Commission observed that, unlike other abuse cases, abuses in case of sport regulations could be justified if it is demonstrated that the restraint on competition was a necessary requirement to serve the development of sport or preserve its integrity. If such restrictions impeded competition without having any plausible justification, the same would fall foul of competition law.[xii] A strong inference that can be drawn is that no defenses can be raised generally in abuse of dominance cases.

Even more complications arise after the decision of the Supreme Court in the case of Competition Commission of India v M/S Fast Way Transmission,[xiii] wherein the Court found the respondents to be indulging in practices resulting in denial of market access in violation of section 4(2)(c) of the Act, but decided that no penalty should be levied on them as their behavior was otherwise justifiable. The Supreme Court has thus treated the justifications as mitigating factor not to impose penalties rather than an objective justification or defence as traditionally understood.[xiv] It may be noted that the order does not provide the reasoning for treating the justifications as mitigating factors rather than treating them as defenses. The approach of the Supreme Court on accepting justifications is very different from the approach taken in the EU. In the EU, once a justification is accepted the dominant enterprise does not abuse its dominant position. However, the decision of the Supreme Court suggests that though the justification may be used to reduce the penalty to be imposed on the dominant enterprise, it does not absolve the dominant enterprise itself.

To conclude, the author would like to state that accepting justifications from a dominant enterprise is a welcome step while dealing with abuse of dominance cases. However, a proper framework or guidance must first be provided either by the statute or by judicial decisions which may help in developing the concept. The Act does not clearly provide for objective justifications and therefore, accepting them without providing proper reasoning does not seem very prudent. The author hopes that the Supreme Court will deal with this issue in depth and provide the much needed framework. Until then, we can be content that justifications can at least be treated as mitigating factors while imposing penalties in abuse of dominance cases.

– Basu Chandola

[i] Tjarda van der Vijver, ‘Objective Justification and Article 102 TFEU’ World Competition Law and Economics Review, Volume 35 Issue 1.

[ii] European Commission, ‘Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings’ (2009/C 45/02)

[iii] Cyril Shroff and Nisha Kaur Uberoi, ‘Chapter 4: India’, in Katrina Groshinski and Caitlin Davies, Competition Law in Asia Pacific: A Practical Guide (Kluwer Law International 2015).

[iv] Abir Roy, Competition Law in India: A Practical Guide (Kluwer Law International 2016) 223.

[v] The Competition Act 2002, section 4(2).

[vi] The Competition Act 2002, explanation to section 4(2)(a).

[vii] VE Commercial Vehicles Limited v Uttar Pradesh State Road Transport Corporation, Case No. 21 of 2017 (Dissent) (7 September 2017).

[viii] See All Odisha Steel Federation Informant v Odisha Mining Corporation Limited, Case No. 12 of 2012 (19 September 2013); Rico Auto Industries Limited v GAIL (India) Ltd., Case No. 16 of 2016 (8 November 2018); Prasar Bharati (Broadcasting Corporation of India) v TAM Media Research Private Limited, Case No. 70 of 2012 (25 February 2016); Kapoor Glass Private Limited v Schott Glass India Private Limited, Case No. 22 of 2010 (29 March 2012).

[ix] Abir Roy, Competition Law in India: A Practical Guide (Kluwer Law International, 2016) 179.

[x] Case No. 76 of 2011 (11 July 2018).

[xi] Case No. 79 of 2011 (12July 2018).

[xii] See also Sh. Dhanraj Pillay v M/s Hockey India, Case No.73 of 2011 (31 May 2013); Surinder Singh Barmi v The Board of Control for Cricket in India, Case No. 61 of 2010 (29 November 2017).

[xiii] (2018) 4 SCC 316.

[xiv] Rahul Goel, ‘Supreme Court Confirms Abuse of Dominance by MultiSystem Operators’ (Competition Law- A Cyril Amarchand Mangaldas Blog (7 March 2018).

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My First LMA Conference: Relationships Matter

(A) individuals are more powerful in numbers , and

(B) the legal market continues to evolve and is becoming increasingly competitive.

Individuals are More Powerful in Numbers Since joining the InterAction(r) team about six months ago, we have had conversations about who we are as a team and what we represent. CRM isn’t new. There are many players out there. What I love about our team is the focus on the power of people. We believe in the power of people doing good work for (and with) others. This has been a key theme in the development of our product, roadmap, and cohesive approach to teamwork. It’s also a key theme for the industry we serve: Your world is all about people doing good work for others. I was especially excited to see this theme throughout the LMA 2019 conference.

Legal market continues to evolve and relationships are the key to differentiation.

Another key theme at this year’s event was the evolution of the legal industry as a whole and the critical work required to

compete effectively. While the idea of evolution isn’t new to the legal industry, sessions included practical approaches for continuous improvement by staying one step ahead of client expectations.

Relationships and the role of technology.

All of that said, thank you for allowing me to become part of the Legal Marketing community. It’s a privilege to have the opportunity to get to know you better and I hope to speak with you soon.

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Medical Malpractice Payout Report for 2018

Payout Totals and Averages Nationally and by State

Types of Medical Malpractice Claims

The Importance of Medical Malpractice Experts

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Bill C-46 Raises Many Red Flags - Impaired driving or impaired civil liberties?

In mid-December 2018, the Canadian government implemented Bill C-46, this new controversial legislation amended the Criminal Code by introducing new impaired driving regulations. As a result, Canada now has some of the most stringent and punitive impaired driving laws in the world. However, this legislation should not be celebrated, as it is overreaching, irresponsible, and will most likely be deemed unconstitutional in the near future. Make no mistake, I am in favor of a strong stance on impaired driving as it is a terrible offence that comes with great social costs, impacting the lives of many Canadians. But, while the intent behind Bill C-46 is commendable, it fails to strike a balance between civil rights and public safety, putting Canadians civil liberties in jeopardy.

Bill C-46 was enacted in response to Bill C-45 known as the “Cannabis Act”, which regulated and legalized marijuana in Canada. The Liberal government, which prides itself on operating within the confines of the Charter, stiff-armed this legislation through parliament in order to address attacks from the right and rising public concern over the potential increase in impaired driving as a result of the legalization of marijuana. The rushed nature of this Bill has resulted in it missing a number of crucial details, making it inconsistent with Charter values.

Under the new legislation, section 320.27 gives police the authority to conduct random and mandatory impaired driving tests without any reasonable suspicion that the driver is under the influence. Whereas previously under the law, police were only able to conduct impaired driving tests if they had a reasonable suspicion that the driver had been drinking. This ‘reasonable suspicion’ was based on various behavioral clues and observations, which included slurred speech, odors of alcohol, admission of consumption, and vehicle operation.

The new legislation has completely abolished the already low-threshold requirement of reasonable suspicion and gives law enforcement the ability to conduct a road side breath-test whenever they want. This new mandatory random breath-testing regime expands state power exponentially and contains provisions that will significantly impact section 8 (protection against unreasonable search and seizure) and 9 (the right not to be arbitrarily detained or imprisoned) of the Charter. This increase in police power will not come without costs, Canada has a history of police violence and abuse of power. Giving police a discretionary personal search power is analogous to the phenomenon of “carding” and this will disproportionately target marginalized groups, who are already subjected to discrimination by police1 Consequently, this could substantially increase the problem law-enforcement already has with racial profiling.

Bill C-46 exhibits striking similarities to Bill C-73 the Dangerous and Impaired Driving Act, which was condemned by the Public Safety Committee stating, “legal problems with the Bill far outweigh the potential salutary effects.” Impaired driving provisions are already among the most litigated in the Criminal Code and this new legislation will result in increased burdens on our judicial system, which is already severely overwhelmed. This may impair an accused individual’s section 11 Charter right to be tried within a reasonable amount of time and will leave victims of impaired driving seeking closure for extended durations of time.

Section 320.14 states that being impaired within two hours of driving is now also an offence. This can lead to some absurd convictions. For example, assume that I drove to a wine tasting event sober with the full intention of leaving my car overnight. I consume a few glasses of wine and suddenly the police show up and demand a breath-test because it is within two-hours since I last operated my vehicle. I could theoretically be charged with impaired driving. This reverses the burden of proof, treating an accused as guilty until proven innocent. This would require an accused to hire a toxicologist in order to corroborate their claims. It is up to the Crown to prove that an accused person committed a crime and is guilty, not up to the accused to prove that he or she is innocent.

This legislation is sloppy at best and although some Canadians may not take issue with these mandatory random breath-tests because their experiences with police are minimal, this legislation should not be accepted quietly. Safer roads are also not a guarantee, as harsher punishments do not always deter offenders2 Again, I do not think impaired driving should be tolerated in any respect, but Bill C-46 is inconsistent with our Charter values and is a slippery slope for increased state power. This legislation is not a justified limitation on our freedoms as outlined in section 1 of the Charter and thus it will most likely be deemed unconstitutional by the Supreme Court of Canada when it is inevitably challenged.

Footnotes

1 Anthony Laycock, “Bill C-46, and Act to amend the Criminal Code and to make consequential amendments to other Acts” (28 February 2018), online: The Criminal Lawyers Association < https://www.criminallawyers.ca/wp-content/uploads/2018/03/C46Submissions.pdf> [perma.cc/WC9V-V67R].

2 Ibid.

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Schemes of Arrangement in Liquidation: A New Ray of Hope?

[Vinod Kothari is an insolvency practitioner at Vinod Kothari & Co and can be reached at [email protected].

An earlier post on the topic is available here.]

The recent rulings of appellate judicial and quasi-judicial authorities in India permitting the pursuit of schemes of arrangement even after initiation of liquidation proceedings may have sounded surprising to many. However, the history of schemes of compromise and arrangement is indeed replete with examples of such arrangements seeking to bail out an entity that is otherwise doomed to be liquidated. Since India stands out in the world, having enacted section 29A of the Insolvency and Bankruptcy Code, 2016, which disqualifies a promoter from submitting resolution plans or acquiring the assets of the entity in liquidation, the issue causing a lot of debate is – how does the possibility of a scheme of arrangement co-exist with this principle of promoter disqualification? Or, if the promoters, disqualified from either heading a resolution exercise or acquiring assets in liquidation, can find a surrogate route in schemes of arrangement, is there a potential of negating the very objective of insertion of section 29A?

Another major question is: unlike the erstwhile Companies Act, 1956 regime where both schemes of arrangement and winding up were to occur under the same law and before the same forum, schemes of arrangement are now under the Companies Act, and liquidation under the Code. Therefore, if a scheme of arrangement has been suggested, should liquidation proceedings in the meantime stand stayed, as otherwise the very existence of a chance of revival through the scheme route will get nullified if liquidation achieves some milestones? Further, is it alright for the jurisprudence relating to the apparent overlap and, to an extent, conflict between arrangement and liquidation to develop on its own, or should the lawmakers interfere and write the law, instead of waiting for long winding route of litigation to reach a finality? This post seeks to address these issues, and seek answers for the various questions.

Schemes of arrangement for companies in winding up

Not only is it possible for schemes of compromise or arrangement to be presented for companies in liquidation, it may be interesting to note that the entire concept was originally intended, both in UK and India (and other countries drawing inspiration from the UK law), to be a bail-out device for companies otherwise headed for winding up. In fact, as far back as in the Indian Companies Act, 1913, section 153 pertaining to compromise or arrangement defines the word “company”, relevant to this section, as a company “liable to be wound up under this Act”. The definition continued in section 390 (a) of the Companies Act, 1956.

To a lay person, a “company liable to be wound up” meant a company that was either on the brink of bankruptcy, or was already into liquidation (since section 391 explicitly permitted a scheme to be presented by the liquidator, if the company was in winding up). It was only due to judicial interpretation of the expression “company liable to be wound up” that the expression includes every company which may be wound up under the Act following the procedure laid for winding up; healthy companies could also be covered under the chapter pertaining to schemes of compromise or arrangement. The ruling of the Bombay High Court in Khandelwal Udyog and Acme Manufacturing Co Ltd., (1977) 47 Com Cases 503, marked a departure from the principle earlier held by the same court in Seksaria Cotton Mills Ltd. v. A.E. Naik, (1967) 37 Com Cases 656, that the provision was meant only for a company on the brink of bankruptcy.

There have been numerous instances in India, and many in UK, where companies which have been in liquidation for years altogether have been ordered to be revived based on schemes of arrangement. Meghal Homes P. Ltd. v. Shree Niwas Girni K.K. Samiti, (2007) 139 Com Cases 418, is a case where the company was ordered to be wound up in 1984 and the scheme of arrangement was proposed in 1994.

Key differences between schemes of arrangement and resolution under Code

There are several significant differences between schemes of arrangement under corporate laws and resolution procedures under the Code. First, resolution schemes have practically no shareholders’ involvement. The structure of the Code seems to be exclude shareholders’ participation in resolution schemes, on the understanding that commencement of insolvency passes control from shareholders to the creditors. Indian law has gone to the extent of explicitly disabling the promoters (mostly majority shareholders) from proposing any resolution plan [section 29A(c) of the Code], or acquiring any assets of the company under liquidation [proviso to section 35(1)(f) of the Code]. On the contrary, schemes of arrangement under section 230(1) of the Companies Act, 2013 explicitly mandates meetings of creditors (and every class of creditors) and shareholders to be called separately, and an approval of the scheme by a supermajority vote in each of them. It may be noted that the need for approval by both shareholders and creditors depends on whether the arrangement involves the interests of shareholders as well as creditors (note the words in section 230 “as the case may be”). Most revival schemes of a company under liquidation will involve shareholders’ interest as well – hence, approval by both shareholders and creditors will be mandatory in case of a revival scheme.

Second, the supermajority approval requirement under section 230(6) has both a head count requirement as well a super-majority vote by value. The specific majority requirement, which was there in the 1956 Act as well, ensures that the supermajority in value does not completely cram-down the minority. Therefore, creditors of small value and small shareholders also wield the power to hold back the consent of larger creditors and shareholders. (See, however, an article by my colleague arguing that the head-count test was consciously dropped based on recommendations of JJ Irani Committee).

Third, it is important to note that section 230 requires consent of every “class of creditors”. As to what is meant by a class in this context and the difficulties in identifying a class has been discussed elaborately in State Bank of India and others v. Altstom Power Boilers, 116 Comp. Cas 1 (2003). (Palmer’s Company Law also discusses as to what constitutes a class for the purpose of compromises and arrangements. These were discussed in the landmark Supreme Court ruling in Miheer N Mafatlal v Mafatlal Industries Limited (1996)). Generally speaking, secured creditors, preferential creditors and unsecured creditors will form different classes. It may also be argued that one of the ways of recognising classes, in case of a company under bankruptcy, is their position in the waterfall under section 53 of the Code.

Fourth, the creditors’ or members’ meetings under section 230 cannot be reduced to a farce by only recognising the votes of only those members who are able to make it to the meeting – because the law explicitly recognises voting by proxies in such meetings. Additionally, requirements imposed by the Securities and Exchange Board of India (SEBI) in case of listed entities have put several additional safeguards, including mandatory facility of e-voting in such meetings, and a separate recognition of votes of “independent shareholders” (see Annex I Para I(A) point 9 of SEBI Circular dated 10 March 2017).

Can section 230 scheme be a surrogate route for ineligible promoters?

One of the most important questions concerning schemes of arrangement is – do the schemes permit the promoters to do what they are not able to do by virtue of section 29A – submit and approve schemes of revival whereby the promoters will perpetuate their stay in the company? The object of introducing section 29A in the Code, unusual in insolvency laws around the world, is to debar existing promoters of the company in default to perpetuate their stay in the company by submitting resolution plans. The sweep of the section is indeed very wide – it is not only limited to promoters of the company in question, but also any other defaulter company. Section 29A has blocked the submission of resolution plans in several high profile insolvency cases in the country, and it will be illogical to allow the submission of revival plans by promoters or controlling shareholders who cannot submit resolution plans by virtue of section 29A.

On the other hand, it may be argued that section 230 is a provision under the Companies Act, which has no equivalent of section 29A. In any case, the scheme of arrangement has the supermajority vote, not only of the shareholders, but also each of class of creditors. If the company in question is a listed entity, the shareholders’ consent must at least meet simple majority by disregarding the votes of promoter-shareholders. Thus, if the creditors and shareholders, in their separate meetings, have anyways reposed faith in the scheme as proposed, should the company not be allowed to come out of the Code and be revived under the Companies Act? After all, a section 230 compromise is not a resolution plan and in any case if the National Company Law Tribunal (NCLT), who would be sitting for approving such scheme, is able to see that the so-called scheme for a revival is an abuse of the process of law, the NCLT may always turn the scheme down. But there does not seem to be sufficient reason to have a generalised disqualification for promoters or shareholders in proposing the scheme.

At the same time, the NCLT also needs to be careful in ensuring that the scheme does not become a device to hold the process of liquidation in limbo and perpetuate the stalemate. Very often, the interest of promoter-shareholders lies in prolonging the uncertainty – when they see that the ultimate is their exit from the management, they try to prolong the stalemate. This is a real risk that NCLTs presiding over the schemes of arrangement will have to safeguard against.

Mechanics of schemes of arrangement during liquidation

How would a scheme of arrangement work during liquidation? The scheme may be proposed by shareholders, or creditors, or the liquidator himself. Typically, the initiation of an application before the NCLT under section 230 happens by the board of directors approving a scheme and making an application for convening a meeting of shareholders and members. During liquidation, since the directors relinquish their offices, there is no scope for the board submitting a scheme. Presumably, the mechanics may be for a substantial shareholder block proposing the liquidator to put a scheme before the NCLT. Creditors, of course, may propose the same directly to the NCLT. If the liquidator sees prima facie strength in the scheme, the liquidator may put forth the scheme before the NCLT.

The meetings of shareholders and creditors for approving the scheme are called at the instructions of the NCLT. Unless the NCLT dismisses the application in the very first hearing, the issue is – while the meetings of creditors and shareholders are being called, will the process of liquidation be stayed? It seems that it will be logical that the winding up proceedings should be temporarily stayed, until the shareholders’ and creditors’ meetings are called to consider the scheme. The principles for stay of winding up proceedings were contained in section 466 of the Companies Act, 1956 – this provision, and several English and Indian authorities on this regard has been discussed at length in Forbes and Company and another v. Official Liquidator (2013). If the schemes have the approval of the shareholders and creditors, then the NCLT may go by the principles well enunciated in Miheer N Mafatlal and similar rulings and, if eventually the NCLT passes order approving the scheme, the initiation of liquidation will be liable to be reversed.

Conclusion

It appears that when the Code was being written, the overlap of section 230 was not clearly visible, even though section 230 as amended by the Code itself makes a reference to liquidator appointed under the Code. However, now that this possibility has been opened up by jurisprudence, it is appropriate that we have codified law, rather than the uncertainty of a judicial law-making. Revival is always preferable over death, unless the so-called revival is just another ploy to permit a promoter using limited liability to continue to do unfair trading.

– Vinod Kothari

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Supreme Court on Arbitration Agreement in an Unstamped Instrument

[Mansi Patel is an Advocate based in Mumbai]

In Garware Wall Ropes v Coastal Marine Constructions & Engineering Ltd (10 April 2019), the Supreme Court held that an arbitration agreement in an unstamped instrument does not exist in law; thus it cannot be acted upon by courts for the appointment of an arbitrator under section 11 of the Arbitration and Conciliation Act, 1996. By this judgment, the Supreme Court has reinforced the principles laid down in SMS Tea Estates v Chandmari Tea Company Pvt. Ltd., (2011) 14 SCC 66, which held that the courts cannot act upon an unstamped document.

Brief Background

Before the matter had reached the Supreme Court, Coastal Marine Construction and Engineering Limited (‘CMCEL’) had approached the Bombay High Court under section 11 of the Arbitration Act. The Bombay High Court took note of the fact that the scope of section 11 of that legislation, after the amendment, has been narrowed; hence the court’s role following the amendment is limited to only examining the existence of an arbitration agreement. Accordingly, the Bombay High Court had held that an unstamped instrument is not a bar to refer the parties to arbitration. Assailing this order of the Bombay High Court, Garware Wall Ropes Limited (‘GRL’) approached the Supreme Court. For detailed discussion on the judgment passed by the Bombay High Court, please refer to my earlier post on this Blog.

Judgment and Analysis

The questions which the Supreme Court had to decide were as follows:

– The introduction of section 11(6A) by Arbitration and Conciliation (Amendment) Act, 2015 has removed the basis of SMS Tea Estates. In view thereof, whether the court at the stage of hearing of a section 11 application is required to impound the instrument?

– Also, whether the court can proceed to appoint an arbitrator on the basis an unstamped instrument, and whether it is the arbitrator who later can impound the instrument?

Notably, the Supreme Court in SMS Tea Estates had held that where an arbitration clause is contained in an unstamped agreement, the provisions of Indian Stamp Act, 1899 require the judge hearing the section 11 application to impound the agreement, before proceeding to appoint the arbitrator.

The Supreme Court now held that the introduction of section 11(6A) by Arbitration and Conciliation (Amendment) Act, 2015 was necessitated because of the two judgments of the Supreme Court: SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618 and National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267. These judgments significantly broadened the scope of inquiry under section 11 of the Arbitration Act. Thus, in a section 11 application, parties were free to raise various preliminary issues, which did not relate to the existence of an arbitration agreement, and which issues could otherwise have been decided by the arbitrator under section 16 of the Arbitration Act.

In view thereof, in the 246th Law Commission Report, recommendations were made that these two judgments require reconsideration; as a result, section 11(6A) of the Arbitration Act was introduced. Presently, therefore, the court while considering an application under sections 11(4) to 11(6) is required to confine itself to the examination of the existence of arbitration agreement and to leave all preliminary issues to be decided by the arbitrator. However, neither in the Statement of Objects and Reasons of the Amendment Act nor in the Law Commission Report is there any mention of SMS Tea Estate. Therefore, it is clear that the introduction of section 11(6A) does not in any manner deal with or get over the basis of SMS Tea Estate.

The Supreme Court held that an analysis of section 11(6A) would show that when the court considers an application under sections 11(4) to 11(6), and comes across an arbitration clause in an agreement or conveyance which is unstamped, it is enjoined by the provisions of the Indian Stamp Act to first impound the agreement or conveyance and then see that stamp duty and penalty (if any) is paid before the agreement, as a whole, can be acted upon. It is important to remember that the Indian Stamp Act applies to the agreement or conveyance as a whole. Therefore, it is not possible to bifurcate the arbitration clause contained in such agreement or conveyance to give it an independent existence.

The Supreme Court further observed that when an arbitration clause is contained “in a contract”, it is significant that the agreement only becomes a contract if it is enforceable by law. However, under the Indian Stamp Act, an agreement does not become a contract, i.e. it is not enforceable in law unless it is duly stamped. Therefore, it is clear that the arbitration clause that is contained in a contract would not ‘exist’ as a matter of law until the contract is duly stamped. In support of this proposition, the Supreme Court had placed reliance on United India Insurance Co. Ltd. and Ors. v. Hyundai Engineering and Construction Co. Ltd. and Ors., 2018 SCC OnLine SC 1045. The Supreme Court also rejected the submission of CMECL that the obligation to pay the stamp duty was that of the GRL, and therefore GRL cannot take advantage by observing that the provisions of the Indian Stamp Act are mandatory provisions of law.

Thus, to conclude, the Supreme Court harmoniously interpreted the sections 33 and 34 of the Maharashtra Stamp Act, which is a general statute insofar as it relates to safeguarding revenue, and section 11(13) of the Arbitration Act, which applies specifically to the speedy resolution of disputes by appointment of an arbitrator expeditiously. It was held that while proceeding with the section 11 application the High Court must impound the instrument which has not borne stamp duty and hand it over to the authority under the Maharashtra Stamp Act, who will then decide issues qua payment of stamp duty and penalty (if any) as expeditiously as possible, and preferably within a period of 45 days from the date on which the authority receives the instrument.

As soon as stamp duty and penalty (if any) are paid on the instrument, any of the parties can bring the instrument to the notice of the High Court, which will then proceed to hear and dispose of the section 11 application expeditiously. It was observed that this would also ensure that, once an arbitrator is appointed, the arbitrator can then proceed to decide the dispute within the time frame provided by section 29A of the Arbitration Act.

Conclusion

In view thereof, the Supreme Court has reinstated the position laid down in SMS Tea Estates, and hence unstamped or insufficiently stamped documents cannot be acted upon to appoint an arbitrator. However, it is pertinent that while deciding the issue in the present judgment, a reference was made to the recent full bench judgment of the Bombay High Court in Gautam Landscapes Pvt. Ltd. v. Shailesh Shah (4 April 2019), where the Court has held the following:

– A court can entertain and grant any interim or ad-interim relief in an application under section 9 of the Arbitration Act, even though the document containing the arbitration clause is unstamped or insufficiently stamped.

– Because of section 11(6A) of the Arbitration Act, before considering and passing final order under section 11(6), it is not necessary for the courts to await adjudication by the stamp authorities, in case the document is objected to or is not adequately stamped.

Given the present judgment, the second finding of the Bombay High Court stands rejected. However, it will be a matter of argument that, in view of the observations made by the Supreme Court in the present judgment (especially the observation that the arbitration clause that is contained in contract would not ‘exist’ as a matter of law until the contract is duly stamped) the first finding of the Bombay Court also stands rejected.

– Mansi Patel

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legalseat · 5 years

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Tax Evasion – Doing Taxes Is Complicated, Evading Taxes Is Criminal

See the tiny url: https://tinyurl.com/yymz2pb2

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legalseat · 5 years

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Out of the Frying Pan into the Fire: Analyzing the integrity and efficacy of the Manitoba Criminal Justice System

Topic Overview

Following the Manitoba Court of Appeal’s November 27, 2018 decision to issue a stay of proceedings, after 31 years, in R v Ostrowski, the integrity and efficacy of the Manitoba justice system is called into question insofar as its ability to avoid wrongful convictions and finalize criminal cases in a timely fashion.

Case Summary (R v Ostrowski 2018 MBCA 125)

Then 38-years old, Frank Ostrowski was charged with the first degree murder of Robert Nieman in 1987 and was convicted later that same year in a jury trial. The conviction turned on evidence which indicated Ostrowski had planned the murder and provided the gun that was used to shoot Nieman; both the appeal to the Manitoba Court of Appeal and the Supreme Court of Canada where dismissed.

Ostrowski had been a high-level cocaine trafficker at the time and was previously charged with cocaine trafficking in 1986 which lead to a police raid of his home and the discovery of two hidden compartments. Ostrowski inferred this meant someone had informed on him and appeared to suspect Nieman due to Ostrowski’s alleged role in Nieman’s murder.

The Crown’s main evidence against Ostrowski was given by Matthew Lovelace who used Ostrowski as his cocaine supplier. Lovelace provided information to the police about the drug operation after he was arrested for possession for the purpose of trafficking. Lovelace also testified that Ostrowski said he had provided a gun to colleagues so that they could take care of Nieman. Lovelace was also recorded by Sargent Jacobson to have warned the police of Nieman’s murder and Ostrowski’s involvement the day before it occurred – this warning was recorded in Sargent Jacobsen’s personal notes and a formal report that he field which cumulatively make up the “Jacobsen Report” which was entered as evidence at trial.

These two submissions of evidence created two issues with the conviction that would drag out judicial proceedings for an unreasonable 31 year period and culminate as a miscarriage of justice: (1) the crucial Crown evidence given by Matthew Lovelace may have been improperly swayed by an exchange for the dismissal drug charges that had been set against him, which was never disclosed to Ostrowski’s lawyers; and (2) the supporting Crown evidence – the Jacobsen Report – was not disclosed to Ostrowski’s lawyers prior to the murder trial.

The Miscarriage of Justice

The Ostrowski trial was prosecuted by senior provincial Crown attorney George Dangerfield and junior provincial Crown attorney Sidney Lerner on behalf of Manitoba Justice. Dangerfield, then 53, was an experienced Crown attorney and should have known the proper court processes for legal hearings and disclosure of evidence. The miscarriage of justice that occured was the prevention of Ostrowski’s council from making a full answer and defence. That Lovelace had his charges dropped in exchange for his testimony could have been used to discredit his crucial evidence, and the Jacobsen report should have been disclosed prior to trial and could have been used by the defence to discredit Sargent Jacobsen’s testimony when inconsistencies arose. A stay of proceedings is also not a unique occurence for a trial prosecuted by Dangerfield. The stay of proceedings in R v Ostrowski marks the fourth murder conviction by Dangerfield that has been reversed in Manitoba – the other three reversals fell in favour of previously convicted Manitobans James Driskell, Kyle Unger, and Thomas Sophonow.

Implications for the current state of the Manitoba Criminal Justice System

The greater concern is not that Dangerfield had four reversals in his career but rather that each of the four reversals turned on the Crown withholding crucial evidence such as coerced confessions and secret deals to individuals that were about to face trial. However, it has only been since 2001 that the Crown has been legally required by the Supreme Court of Canada to provide the defence with all relevant evidence, even if it hurts their case, with the unethical breach of this standard potentially resulting in disbarment. Dangerfield’s conduct may not have been above board, and lead to four miscarriages of justice, but it occured in cases prior to the stricter approach taken by the Supreme Court of Canada towards withholding important case evidence. Hopefully, we will continue to see a steep decline in the number of reversals from cases tried in Manitoba after 2001 which will vindicate the integrity of the Manitoba criminal justice system.

At issue is also the length of time it took for the Ostrowski case to reach a final verdict as 31 years is a long time to determine a simple issue – that it is a miscarriage of justice for Crown attorneys to withhold important evidence. The Manitoba criminal justice system is limited by its users insofar as it can only make decisions based on the facts that are presented before it, and can only act on motions filed by the Crown, the accused, and their council.

In Ostrowski’s case he was first charged, tried, and convicted within one year in 1987; then when an application for judicial release was filed by Ostrowski’s lawyer in 2009 the application was heard and granted that same year; finally, when another application was made for ministerial review this year in 2018, the appeal was brought by way of reference from the Minister of Justice, on a motion by the defence to present new evidence on appeal, and was resolved with a stay of proceedings before the end of the year. The Manitoba Criminal Justice system has maintained efficacy with reasonable timelines for reviewing decisions which could potentially amount to a miscarriage of justice, but they are only as efficient as their implementation by users of the system.

R v Ostrowski, 2018 CarswellMan 550, 2018 MBCA 125, 151 W.C.B. (2d) 686

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