With summer fully upon us and a host of new stories emerging from the world of law, we are happy to present the June 2023 edition of Lawyer Monthly Magazine. We are now halfway through the year, and it is shaping up to be an impactful one indeed. Our front cover feature for the month comes from Nikos Koritsas and Nikos Salakas at Koutalidis Law Firm, who speak to Lawyer Monthly in an exclusive interview. Prolific lawyers in the Greek legal sphere, they share details of their work to enable Greece’s economic recovery during its economic crisis in 2012. Their fascinating insights into their work and their careers to date can be read on page 14. Elsewhere in this edition, you can find incisive op-eds from many more of the legal sector’s most skilled practitioners. Of special note are our three My Legal Life profiles, which this month cast a spotlight on Marc Bern, Leon Versfeld and Brad Andringa. Beginning on page 22, these articles cast light on some of the most talented legal experts active in the profession today. As with previous editions, this month’s magazine comes equipped a full range of legal news stories and lawyer moves, as well as special features that focus in on popular topics developing in the legal world – from AI and digital tools to the factors that sunk the world’s biggest M&A deals. You can be sure to find something of interest in these pages, whatever your area of expertise. We hope that you enjoy this edition. LAWYER MONTHLY©2023 Universal Media Limited Lawyer Monthly is published by Universal Media Limited and is available on general subscription. Readership and circulation information can be found at: www.lawyer-monthly.com. The views expressed in the articles within Lawyer Monthly are the contributors’ own. All rights reserved. Material contained within this publication is not to be reproduced in whole or in part without prior permission. Permission may only be given in written form by the management board of Universal Media Limited. Approx. 302,000 net digital distribution. Oliver Sullivan Editor Lawyer Monthly Welcome to Lawyer Monthly Magazine JUNE 2023 EDITION @lawyermonthly @LawyerMonthly @lawyermonthly company/lawyer-monthly Universal Media Limited, PO Box 17858, Tamworth, B77 9QG, United Kingdom 0044 (0) 1543 255 537 Production Team: Emma Tansey, Luke Ostle, Nathan Athersmith production@lawyer-monthly.com Sales Enquires: Jacob Mallinder Jacob.mallinder@universalmedia365.com
14
Contents 28 34 6 Monthly Round-Up 10 Lawyer Moves FEATURE OF THE MONTH 14 Nikos Koritsas and Nikos Salakas How Did the 2012 PSI Alleviate Greece’s Debt Crisis? MY LEGAL LIFE 24 Marc Bern Securing Compensation for Environmentally Injured Victims 28 Brad Andringa Securing Veterans’ Disability Benefits 34 Leon Versfeld Addressing M&A Concerns in Companies with Foreign Workers SPECIAL FEATURES 42 The Biggest M&A Deals That Never Were Oliver Sullivan, Lawyer Monthly 46 What Are the Practical Use Cases for Generative AI in Legal? Jan Van Hoecke, iManage 50 How to Become a Digital-First Law Firm Doug Hargrove, Advanced EXPERT INSIGHT 56 Exploring Wage and Hour Disputes in California Marian Birge, Garcia & Birge 60 Mining Law and Rights in the Philippines Victor Angelo L Galura, OCDOCC THOUGHT LEADER 66 Arbitrating in Multi-Jurisdictional Disputes Jan Heuvels, Heuvels Law 72 Projections for South African Patent Law in 2023 Lance Abramson, Spoor & Fisher 76 A Guide to Subrogation Actions in Brazil Luis Felipe Pellon, Pellon & Associados 80 Copyright and IP Law Trends in Ecuador José and Sebastián Meythaler, Meythaler & Zambrano TRANSACTIONS 84 What’s Happening in the World of M&As and IPOs?
Trump Ordered to Pay $5 Million in Sexual Abuse Lawsuit A nine-member jury found former president Donald Trump liable for sexual abuse and defamation of writer E. Jean Carroll. “I filed this lawsuit against Donald Trump to clear my name and to get my life back,” Carrol said in a statement. “Today, the world finally knows the truth. This victory is not just for me but for every woman who has suffered because she was not believed.” Trump condemned the verdict on Truth Social, referring to it as “A CONTINUATION OF THE GREATEST WITCH HUNT OF ALL TIME”. verdict was delivered in Manhattan Federal Court. In connection with the count of battery, jurors ordered Trump to pay $2 million and an additional $20,000 in punitive damages. For the count of defamation, Trump was ordered to pay $2.7 million and a further $280,000 in punitive damages. The verdict does not carry criminal implications. The lawsuit relates to an incident that occurred in a New York department store in the 1990s, wherein Carroll alleged that Trump had raped her in a dressing room. The jury found that Trump did not commit rape, but that Carroll had proven “by a preponderance of evidence” that Trump had committed sexual battery against her, and that he had later defamed her by denying her claims. The Monthly Round-Up JUNE 2023 6 LAWYER MONTHLY JUNE 2023
Activision Blizzard Hires Lord Pannick KC in Fight for $69 Billion Microsoft Deal Video game industry giant Activision Blizzard has retained famed UK barrister Lord Pannick KC to represent its appeal against the CMA. “This is not the first time the CMA has effectively halted a major tech acquisition but the appeal process can be a long fight and by the time it is finally resolved the outcome may be the same even if errors are found,” commented Professor Suzanne Rab, competition law barrister at Serle Court chambers. “These cases serve as a reminder to dealmakers of the CMA’s ability to impose very significant worldwide outcomes, including in foreign-to-foreign mergers.” transition,” Homeland Security Secretary Alejandro Mayorkas said in an interview. Despite the influx in migrants, however, the disruption seen on 12 May was smaller than some officials anticipated. Blas Nuñez, the Assistant Secretary for Border and Immigration Policy, said to CNN that there had been no “substantial increase overnight or an influx at midnight” of migrants as the rule expired. Lord Pannick is widely regarded as one of the UK’s foremost barristers, with a history of representing high-profile clients in legal disputes. Recently he represented former prime minister Boris Johnson during the “Partygate” investigation, and in 2003 he acted for Queen Elizabeth, winning an injunction against the Daily Mirror after a journalist posed as a Buckingham Palace footman. The move follows the blocking of a historic $69 billion merger The Department of Homeland Security estimated that 23,000 migrants were in Border Patrol custody 24 hours after the expiration of the rule, with Texas cities including Laredo, El Paso and Brownsville already having declared a state of emergency ahead of time as they prepared for an increase in migrant activity. Title 42 was initially imposed by the Centers for Disease Control (CDC) during the between Activision Blizzard and Microsoft by the CMA, the UK’s competition watchdog. Activision Blizzared CEO Bobby Kotick vowed to fight to continue the deal, which if successfully closed would constitute the highest-value deal in the video game industry to date. The company’s hiring of Pannick provides a clear indication of its seriousness in appealing the watchdog’s decision. COVID-19 pandemic as a measure to slow the spread of coronavirus, with 2.8 million migrants being turned away under the rule. Now, under Title 8, asylum seekers who enter the US illegally will be detained, deported, issued a five-year ban on re-entry and may face criminal charges. The changeover period has left many of the gathered asylum seekers in legal limbo. “We knew this was going to be a difficult MONTHLY ROUND-UP 7 Tens of thousands of asylum seekers gathered at the US-Mexico border following the expiration of Title 42 and an ensuing immigration rules transition. Uncertainty at US Borders as Title 42 Expires
Monthly Round-Up JUNE 2023 American Airlines and JetBlue Partnership Struck Down in Federal Court Allen & Overy Announces $3.4 Billion Merger With Shearman & Sterling A federal judge has ordered American Airlines and JetBlue Airways to break up their alliance after finding that the arrangement means higher prices for consumers. In one of the biggest transatlantic legal deals in history, UK 'magic circle' law firm Allen & Overy has announced a merger with New York's Shearman & Sterling. the companies’ Boston and New York businesses. “It makes the two airlines partners, each having a substantial interest in the success of their joint and individual efforts, instead of vigorous, arms-length rivals regularly challenging each other in the name Allen Overy Shearman Sterling, or A&O Shearman for short. The firms’ combination is expected to accelerate mutual growth strategies. Shearman & Sterling will gain access to a global network of practices, while Allen & Overy will gain expanded access to a corporate client base in the US. “This combination of two great firms is such an exciting step for us,” said Wim Dejonghe, senior partner at Allen & Overy. “Both firms have a history of excellence, and together we think A&O Shearman will be marketplace of competition,” Sorokin said in his ruling. The airlines were ordered to end their partnership within 30 days, which is likely to imperil their operations during the looming summer travel season. A JetBlue spokesperson said that the airline was in the process of studying the ruling and evaluating its course of action. “We are disappointed in the decision,” the spokesperson said. “Through the NEA, JetBlue has been able to significantly grow in constrained northeast airports, bringing the airline’s low fares and great service to more routes than would have been possible otherwise.” a firm unlike any other in the world. We have listened to our clients and their requests for the highest quality advice to help navigate the demands they face, and to do so in an integrated and globally consistent way.” Adam Hakki, senior partner at Shearman & Sterling, also hailed the merger. “This is truly a game-changing moment for both firms that will create an unparalleled offering for our clients. It is also a fantastic opportunity for our people to be part of a transformative transaction and an institution of such significance, and we look forward to recruiting even more stellar talent in the coming years,” he said. US District Judge Leo Sorokin found in favour of the Justice Department (DoJ), who brought the lawsuit against American and JetBlue in September 2021. At issue was the airlines’ partnership in the Northeast, which the DoJ alleged was effectively a merger of The merger, which will be subject to a vote by partners at both firms, will create the third-largest law firm in the world with combined revenues of approximately $3.4 billion. The new firm will retain 3,9000 lawyers across 49 offices and boast equal capabilities in US, English and local law, operating under the 8 LAWYER MONTHLY JUNE 2023
Meta Receives Record €1.2 Billion Euro Fine Over GDPR Violations Facebook parent Meta has been struck with a record €1.2 billion ($1.9 billion) fine by Ireland’s Data Protection Commissioner (DPC) after the company continued to transfer EU user data to the US after a 2020 EU court ruling that invalidated its EU-US data transfer pact. The fine tops the record previously held by Amazon. com when a Luxembourg court called for a €746 million ($1.2 billion) EU privacy fine against the company in 2021. For its violation, Meta has been given five months to end data transfers to the US. Meta has vowed to fight the “unjustified and unnecessary” fine, which it claims “sets a dangerous precedent” regarding data transfers made by other companies. Meta added that it expected a new pact to facilitate the safe transfer of EU citizens' personal data to the United States would be fully implemented before it had to suspend transfers. The company has previously warned that a halt in data transfers could force it to suspend Facebook services in Europe. Austrian privacy campaigner Max Schrems said in a statement that the new plans were unlikely to be a permanent fix. "In my view, the new deal has maybe a 10 per cent chance of not being killed by the CJEU," he said. "Unless US surveillance laws get fixed, Meta will likely have to keep EU data in the EU." MONTHLY ROUND-UP 9
Lawyer Moves RECENT APPOINTMENTS FROM ACROSS THE GLOBE International law firm Addleshaw Goddard has appointed M&A partner Hardeep Plahe to its corporate team in London. Plahe joins AG from Gibson Dunn in London. With over 16 years of experience in the Middle East, his appointment bolsters the firm's cross-border M&A work and the Corporate team's capabilities in London and the Middle East in addition to enhancing AG’s financial regulatory coverage in the region. Plahe spent over a decade in Gibson Dunn’s Dubai office, including over four years as the Dubai managing partner. He also spent over a decade at Linklaters in both London and Dubai. Plahe has a broad practice covering M&A, joint ventures and investment transactions across a range of industries. He has a particular specialism in the financial services sector, where he has advised on both M&A and financial regulatory work in the Middle East. His clients have included multinational companies, financial institutions, private equity firms, sovereign wealth funds and governments. "We welcome Hardeep to the London Corporate Team at a significant time of growth for the firm both in the UK and internationally,” said Chris Taylor, AG’s Head of UK M&A. “With deep experience in the GCC, Hardeep's practice will seamlessly bridge our Middle East and London offices, adding further strength to our existing international platform to ensure maximum impact for our clients across multiple jurisdictions." Allen & Overy is strengthening its Asia Pacific corporate practice with the hire of Kenny Kwan and Caryn Ng, leading equity capital markets and public M&A lawyers, as partners in Singapore. They both join from Baker McKenzie in Singapore. Kenny Kwan rejoins A&O, having worked at the firm previously from 2009 to 2017. He specialises in mergers and acquisitions, capital markets transactions, funds and general corporate matters under Singapore law. He also has US securities law experience, acting as both issuers’ and underwriters’ counsel on US registered offerings, Rule 144A/Regulation S offerings and ADR offerings. Caryn Ng specialises in equity capital markets and corporate finance, with a crossover interest into the private equity space. She has represented issuers and underwriters in numerous securities listings on the Singapore Exchange Securities Trading Limited (SGX-ST). Tim Beech and Gautam Narasimhan, joint managing partners of A&O’s Singapore office, said: “Kenny and Caryn’s expertise and market recognition significantly strengthens our Corporate practice in Singapore. Singapore has a natural position as the capital markets centre for ASEAN companies and businesses. Kenny and Caryn’s high-calibre corporate practice in the key Asian markets complements our strong corporate team.” Addleshaw Goddard Adds Partner to Its M&A Team Allen & Overy Grows Its Singapore Corporate Practice With Two New Partner Hires London, United Kingdom Addleshaw Goddard Singapore Allen & Overy Ireland DLA Piper 10 LAWYER MONTHLY JUNE 2023 Global law firm DLA Piper has appointed Matthew Cole as the new head of its corporate practice in Ireland. He takes over with immediate effect from Éanna Mellett, who has completed a successful four-year term in the role and will continue as a corporate partner. Cole joined the firm as a partner in 2020 and has since been a core part of the Irish corporate team and one of the firm’s most active M&A partners. “We are delighted to announce that Matt has been appointed as head of DLA Piper’s corporate practice in Ireland,” said David Carthy, country managing partner at DLA Piper. “Matt has led on some of Ireland’s most significant cross-border M&A and private equity transactions over the past few years. M&A and private equity will continue to be growth drivers for the corporate practice going forward, and with his experience I have no doubt that Matt will lead the practice very successfully in its next phase.” In a statement on his appointment, Cole added: “I am delighted to take the reins of DLA Piper’s corporate practice in Ireland. The group has gone from strength to strength under Éanna’s stewardship and its success is helping to drive momentum for the firm in Ireland.” DLA Piper Appoints New Head of Corporate Practice
Global law firm Baker McKenzie has announced the appointment of four new Global Practice Group and Industry Group leaders. All appointments will be effective from 1 July 2023. London-based intellectual property partner Eva-Maria Strobel and technology partner Steve Holmes will be taking over from Anne-Marie Allgrove as CoChairs of the Global Intellectual Property, Technology and Data Practice Group. Meanwhile, Washington-based tax partner James Wilson will be taking over from Antonio Russo as chair of Baker McKenzie’s Global Tax Group, and Singapore-based Emmanuel Hadjidakis, who also leads the firm’s banking and finance practice in Asia Pacific, will be taking over from Jonathan Peddie as chair of the Global Financial Institutions Group. Baker McKenzie's Global Chair Milton Cheng said in a statement on the appointments: “I am delighted to announce the new Global Chairs in these important areas of growth for the firm. It is through these and our other practice and industry groups that we are able to be at the forefront of the trends that matter most to our clients." Baker McKenzie Appoints New Global Practice Group and Industry Group Leaders Jones Day announced that Ted Powers has joined the firm as a partner in its corporate practice. He will be based in Jones Day’s New York Office. Powers brings more than 20 years of experience practicing corporate law, including private and public mergers and acquisitions, asset and stock transactions, minority investments and general corporate and securities matters. He has played a lead role in negotiating, managing and implementing a number of high-stakes private equity, M&A and corporate transactions for clients in a wide range of industries. The newly structured corporate practice which Powers joins encompasses both M&A and private equity. Powers’s practice will primarily focus on advising private equity sponsors and their portfolio companies. “Ted works closely with directors, senior managers and executive leadership as a valued business partner to successfully implement important transactions,” said Andy Levine, Co-Head of Jones Day’s corporate practice. “His complementary experience in private equity and public M&A align in a deal market where the two areas increasingly overlap and sponsors increasingly transact.” Jones Day Bolsters Corporate Practice With New Private Equity Partner United Kingdom & USA Baker McKenzie New York, USA Jones Day LAWYER MOVES 11
In our latest edition, we are proud to feature an exclusive interview with Nikos Koritsas and Nikos Salakas at Koutalidis Law Firm in Greece. Well-versed in both domestic and international banking and finance matters, the two participated in one of the most significant legal actions of recent history: the private sector involvement that enabled the restructuring of the Greek economy. We invite you to read on as these two high-flying lawyers share more about the 2012 private sector involvement and its significance to the recovery of Greece as a nation. FEATURE OF THE MONTH
14 LAWYER MONTHLY JUNE 2023
with Nikos Koritsas and Nikos Salakas at Koutalidis Law Firm How Did the 2012 PSI Alleviate Greece’s Debt Crisis? FEATURE OF THE MONTH 15 In 2012, the Greek economy was in dire straits. With a growing fiscal debt crisis that threatened to strike other EU members and the currency itself, a rescue operation was mounted that involved hundreds of billions of euros’ worth of financial aid and an unprecedented private sector involvement (‘PSI’) to enable Greece to restructure its economy. This month we have the pleasure of hearing from Nikos Koritsas and Nikos Salakas at Koutalidis Law Firm, both of whom were deeply involved in the PSI process. Sharing firsthand knowledge of the proceedings, they shed light on the many challenges involved in each step and the consequences for Greek society that continue to be felt after ten years.
To begin with, could you please give us some background information into the state of Greece’s debt burden in 2012? The Greek financial crisis started to surface in 2009 with a loss of confidence in the officially reported statistical data by the Greek Authorities. Following early elections and a change in the government in October of 2009, the officially reported fiscal deficit was revised through a Statement by the Governor of the Bank Greece from 6%, which was the deficit communicated in August of 2009 pre-election, to “12% of the GDP or higher”. This revealed the weaknesses of the Greek statistical system and triggered an intervention of Eurostat in order to identify and fix said weaknesses, in collaboration with ELSTAT, the Greek statistical authority. Nevertheless, it also led to a loss of confidence of the markets in Greece. Suddenly, the markets closed for a member of the eurozone, an economic elite currency union which was totally unprepared for such an occurrence and was caught by surprise. The euro was at risk, as contagion for other eurozone members seemed inevitable given their exposure to the Greek sovereign debt. This led to first rescue package for Greece of €110 billion. As no stability or support mechanism existed in the EU at the time, the package was made available to Greece by certain eurozone members (€80 billion) and the IMF (€30 billion), which was invited to support the process by contributing its expertise in sovereign debt restructuring. The first rescue package came with a memorandum setting out a long list of structural changes as prior actions, aimed at helping Greece to overcome the situation. Nonetheless, it was obvious that it was a temporary and imperfect solution. In July of 2011, the heads of state of the euro area and EU institutions published a statement acknowledging the efforts made by the Greek government to stabilise public finances and reform the economy. Moreover, the statement made express the intention of eurozone members to further support Greece (with the IMF) through a new program in order to cover the financing gap, estimated at the time at €109 billion. This second program would be made available through the then newly-established rescue fund of the European Financial Stabilisation Mechanism, the European Financial Stability Fund and the European Stability Mechanism, an EU treaty institution established in the meantime in response to the crisis. On the other hand, the statement set the Private Sector Involvement (‘PSI’) as a strict conditionality to the voluntary contribution of the private sector in this burdensharing. As EU banks and insurance companies were the majority holdings of the Greek Government Bonds (‘GGBs’) in the private sector, a first proposal for the PSI was tested with them, offering four options for exchanging their GGBs with new ones that had longer maturities and implied an NPV loss of approximately 21%. Soon, however, it became apparent that this was not enough, as the macroeconomic projections had further deteriorated for Greece and its sovereign debt was on an unsustainable path. In October of 2011, the Eurogroup came out with a very comprehensive statement on Greece, stating again its support to Greece but making also clear that the PSI had a vital role in establishing the sustainability of the Greek debt, targeting a 120% debt to GDP in 2020. To achieve this, the private sector was invited to accept a voluntary GGBs exchange with a nominal discount of 50% at the beginning of 2012. By the end of 2011, the Greek sovereign debt exceeded €350 billion, €205 billion of which were held by the private sector through GGBs. This was the perimeter of the eligible GGBs invited in the PSI exchange. 16 LAWYER MONTHLY JUNE 2023 This unprecedented experience gained by our team through its participation in the PSI was applied in virtually all of the smaller or larger debt restructurings in which Koutalidis Law Firm was involved post-PSI.
How did the private sector come to alleviate the burden, and how was this done? What made this debt exchange transaction extraordinary? The PSI is the largest restructuring of sovereign debt to date. But it was not only this that made it unique. One of the most important features of the PSI was the constitution of a steering committee of creditors following the initiative of the Institute of International Finance (‘IIF’) and some of the largest European banks. The forming of steering committees of creditors was a practice that had been abandoned for several years in sovereign debt restructurings, but given the size of the PSI and the timeframe for its consummation, the private sector creditors decided to move forward with a committee. This committee, which was informally constituted, led the negotiations with Greece, which was undergoing an unprecedented financial and political crisis with riots in the streets on a daily basis and a coalition government with very narrow margins of tolerance by the electorate. Had this steering committee not existed, it is highly arguable whether the PSI would have been completed. Further, the PSI was structured as a voluntary and majority-based exchange. Although the vast majority of the GGBs was governed at the time by Greek law, which theoretically allowed Greece to simply pass a law imposing a haircut on its creditors, which itself would have exposed Greece to high risk of challenges both under the Greek Constitution and the European Convention on Human Rights, Greece opted for a consent solicitation and the retroactive introduction of collective action clauses in the Greek lawgoverned GGBs (‘CACs’). Under these CACs, all Greek law-governed GGBs (aggregating to approximately €172 billion of face value) were treated as one series, whilst quorum for accepting the exchange was set at 50% and majority at 2/3 of those tendering their GGBs. Non-Greek law-governed GGBs (of approximately €19.9 billion face value) and some bonds guaranteed by Greece (of approximately €6.7billion) that were invited in the PSI included their own CACs. This meant that the whole of the range of eligible bonds that were invited in the exchange included CACs, increasing the chances of success and reducing the legal risk for challenges. To avoid contagion risk, GGBs held by the public sector were excluded from the PSI. 31 December 2011 was set as the cut-off date for GGBs eligible for the PSI and so, shortly before its announcement, GGBs of approximately €43 billion face value held by the ECB and €13.5 billion held by national central banks were exchanged with newly issued GGBs with identical characteristics. In this way, public sector GGBs were not invited in the PSI. FEATURE OF THE MONTH 17
18 LAWYER MONTHLY JUNE 2023 On 24 February 2012, Greece announced the invitations for the PSI. Approximately €206 billion worth of GGBs were invited in the exchange, whilst GGBs holders were offered the following for every €1,000 face value of existing GGBs: (i) €150 of EFSF 1y and 2y notes (cash equivalent); (ii) €315 of new GGBs, including 20 different series maturing from 2023 to 2042 with a step-up coupon structure; (iii) €315 of notional of GDP-linked securities; and (iv) short-term EFSF notes for any accrued interest. The new GGBs would be governed by English law, subject to the jurisdiction of English courts and contain negative pledge and cross-default provisions. Most importantly, however, they were made subject to a co-financing agreement with one of the EFSF facilities, which provided for a pro-rata redemption with the EFSF. This amounted to a face value ‘haircut’ of 53.5% and an implied NPV haircut of 74%. A 90% minimum participation threshold was set by Greece as a condition for the exchange. On 9 March 2012, the Greek government announced that 91% of the €177 billion Greek law-governed GGBs with the new CACs had been tendered, with 94% of those tendered accepting the exchange. Almost all guaranteed GGBs were exchanged. The acceptance of foreign law-governed GGBs was initially lower, but following two extensions the percentage increased significantly. Finally, GGBs of €199.2 billion face value participated in the PSI and were exchanged for €29.7 billion of EFSF notes and €62.4 billion of new GGBs. The exchange was successful, paving the way for the second rescue package by the official sector for Greece – this time through the EFSF rather than direct facilities of other EU members – and reducing the risk of a collapse of Greece and the eurozone as a whole. As is the case in every Greek tragedy, however, someone had to be sacrificed for the catharsis to occur. Undoubtedly, in the PSI drama, these were the Greek banks. With an immediate loss estimated to €38 billion as a result of their participation in the PSI, their regulatory capital ratios fell below minimum regulatory levels overnight. The Hellenic Financial Stability Fund, the investment arm of the Greek government, established in the meantime for supporting the recapitalisation and consolidation of the Greek banking sector with EFSF funds, had to step in and provide immediate support in order to avoid the banking licenses’ immediate revocation by the Bank of Greece (as at the time the ECB had not taken over the regulatory supervision of systemic banks). Three rounds of recapitalisation of Greek banks had to be completed following the PSI in 2013, 2014 and 2015 (involving further private sector involvement) so that the Greek banks could address the regulatory requirements triggered by the PSI, as well as a wave of NPEs and NPLs that was caused by financial crisis. Further, the sector underwent a massive consolidation with just five banking licenses surviving: four systemic and one non-systemic. The very fact that the Greek sovereign debt crisis was not triggered by the banking sector, as was the case in other sovereign debt crises, but rather by unfortunate fiscal policy and public The PSI reaffirmed that there are some key principles that must be followed and applied in all kinds of debt restructurings.
kinds of debt restructurings. That was a significant lesson learned for our team. Having all (or as many as possible) of the creditors round the same negotiating table is one of those principles. The ranking of claims should be very carefully considered and respected through intercreditors (such as the co-financing agreement between PSI bondholders and the EFSF), securing for equally ranking claims pari passu and pro rata payments (a matter which resulted in litigation for several years in Argentina’s debt restructuring where this principle was challenged – see NML Capital Ltd v Republic of Argentina). Avoiding coercive action, unless absolutely necessary, is another lesson. Coercive action in democracies, even where intense public interest may be served, triggers high litigation risks. Consensual solutions should be preferred. Greece made the right choice in preferring a consent solicitation and an even retroactively enacted set of CACs, leading to a restructuring based on majority decision to a unilateral reduction of its debt imposed through legislative acts, giving Greece a moral high ground, which no judge can ignore. Burden-sharing by the private sector in large restructurings is also a principle which was confirmed through the PSI. In the aftermath and experience of the Lehman Brothers financial crisis, governments were reluctant to use taxpayers’ money in a debt restructuring even of a sovereign without first seeing the private sector sharing part of the financial burden. This is a principle introduced and cemented also in the legislation and tools developed for bank restructurings and resolutions (SRMR and BRRD, ESM DRI etc.) in response to the Lehman Brothers crisis. In line with this, the effective priority of official sector money through the exemption of the GGBs held by the ECB, the National Central Banks and other Official Sector Institutions from the PSI, was also significant. This unprecedented experience gained by our team through its participation in FEATURE OF THE MONTH 19 such as the significance of the so-called ‘local law advantage’ (namely the power of a sovereign to unilaterally amend debt governed by its laws by enacting amendments) and the choice of the clearing system (in Greece) weighted against the governing law (English) for debt instruments such as the GGBs, to constitutional rights issues, such as the compliance with the Greek Constitution of the retroactive enactment of CACs, the number and complexity of the questions and issues raised was unique. Furthermore, the exposure and experience of advising more than 40 international and Greek banks and insurance companies, through a steering committee organised by the IIF in direct negotiations with the head of government and ministers of an EU sovereign, was a once-in-a-professional-lifetime experience. Above all, however, the PSI reaffirmed that there are some key principles that must be followed and applied in all overspending, made the Greek banking drama even bigger. How were your team at Koutalidis involved in this? What were your respective roles? The restructuring team of Koutalidis Law Firm acted as the Greek counsel to the Steering Committee of private sector creditors, both in the first (but unfinished) attempt for the PSI between July and October of 2011 but also in the actual PSI exchange in 2012. Allen & Overy acted as international counsel in the first attempt, joined by White & Case in the 2012 PSI. The experience gained by our team and the challenges faced were unique. First of all, the very participation in a legal team composed of leading practitioners from two of the top-tier international law firms, working around the clock for almost five months, was an intensive course on coordination and collaboration. Further, the complexity and challenge of the legal issues of PSI was unprecedented. Ranging from conflicts of laws questions, The PSI was one of the key milestones in mastering the Greek financial crisis, but it left deep scars in the Greek economy and society.
20 LAWYER MONTHLY JUNE 2023 About Koutalidis Koutalidis Law Firm is a leading law firm based in Athens, Greece. Founded in 1930, the firm serves major Greek and international corporations as well as significant investment and commercial banks and financial institutions. Koutalidis’s 60-strong team of legal experts have been recognised by numerous bodies for their excellence, including Chambers and Partners and The Legal 500. About Nikos Koritsas Nikos Koritsas is managing partner of Koutalidis Law Firm. Drawing upon his extensive and internationally acclaimed experience in M&A, banking, capital markets, finance and restructuring, he leads the Koutalidis team with excellence-driven client solutions at the forefront of his strategy. Nikos Koritsas is recognised as a top-tier lawyer by IFLR, and his work focuses on challenging undertakings and complicated projects both in the Greek and the international corporate market. About Nikos Salakas Nikos Salakas is a partner at Koutalidis Law Firm and head of its banking and finance practice. With extensive experience in banking, finance and restructuring, capital markets, project finance and M&A, he is particularly active in complicated domestic and international transactions and has repeatedly been acknowledged by international legal directories for his successful track record, including as a Market Leader by IFLR. Nikos has also served as Chief Legal & Governance Officer and ExCo Member of a Greek systemic bank. Contact Nikos Koritsas, Managing Partner Nikos Salakas, Head of Banking & Finance Koutalidis Law Firm The Orbit, 115 Kifissias Ave, Athens 115 24, Greece Tel: +30 210 3607811 E: nkoritsas@koutalidis.gr nsalakas@koutalidis.gr www.koutalidis.gr the PSI was applied in virtually all of the smaller or larger debt restructurings in which Koutalidis Law Firm was involved post-PSI. How have things progressed now that a decade has passed since the PSI? What has the impact been for the Greek state and economy? The PSI was one of the key milestones in mastering the Greek financial crisis, but it left deep scars in the Greek economy and society. The financial impact on social security funds, banks and corporates from their participation in the PSI exchange was perhaps unmeasurable. A wave of legal cases and challenges made their way through the Greek courts, the European Court of Human Rights, the International Centre for Settlement of Investment Disputes and any other venue lawyers could think of. Moral, legal and social arguments were ignited and lasted for years before they were settled. A financial crisis of such size and strength, which lasted for more than a decade, threatened the unity – if not the very existence – of the eurozone, triggered a deep political crisis for several years in Greece and caused the imposition of capital movement restrictions in the Greek banking system for almost four years, required huge sacrifices. With hindsight, these were worthwhile. Greece, leveraging on the reprofiling of its sovereign debt that followed the PSI and the structural changes introduced in response to the crisis, is now one of the strongestperforming economies in the world that has been least affected by economic downturns. Let’s hope that in the years to come, Greece and its people will not forget the lessons learned from the PSI and the financial crisis and never again will have to make similar sacrifices.
Each month, Lawyer Monthly Magazine has the privilege of interviewing the brightest and most ambitious movers in the legal space. In these conversations we dig into their areas of expertise, learning more about their practice and the stories behind their pursuit of excellence. Three exceptional authors are featured in this month’s My Legal Life section. Overleaf, we speak with Marc Bern, Brad Andringa and Leon Versfeld on each of their practices, covering aspects of law as diverse as environmentally incurred injuries, veterans’ disability benefits and M&A matters between companies that employ foreign workers. MY LEGAL LIFE
24 LAWYER MONTHLY JUNE 2023
Marc Bern In your practice and the US more widely, what would are the most common kinds of hazardous environment-related injuries that give rise to lawsuits? At the top, I would say that there are the toxins that particularly cause various types of cancers, whether it be lung cancer or kidney cancer or numerous others that, depending on the toxin, would be related to those exposures. Additionally, serious pulmonary problems such as asthma and potentially COPD and other serious conditions that can cause lifelong problems. My Legal Life Securing Compensation for Environmentally Injured Victims As a series of recent train derailments in the US have demonstrated, there is an ever-growing public awareness of hazardous materials in the environment and the damage they may cause. Speaking with us this month is Marc Bern, a prolific environmental lawyer who has worked on some of the most significant litigation of the past three decades. In this exclusive interview, he shares the insights he has gained over a storied career of seeking justice for environmentally injured clients. MY LEGAL LIFE 25 What are the key pieces of environmental law upon which these suits are based? This depends on the cause, of which there are so many different types. For instance, you might have air pollution caused by an incinerator that has been burning negligently and releasing toxins into the air that people are breathing. You might have toxins dumped into reservoirs that people are exposed to by drinking the contaminated water. You might also be familiar with a lawsuit that is now pending on behalf of marines and employees at Camp Lejeune in North Carolina, where the government was actually dumping various very serious toxins into the drinking water that people at the marine base were exposed to over many decades. Years ago, there was a gasoline additive called methyl tertiary butyl ether (MTBE) which was added to the gas by congressional approval, and it turns
out that that leached out of the gas and went into the groundwater, which was contaminated in various areas throughout the United States. This led to millions (if not hundreds of millions) of dollars in monitoring costs, building new facilities, operations and maintenance. Fortunately, there were not a lot of personal injuries, but it was damage to the environment and damage to the environment. In cases such as these which make it to trial, how is liability typically demonstrated? We have to go about it in a number of ways. Ultimately, the proof is through expert testimony. We have experts in air quality, water quality, the types of releases that cause the various environmental damages, and of course medical personnel who are involved particularly in environmental causes of cancers and pulmonary injuries. All of those types of injuries of that nature. Taking a wider look at things, what significant developments in environmental law and litigation have you observed during your time in practice? Well, I have been in practice since 1975, and the area of environmental law – although it has always been out there to a degree in the tort system and in the American jurisprudence – is becoming more and more important every day. Recently, Congress has begun passing laws in respect to what are called ‘forever chemicals’ (PFAS). So the knowledge of the dangers and the problems caused by environmental exposures is certainly becoming more widely known every day. People understand the dangers caused by toxic releases, by various chemicals that were thought years ago to be either safe or less harmful than we now know that they are. With that increased awareness on the rise, do you see similar major developments on the horizon for environmental law and victims’ compensation? Yes, though it all depends. For instance, I was intimately involved in the litigation involving the World Trade Center several years ago as a result of its collapse. Virtually every toxin known to mankind was involved, whether it was in the end or in the ground. As a result of that, we represented over 11,000 individuals who received compensation, and then a law was enacted by Congress – the Zadroga Act – which goes on basically to the end of this century. The law enables people exposed to the toxins to make a claim and be compensated for various cancers and, again, pulmonary injuries. I believe the same type of thing will happen with this currently ongoing Camp Lejeune litigation. Hundreds of thousands of victims who were exposed to these toxins over many decades will hopefully compensated in a way that will be relatively quick and make sure that people who were exposed over 50 years ago – if they are still alive – will be likewise compensated. 26 LAWYER MONTHLY JUNE 2023 I believe that the civil justice system is one of the primary ways where we are able to right wrongs – whether it be by negligence or harm in the environment. While we are on the topic of environmental law and compensation, is there anything that you would like to add to the discussion? As I mentioned earlier, there has been a lot of publicity recently with respect to train derailments, and particularly the one in Palestine, Ohio, where a Norfolk Southern train was derailed while carrying many carloads of toxin that may be contaminating the soil, the air and the water. Currently the investigation to determine the extent of the damage is ongoing. It does appear that, since this derailment, there have been a number of additional derailments of trains - and apparently several were carrying various toxins that, again, must be investigated to determine what happened to the soil, the groundwater and the air. I also mentioned incinerators that have been negligently burning and causing contamination in the air from the various types of substances that incinerators are permitted to burn and get rid of, yet which often burn out of control. Finally, as a part of the legislation that enacted the law with regard to Camp Lejeune in North Carolina, another aspect of that law had to deal with the burn pits in Afghanistan and Iraq and the types of materials that were burned by the United States Armed Forces in those areas, once again causing serious harm to the environment and the air in particular.
MY LEGAL LIFE 27 those who have suffered as a result of their exposures from Ground Zero is certainly a highlight of my career. I have also been in many other cases that have been, personally, very satisfying to me. I was involved in the litigation involving the Costa Concordia, the cruise ship that went down in Italy; I represented many of the individuals in the shooting at the Aurora Theater in Colorado, and as I said I was involved in the opioid litigation – something that is very important to me. I am actually on the board of directors of a drug policy initiative where we are trying to make national policy with respect to various types of drugs, including marijuana, fentanyl and several others. What is it that motivates you to excel in your work? I want to help people. I believe that the civil justice system is one of the primary ways where we are able to right wrongs – whether it be by negligence or harm in the environment. As I said regarding the railroad workers that need help, those people that need a voice have always been those I desire to help. Could you tell us a little about your personal journey into law and your career development to date? I originally completed my degree in 1975. I started practice in the State of Wisconsin and eventually moved to New York in 1981, where I have basically practiced continuously since. Throughout those many years I have worked at various law firms, and in 2015 after the dissolution of my law firm that I had been involved in for over 20 years I started my own firm again. I have a primary office in New York City and large functioning offices in Philadelphia, Los Angeles and Chicago, and I practice throughout the United States. My practice is primarily involved in environmental litigation and the Federal Employers’ Liability Act (FELA), where we represent railroad workers who have contracted cancers as a result of their exposure to volatile compounds and cancer-causing chemicals in their employment on the railroads. I do a lot of toxic exposure and environmental types of cases, and I was also involved in the national opioid litigation. We also do some medical malpractice and general personal injury throughout the country, but we continue to primarily do various types of mass tort litigation. You have mentioned your work on the chemical fallout of the World Trade Center attacks. Would you say that this is one of your career achievements that you are particularly proud of having accomplished? Absolutely. Representing the workers at Ground Zero as well as being intimately involved in the passage of the Zadroga Act and my continuing work on behalf of Those people that need a voice have always been those I desire to help. Marc Bern is the founding partner of Marc J. Bern & Partners LLP, a law firm headquartered in New York City that handles complex litigation across the United States. Marc’s practice is focused primarily on representing plaintiffs in mass torts, environmental litigation, FELA railroad litigation and personal injury and product liability cases. With more than 35 years’ worth of experience as a litigator and having had a hand in some of the most high-profile cases of his time, Marc has been named one of the Top 100 Trial Lawyers by the National Trial Lawyers and has a record of achieving settlements of over $1 million in hundreds of cases. Contact Marc Bern Founder Marc J. Bern & Partners LLP One Grand Central Place, 60 East 42nd Street, Suite 950, New York, NY 10165, USA Tel: +1 212-702-5000 +1 516 361 4909 E: mbern@bernllp.com www.bernllp.com
28 LAWYER MONTHLY JUNE 2023
Brad Andringa Veterans’ disability law plays a vital role in ensuring that those who served their country receive the benefits and support they deserve. This body of law aims to provide compensation and support to veterans who have suffered disabilities as a result of their military service. The key legislation that forms the basis of veterans’ disability law in the United States is the Veterans Benefits Act of 1957, which established the Department of Veterans Affairs (VA) and created a system to provide disability benefits to eligible veterans. Over the years, additional laws have been passed to expand and refine the benefits available to disabled veterans. The VA operates the Veterans Benefits Administration (VBA), which is responsible for evaluating disability claims and determining eligibility for compensation and other benefits. To qualify for disability benefits, a veteran My Legal Life Securing Veterans’ Disability Benefits As of last year, nearly 4.9 million US military veterans had a service-connected disability. The process of obtaining compensation for such disabilities can be long and difficult, requiring expertise and persistence on the part of legal counsel to achieve. Brad Andringa, an experienced veterans’ disability attorney, shares more about veterans’ disability benefits and their underlying legislation in this feature. MY LEGAL LIFE 29 must demonstrate that their disability or medical condition is service-connected, meaning it was caused or aggravated by their military service. Service connection in veterans’ disability benefits refers to the link established between a veteran’s current medical condition or disability and their military service. It is a critical requirement for veterans seeking compensation and healthcare benefits from the VA. Service connection recognises that a veteran’s disability or illness is a result of an injury, disease, or event that occurred during their active duty, active duty for training, or inactive duty for training. Veterans separate from military service with a myriad of issues that can be immediate, including disabilities such as loss of limbs or injuries from combat. However, disabilities can also arise decades later after veterans experience harmful exposures during military service, including herbicides such as Agent Orange; burn pits; contaminated water at Camp Lejeune, NC; asbestos on Naval ships; ionising radiation; and firefighting foams commonly known as aqueous film-forming foam (AFFF).
RkJQdWJsaXNoZXIy Mjk3Mzkz