Valerie isn't your typical city lawyer. She works at a major international law firm - Hogan Lovells is a serious power house - but is part of the next tech savvy, innovative generation focused on what her clients really want and are not restricted by historic client/lawyer models. These lawyers are looking to do things differently, and in Hogan Lovells are encouraged to be confident, creative and adaptable in the ways they meet their clients' needs.
Valerie speaks passionately about why the changing world - and demands on those in the product supply chain - means law firms need to change to meet the demands of their product clients. They need to change the way they think, speak, and act - and Hogan Lovells certainly seems to be ahead of the curve in this space.
"Working with Hogan Lovells' Global Products Law team feels like you're working with a team of people who really understand that the whole point of the exercise is to get your product onto the market, compliant, and to keep it there. It’s easy to speak to us - straightforward and frank emails and calls, with just the right level of detail; not lengthy legalese.
One strength is the time we take to get close to our clients so we really know their commercial drivers. Our lawyers are encouraged to think like in-house counsel - who come under huge pressure if they don't provide quick and commercial advice. Underlining it all is the need to be adaptable - many companies have their own culture and there's different ways of working with external counsel. The trick is to know your client - and get it right on an individual basis."
Why do you refer to 'product law' rather than using the more traditional product liability vs product regulatory and compliance split?
Hogan Lovells originally developed a very strong 'pure product liability' practice on the back of the pharmaceutical and tobacco litigation of the 80s and 90s. This practice remains a major strength for the firm.
But the world is changing - there's a hugely significant world of international product regulatory law and consumer law for those in the product supply chain to navigate. Penalties for non-compliance can be significant, depending on the country, regulator, product, and fact pattern. The risks of non-compliance go beyond regulatory intervention: in some countries, depending on the issue, it can mean criminal penalties for the company and even individuals in the supply chain. Non-compliance can result in huge reputational damage and loss of market share, revenue and l competitive advantage. And it gets significantly worse - of course - if the circumstances around the non-compliance lead to litigation and product liability claims.
At the same time, now more than ever, an increasing number of companies and innovators are moving into the consumer product space. The pace of change and product development in the last couple of years far exceeds the pace of change in the decade before that. Technological advancement and the global market place means almost anything is possible - and products can be sold internationally very quickly. To stay relevant, meet consumer demands, and look after revenue, responsible companies want their safe products on the market quickly, and on as many platforms and in as many countries as possible. All with minimal product, packaging, and sales platform tweaks for the local market.
Against this backdrop, it no longer makes sense to look at product work primarily from the perspective of product liability cases and potential claims.
We're so much better placed to support product companies and those in the product supply chain - and internationally - if we become simply "product lawyers", specialising in global product law through our huge global network of product lawyers.
What does this mean in practice?
Law firm's experience and expertise in products has often focused on the post-marketing stage, once products are in the hands of their owners and are alleged to have caused some sort of harm resulting in a liability claim. That's quite late in the product story.
Our clients are often looking for legal support and commercial input at the product design and testing stage, for example, and have questions on chemicals and labelling and packaging, and general product safety and compliance issues. Clients need lawyers with excellent relationships with regulators and market surveillance authorities. And let's not forget the importance of having lawyers who can help navigate the world when products are designed ahead of law and regulation, and who can help launch products internationally by coordinating with local lawyers, authorities, testing houses and certification organisations.
So... how do you do it all?
First, thinking like in-house counsel means knowing when to bring in additional expertise. When a product company wants to know more about marketing law, for example, we loop-in the marketing law experts. Likewise, there are often questions around product launches relating to tax and customs - and we'd helicopter in experts in this field. It’s about bringing in the right level of expertise at the right time.
Second, Hogan Lovells has adapted the way it channels its lawyers into teams - we’re moving away from the concept that technology is handled only by “IT lawyers” and towards a model where technology matters are managed by lawyers across many different practice streams. In London, our Tech Hub supports innovators, incumbents and start-ups on cutting edge projects - working across all practice areas. We think ahead: helping our clients to understand the impact of new and existing laws on new technological trends and developments.
Third, we know the importance of staying ahead of the curve. Our Global Products Law team monitors legal developments in product liability, regulation, safety and compliance from around the world. One of the ways we do this is by working daily with a huge international network of lawyers. In the same way that client instructions flow across the network in order to offer global advice to our clients, our network is similarly connected to make sure the team is aware of changes that affect our clients.
Have there been any significant legislative developments that have affected your work at all during the last 12 months? If so, please explain.
This is a really interesting time to be a products lawyer doing both regulatory work and handling product related litigation and liability risks. For example:
The Product Liability Directive (PLD), which created the strict liability regime in the EU, has had a 30 year lifespan so far. Despite regular review, it has been consistently considered to be, overall, a good piece of legislation that strikes an appropriate balance between all interest groups. One of its objectives is "solving the problem, peculiar to our age, of increasing technicality, of a fair apportionment of the risks inherent in modern technological production". So, while it may be tempting to conclude that it is not an adequate tool for dealing with liability questions arising from new technologies (given that it was adopted before even the internet rose to prominence); the reality is that the PLD has already risen to the challenges of developing technology, aided by judicial interpretation, over the past 30 years. This year, the European Commission is once again preparing an evaluation of the PLD, with the results expected to be published at the end of the year. A key focus will be to determine whether the PLD remains fit for purpose in the context of more recent technological developments, like the Internet of Things (IOT) and autonomous vehicles. One thing we are looking out for, is if there are proposed changes in order to "futureproof" the PLD. The last review, in 2011, concluded that it would be "premature" to do so. We will be interested to see if the EU Commission now finds, on balance, that the time has come to change the PLD.
Another hot topic for product lawyers is, of course, IOT; the technology that allows products (anything from smartphones to wearables and more) to interconnect. Our Products Team has been contributing to the Alliance for Internet of Things Innovation, an association initiated by the EU Commission, since its launch in March 2015. A "one-size-fits-all" approach is not appropriate to deal with this complex and emerging technology. While in some cases, existing legislation and regulation may be enough to deal with the challenges of IOT; in others, greater change may be required. So far, we haven't seen strong evidence that existing regimes are incapable of dealing with the issues that arise in IOT – but this will have to be monitored, and in due course, appropriate regulatory guidance and/or jurisprudence may be needed to respond to specific needs for clarification. As IOT technology, and the products it can be used in, continues to develop, and as consumer up-take increases – this is certainly an area to watch.
What sort of things do companies generally find challenging in the field of product liability and product regulation? How do you navigate those challenges?
Changes to well established laws and regulations can happen quickly, and so we help our clients to navigate the complex arena of product regulation, particularly where innovative products have developed faster than laws and regulations. It's no longer as simple as a product falling neatly under specific regulations; we now help clients to first determine what laws and regulations apply to their products, and then to comply with them.
We also help our clients meet internal demands for increasingly quick turnarounds and to produce packaging for their products that fits with the brand's individual image. Requirements and risks differ from jurisdiction to jurisdiction, and not always in obvious ways - so we tap into our Global Products Law network at Hogan Lovells to provide our clients with practical and precise advice. A client's desire for a global approach is understandable, and we see this in requests that range from creating a global warranty to agreeing a global set of packaging and instructions for any given product. We work with our clients to understand the relevant requirements, assess the risks, and ultimately decide on an approach that best meets their needs, balancing this against the potential risks of the range of possible options available to them.
Valerie Kenyon
Senior Associate
valerie.kenyon@hoganlovells.com
+44 20 7296 5521
Valerie Kenyon is a senior products lawyer in Hogan Lovells' Global Products Law team, and is based in London. A home-grown rising star within Hogan Lovells, Valerie focuses on pure product related regulatory, litigation and compliance matters. With a significant international client base, especially in the technology and consumer products sectors, Valerie sees her role as bridging the gap between in-house counsel and a traditional external law firm - by thinking more like her clients, and not just as an outside lawyer.
Hogan Lovells became a top 10 global legal services provider on 1 May 2010 through an unprecedented combination of two firms with international credentials, U.S.-based firm Hogan & Hartson and European-based firm Lovells. Modern-day Hogan Lovells carries on the tradition of excellence established by our founders and further builds on their legacy.
