Thank you for opening this magazine. Sadly, this will be my last edition as editor of Lawyer Monthly before the role passes on, but I am happy to be ending my run on a strong issue. As the hot months (mercifully) pass and we approach the end of another year, please join me for one last time as we dive into the latest goings-on in the legal and business worlds. Speaking with us in this month’s front cover feature is Kuldip Bhatti, a leading UK-based notary public. His interview, which you can find on page 14, covers both Kuldip’s own career and the myriad skills possessed by modern notaries. Why are these skills – and the services that notaries offer – so essential to the business landscape as a whole? Read on for some excellent insights. In the My Legal Life section, we speak with two more lawyers of distinction. On page 22 we hear from Stephen Townley on strategies for protecting sport and entertainment brands from litigation risks, and on page 28 Gene Carlino explores the ins and outs of elder law and Medicaid planning. Elsewhere in the magazine are many more features of note, touching on areas as diverse as mediation, the music industry and the climate crisis. Finally, as ever, this new edition comes packed with news stories and M&A insights to help you stay abreast of the latest developments in the legal sector. It has been a pleasure to bring these stories to you each month, and I am enormously grateful to the authors I have worked with and the readers who have followed along with each new release. Here’s hoping our paths will cross again someday. I 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 OCTOBER 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
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Contents 28 22 6 Monthly Round-Up 10 Lawyer Moves FEATURE OF THE MONTH 14 Kuldip Bhatti Understanding the Expertise of a Notary Public MY LEGAL LIFE 22 Stephen Townley Protecting Sport and Entertainment Brands from Litigation 28 Gene Carlino Elder Law and Medicaid Planning in 2023 SPECIAL FEATURES 36 The Music Industry’s Biggest Copyright Battles Oliver Sullivan, Lawyer Monthly 40 Green Litigation: Rising Levels of ESG Claims in the Current Climate Hannah Sharp, Rosling King LLP 44 Golden City Divested After Due Diligence Memo Professor Felicity Gerry, Libertas Chambers EXPERT INSIGHT 50 Climate Change Conflict and the Role of Mediation Paul Sills, Arbitra International THOUGHT LEADER 60 Commercial Litigation Trends in Hong Kong Charles Allen, Reynolds Porter Chamberlain 64 Child Custody Disputes in Finland: The Primacy of Mediation Anne Liakka TRANSACTIONS 76 What’s Happening in the World of M&As and IPOs?
Google Tentatively Settles States’ Play Store Antitrust Case On 4 September, Google tentatively settled a class action lawsuit alleging that its US Play Store violated federal antitrust rules by overcharging customers. scheduled for 6 November along with other parties. The settlement, details of which were not disclosed, remains subject to approval by the court. Lawyers for Google, and the company itself (which had denied wrongdoing in the lawsuit) declined to comment on the settlement. The tech giant is currently facing a number of similar lawsuits claiming that it engaged in illegal tactics to preserve its monopoly in the smartphone industry in selling Android apps and inapp purchases. It is alleged that Google unlawfully mandated that some apps utilise its own payment tools, which give Google a cut of as much as 30% of digital sales proceeds. The lawsuit, which was brought by more than 30 US states on behalf of 21 million customers, claimed that the users might have paid less for apps and received a greater offering of options if not for the Alphabet subsidiary’s monopoly. Lawyers representing the attorney general of Utah, the state leading the claimants, asked for the cancellation of a trial that had been Monthly Round-Up OCTOBER 2023 Trump Pleads Not Guilty in Election Fraud Suit Former US President Donald Trump pleaded not guilty in the wide-ranging Florida election interference case after his indictment in Fulton County in late August. Trump is one of 19 people charged with conspiring to overturn the results of the 2020 presidential election. He faces 13 felony charges, including racketeering, for allegedly pressuring Georgia election officials to change the results of the vote in that state. The former president has repeatedly denied wrongdoing in the case, which he has described as politically motivated. In a document filed on 31 August, he formally asked a judge to sever his case from his co-defendants, who are pursuing a quick trial. Trump attorney Steven Sadow said he would not have “sufficient time” to prepare for trial by 23 October. “Understanding my rights, I do hereby freely and voluntarily waive my right to be present at my arraignment on the indictment and my right to have it read to me in open court,” the signed document stated. After turning himself in at Fulton County Jail, Trump agreed to a $200,000 bail bond and other release conditions, including not using social media to target the codefendants and witnesses in the case. 6 LAWYER MONTHLY OCTOBER 2023
appearance would “emphasise the integrity and solemnity of a federal criminal proceeding”. Legal analysts have noted that the basis of the new gun charges against Biden may be subject to a constitutional challenge, as he has no prior criminal record, possessed the weapon for fewer than two weeks and never used it – and few other individuals fitting this profile have faced charges or prison time. Hunter Biden’s lawyers have stated that he will plead not guilty to three criminal charges stemming from October 2018, when he bought a handgun in Delaware during a period when he was struggling with a crack cocaine addiction. During the purchase, he allegedly lied on the federal firearm application form by stating that he was not using illegal drugs at the time. Biden faces two felony charges punishable by up to 10 years https://commons.wikimedia.org/wiki/File:210120-D-WD757-2097_(50861226426).jpg - (DOD Photo by Navy Petty Officer 1st Class Carlos M. Vazquez II), Author: Chairman of the Joint Chiefs of Staff from Washington D.C, United States https://creativecommons.org/licenses/by/2.0/deed.en (Attribution 2.0 Generic (CC BY 2.0)) each for the incident, and a third charge relating to his possession of the firearm while being a drug user. The third charge carries a maximum prison sentence of up to five years. Magistrate Judge Christopher Burke denied the defence team’s request for a remote hearing in a court order, noting that government prosecutors had already opposed it and adding that an in-person MONTHLY ROUND-UP 7 President Joe Biden’s son, Hunter, will appear in person at a Delaware court on 3 October after his request to appear remotely via video was denied. Hunter Biden to Plead Not Guilty to Three Gun Charges
George R R Martin and 16 Authors Sue OpenAI for Copyright Infringement A group of 17 authors including George R R Martin, John Grisham and Jodi Picoult have accused ChatGPT creator OpenAI of “systematic theft on a mass scale” by training its AI program on their copyrighted works. The lawsuit, which was organised by the Authors Guild, cited specific ChatGPT searches for each author, such as one for Martin that alleged the program generated “an infringing, unauthorised, and detailed outline for a prequel” to his novel ‘A Game of Thrones’ that was titled ‘A Dawn of Direwolves’ and used the same characters as Martin’s existing series. “It is imperative that we stop this theft in its tracks or we will destroy our incredible literary culture, which feeds many other creative industries in the US,” Authors Guild CEO Mary Rasenberger said in a statement. “To preserve our literature, authors must have the ability to control if and how their works are used by generative AI.” In a statement, an OpenAI spokesperson said that the company respected the rights of authors and believed they could benefit from AI technology. “We’re having productive conversations with many creators around the world, including the Authors Guild, and have been working cooperatively to understand and discuss their concerns about AI,” the spokesperson said. This is the second such lawsuit to be filed against OpenAI within a month as fears grow that the works of fiction writers and other writers are being ‘scraped’ by generative AI programs without the IP holders’ permission. Monthly Round-Up OCTOBER 2023 8 LAWYER MONTHLY OCTOBER 2023 https://commons.wikimedia.org/wiki/File:George_R.R._Martin,_presenting_award_the_Hugo_Award_Ceremony_2017,_Worldcon_in_Helsinki.jpg Worldcon 75 - Hugo Awards Ceremony is licensed under a Creative Commons Attribution 4.0 International License. (https://creativecommons.org/licenses/by/2.0/deed.en) (Attribution 2.0 Generic (CC BY 2.0))
Eight Large Banks to Face US Cities’ Bond Collusion Claims DOJ Takes On Google in Groundbreaking Monopoly Lawsuit A US federal judge has said that a group of American cities may pursue class-action claims accusing eight large banks of driving up the interest rates that they paid on a popular municipal bond. Beginning on 12 September, a federal judge has started hearing claims from the US Justice Department (DOJ) and a group of states that Google abused its power as a tech monopoly over online search engine services. Cities led by Baltimore, Philadelphia and San Diego have accused the banks of colluding to raise rates on more than 12,000 variablerate demand obligations (VRDOs) from 2008 to 2016. They said this reduced available funding for hospitals, power and water supplies, schools and transportation, and likely caused billions of dollars in damages. Once a more than $400 billion market, VRDOs are long-term bonds with short-term rates that typically reset weekly. Banks must remarket VRDOs including Apple, Mozilla and Samsung allow Google’s search engine to remain the default for most commonly used computers, smartphones and tablets. The government will argue that Google’s payments to these partners (which sometimes run in the billions of dollars) constitute monopolistic practice and illegally shut out competitors. that investors redeem at the lowest possible rates. In this case, the cities accused the eight banks of conspiring not to compete for remarketing services, and artificially inflating rates by sharing information about bond inventories and planned rate changes. Spokespeople for the banks said differences among the bonds would require many thousands of individualised examinations into whether rate inflation occurred, making a single class-action lawsuit unwieldy. Google has denied the charges, arguing that its popularity is owed to the quality of its search engine. The company claims that customers have a choice to use other search engines, but rely on Google as the most helpful. The case represents the first time a tech giant has been brought to trial over monopoly charges since similar accusations were brought against Microsoft more than two decades ago. The outcome of the trial will provide an indication of how successful US regulators may be in their efforts to rein in the power of large tech firms over the internet and modern infrastructure. US District Judge Jesse Furman in Manhattan rejected efforts by Bank of America, Barclays, Citigroup, Goldman Sachs, JPMorgan Chase, Morgan Stanley, Royal Bank of Canada and Wells Fargo to require cities to pursue claims individually, a move which would likely reduce potential recoveries. In its lawsuit, the government claims that Google illegally stifles rivals by using its partnerships with phone makers and internet browser companies to shut out rival search engines. Google controls a 90% share of the search engine market in the US (91% globally). Its agreements with other firms MONTHLY ROUND-UP 9
Lawyer Moves RECENT APPOINTMENTS FROM ACROSS THE GLOBE Dentons has appointed Michelle Segaert to its corporate practice as a partner, the second such corporate partner to join the firm since June. Segaert has over 20 years’ experience advising on corporate and financial services matters, specialising in financial services regulation and investment funds. She advises on regulatory compliance projects for banks and insurers, and her significant investment funds practice provides advice to mid-market fund managers on the establishment of property, credit, carbon, crypto, venture, water and private equity funds. She also advises on financial services licensing, consumer credit, payments systems, digital assets, anti-money laundering, ESG reporting, credit reporting and financial product advice and distribution arrangements (including credit and insurance). She has extensive experience working with regulators including ASIC, APRA and AUSTRAC. Saegert commented on her appointment: “I am thrilled to join Kym Livesley and Caroline Snow who together lead the Dentons’ corporate team, along with the other corporate partners. Dentons has a depth and breadth across the Australian practice which will service our clients well and provide great opportunities for collaboration.” National law firm Irwin Mitchell has expanded its construction and engineering team with the recruitment of a new partner, Joanna Preece, who will be based in the firm’s London office. The appointment takes the specialist construction team to 15, with four partners and two trainees. The team is led by Mark Clinton and sits within Irwin Mitchell’s property division, which will now number 30 partners and over 150 qualified lawyers. Preece’s appointment is also a boost to Irwin Mitchell’s property team in London, where partner Will Scott recently joined the real estate disputes team. Preece joins Irwin Mitchell from Maples Teesdale LLP, where she was a noncontentious construction partner. She has significant experience providing advice and solutions on potential deal issues to a wide range of clients on large development schemes and is responsible for drafting and negotiating building contracts and the full suite of construction documents. She has also acted on a number of high-profile developments, including advising on the regeneration of Shepherds Bush Market, the redevelopment of Earls Court and Olympia and the financing for the purchase and development of 354-358 Oxford Street, Oxbourne House. Dentons Bolsters Corporate Offering with New Partner Hire in Sydney Irwin Mitchell Adds New Partner to Construction Team Sydney, Australia Dentons London, United Kingdom Irwin Mitchell Germany & Global DLA Piper Global law firm DLA Piper International has appointed Kirsten Lange as a nonexecutive director to its board. Lange previously spent 22 years at The Boston Consulting Group (BCG), ultimately becoming partner and managing director, responsible for a global practice area. During her time with BCG, she offered strategic counsel to a wide range of companies and industries. She has developed an international career background that includes running the Shanghai office for BCG for two years. After many years consulting in the industrial practice, Lange moved into operational C-level leadership in a global engineering business and later was CEO of a machine building company. She took on her first NED role in 2015 on the Supervisory Board and Audit and Strategy Committee of Heidelberger Druckmaschinen. She now sits on the Board of ATS Automation, a Toronto -and New York Stock Exchange-listed company where she is Chair of the ESG committee. “With over 30 years of international management experience, along with her diverse portfolio in board environments, Kirsten will bring invaluable challenge, insight and support to the Board in governing our ambitious strategy,” said Jon Hayes, global cochair at DLA Piper. DLA Piper Appoints New Non-Executive Director to Board 10 LAWYER MONTHLY OCTOBER 2023
Global law firm Freshfields Bruckhaus Deringer has appointed Nathalie Colin as its new managing partner for Belgium. Colin joined Freshfields’ Brussels office with a team in 2020. She is a partner in the disputes, litigation and arbitration group advising Belgian and international corporate and private equity clients, as well as financial institutions on crossborder and domestic disputes, white collar crime and regulatory investigations. She will combine her new role as managing partner with her advisory work. Commenting on her appointment, Colin said: “It is an honour to take on this responsibility from Vincent. I am thankful for the support from the partners and the trust put in me. We continue to pursue our contribution to the success of the firm and its commitment to diversity, ESG and digital transformation.” Colin’s appointment, which came into effect on 1 September, will run for a three-year term. She succeeds Vincent Macq, who previously held the position for six years. “It has been a privilege for me to lead the office over the past six years,” Macq commented. “Looking back, we can all be proud of what we have achieved together and of being part of such a strong and collaborative office.” Freshfields Taps New Managing Partner for Belgium Baker McKenzie has hired Adil Hussain from Clyde & Co as partner and head of its banking & finance practice in the UAE. Hussain has also been tapped as the firm’s new Global Head of Islamic Finance. Hussain, who joined the firm’s UAE offices on 11 September, has practiced in the Middle East for over 18 years, advising some of the industry’s best-known lenders and sponsors in significant banking and finance transactions. He brings a wealth of experience and a deep understanding of the industry. Borys Dzckiw, managing partner at Baker McKenzie UAE, lauded Hussain’s arrival. “We are thrilled to welcome Adil to the UAE partnership,” he said in a statement. “Adil’s extensive banking and finance expertise across both conventional and Islamic finance areas complements our local and regional teams’ transactional capabilities as we continue to deliver top-tier legal advice to clients on their high profile cross-border transactions.” “The appointment also coincides with the firm’s office move to the DIFC. Our new DIFC office will support our growth strategy in key transactional, advisory and dispute resolution practices.” Baker McKenzie Reinforces UAE Banking & Finance Arm with New Practice Head Brussels, Belgium Freshfields UAE Baker McKenzie LAWYER MOVES 11
Kuldip Bhatti joins us with an exclusive interview for October 2023’s front cover feature. A highly proficient notary, Kuldip is the founding director of KB Solicitors & Notary Public and has amassed a wealth of experience serving clients throughout the UK, catering to the notarisation needs of both individuals and businesses. In conversation with Kuldip, we discuss the vital role played by notaries in today’s business climate, as well as taking a closer look at Kuldip’s own practice and career development to date. Touching many sectors of law and business, he has a trove of insights to help shed light on the skills that notaries bring to their work. We urge you to begin reading Kuldip’s story overleaf. FEATURE OF THE MONTH
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Understanding the Expertise of a Notary Public with FEATURE OF THE MONTH 15 The role played by notaries public is one that has become especially valuable in recent years with the advent of Brexit and the continuing fallout of the COVID-19 pandemic. While rarely recognised in the wider corporate space, the services that notaries provide are often integral to the work of both individuals and corporations operating overseas. Experienced notary public Kuldip Bhatti explores some of these aspects in this month’s featured interview with Lawyer Monthly Magazine. What are the services offered by a notary, what is their value to companies and individuals, and how is this changing in the modern age? Kuldip shares his insights along with a look into his own practice and plans for the future. To begin with the basics, what role does a notary perform for a company in the UK? What services can they provide to a corporation or similar organisation? A notary public can legalise many types of documents for companies for use both in England and most commonly overseas. These include: • Documents for setting up companies abroad • Corporate powers of attorney • Certificates of good standing • Apostille and legalisation services • Notarisation of company documents such as resolutions, minutes, Articles of Association, etc. • Notarisation of share certificates • Notarisation of documents required for the sale and purchase of companies Kuldip Bhatti
• Certified copy of company minutes, board meetings and resolutions • Acknowledgements for use in the USA • Certification of trademark documentation • Certification of ID for directors and company secretaries • Certification of the execution of commercial contracts for use outside England and Wales • Affidavits and statutory declarations • Protesting bills of exchange • E-notarisation of some document • Obtaining apostilles on behalf of company clients. How do these differ from the services offered to individuals? When it comes to notarising documents for an individual, these are naturally more personal and do not require authority from an corporate entity. There is a small overlap between companies and individuals, in the sense that a notary public would offer to such services as: • Notarising passports and proof of address • Certifying copies of degree certificates • Certifying change of name documents • Attesting powers of attorneys for use in countries outside England and Wales such as Spain, France and Italy (to name a fe) • Notarising documents to administer estates • Notarising consents for children travelling • Notarising documents for marriages • Notarising documents for adoption • Notarising documents for buying and selling properties • Attesting wills • Notarising oaths • Notarising statutory declarations • Apostille and legalisation services • Notarising acknowledgements for use in the US • Notarising documents for litigation purposes • E- otarisation of some documents • Obtaining apostilles on behalf of lients. What are the most common kinds of work that you undertake on behalf of your corporate clients? I would say the requests I am most often asked to assist on are documents such as witnessing and certifying power of attorneys given by individuals for use outside England and Wales, as well as certifying company documents such as certificates of incorporation and articles of association for use overseas. I am also asked to attend board meetings and board resolutions of company clients so that I can notarise any relevant meetings and resolutions that may be required as they are being relied on overseas. In addition, I am often asked to notarise ID and proof of address documents such as passports and driving licences so that 16 LAWYER MONTHLY OCTOBER 2023 Due to the pandemic, I have seen a large increase in the use of power of attorneys as clients are more reluctant to travel.
What current legal sector trends are you observing? As the world is changing, I have seen the use of more of electronic means to assist the notary. I am pleased to confirm I can also offer the service of e-notarisation of some documents. I am also noticing this is in private practice at KB Solicitors, in that many documents are now sent and completed electronically rather than as it was in the ‘old days’ via post. I have also noticed a trend in the use of social media platforms to not only precure work but also to promote and market oneself. This is not only done through Linkedin but also through other social platforms as Twitter, YouTube and Instagram. I feel this is important as many people use these platforms and this is a good way for lawyer or law firms to interact and communicate with clients or potential clients. Due in part to the aftereffects of the pandemic and hybrid working, prompting a rise in the use of ZOOM and other platforms, some networking events are also being held ‘virtually’, which requires a different skill set of interacting with people rather than seeing and meeting people in person. What advice would you give to a less experienced legal professional looking to become a notary? Be prepared. Whilst it is a very rewarding profession dealing with various types of documents from all over the world, it is also a very challenging profession and a notary must always be diligent and maintain all checks and balances in place to ensure that they are acting in accordance with the rules that govern a notary. Always remember: never be afraid to ask the client more questions, as you must always fully understand what you are doing and what you are being asked to do. As I had drummed into my many times by accomplished notaries in the past, a notary primary role is to act as a ‘gatekeeper’, always ensuring that what is being asked to be done and what is done is correct and to ensure (as you would when you have your solicitor ‘hat’ on) that you have complied with all antimoney laundering and capacity checks that are required. the details of directors of companies based in England and Wales can be added to companies overseas. In the past I have also been asked to verify a company director’s signature on behalf of banks overseas so that the company could make use of all banking facilities that might be open to them overseas. Have you noticed any significant changes in the kind of work that you have been called upon to undertake since you first became a notary public? Due to the pandemic, I have seen a large increase in the use of power of attorneys as clients are more reluctant to travel. Brexit has also had an impact on the kind of work we have been asked to undertake. Since the United Kingdom is no longer part of the EU, I have noticed more demand in documents to be notarised which were not required when I first became a notary (which was obviously pre-Brexit), such as visa applications and banking-related documents. FEATURE OF THE MONTH 17 Always remember: never be afraid to ask the client more questions.
18 LAWYER MONTHLY OCTOBER 2023 After nearly 20 years of toning my legal skills and amassing a great deal of experience. Having qualified as a solicitor at large provincial law firm, I worked in the City of London with a large international law firm and then as a partner with a niche commercial practice for many years. Working in the commercial and corporate departments, I dealt with many transactions that involved jurisdictions outside England and Wales, which therefore required the services of a notary public. I found the work and tasks the notary was tasked to perform interesting and varied and felt this was an area that I would like to be involved in. After nearly 20 years of toning my legal skills and amassing a great deal of experience, I felt I had the necessary skills and expertise and – very importantly – the desire to become a successful notary public. I then embarked on a journey of further studies at University College London in order to finally become a notary public. What do you find the most interesting aspect of your career? I love the fact that I can wear two hats – one as a notary public and the other as a solicitor and founding partner of KB Solicitors Limited. I find this keeps me fresh and challenged every day, which is vital in any career. Due to the fact that the legal profession is keeping up with the modern world and becoming more in touch with electronic and digital communication and correspondence, I have honed and improved my skills a great deal in this regard and have a far better understanding of this. I feel this is vital and keeps me up to date. I feel that an essential skill of a modern lawyer is not only to have an excellent legal mind but Please tell us about your background in law. What was it that led you to become a notary public? I always wanted to be a lawyer, and after reading law at Leicester and then completing my Master’s in Commercial Law at the University of Birmingham, I was fortunate enough to be offered a training contract two years in advance whilst at university, which allowed me to complete my legal practice and enjoy a year of travelling before commencing my training. About Kuldip Bhatti
Contact Kuldip Bhatti Founder KB Solicitors & Notary Public Venture House, 2 Arlington Square, Bracknell, RG12 1WA, UK Tel: +44 01344 374406 E: kb@kbnotarypublic.com www.kbnotarypublic.com About Kuldip Bhatti Kuldip Bhatti is a highly experienced notary public and the founding director of KB Solicitors & Notary Public. Based in Bracknell, Berkshire and Marlow, Kuldip serves clients throughout the surrounding counties. His clients include both companies and individuals, and his areas of expertise include the notarisation and certification of a broad range of documents, as well as apostille services. also to ensure that they learn and adapt with the times. I find it very challenging and rewarding to be both a solicitor and a notary public. Whilst both are legal roles, the combination of the two, I believe, makes me a more skilled and competent lawyer. Can you share any career plans you have for the remainder of the year? It is also a challenge to continue to grow and expand the two businesses, those being KB Notary Public Limited and KB Solicitors. My plan is to continue to grow KB Notary Public Limited and to continue to offer clients in both England and Wales as well as overseas a fantastic service and expertise that meets all of their notarial needs. As founding partner of KB Solicitors, I intend to continue to grow the firm, with expansion planned in other areas of the law such as family and private client matters. I am also hoping to open more offices at other locations in addition to our Bracknell and Marlow offices, such as Wokingham and London. As always, I also always keen to recruit hard working and competent staff in a variety of roles such as notarial assistant, paralegal, solicitors and trainee solicitors. FEATURE OF THE MONTH 19 I feel that an essential skill of a modern lawyer is not only to have an excellent legal mind but also to ensure that they learn and adapt with the times.
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. This October, two legal sector leaders share their unique perspectives with us. Prominent neutral and litigator Stephen Townley draws on 40+ years of experience to discuss how sport and entertainment brands can tackle litigation risks, while leading elder lawyer Gene Carlino turns the spotlight on the nuances of Medicaid planning. Both are well worth a read. MY LEGAL LIFE
Stephen Townley What do you perceive as some of the emerging litigation risks facing sport and entertainment brands today? In short: • Environmental, social and governance risks (ESG); • Likely increasing challenges to the ownership and exploitation of intangible assets as a result of the evolution in technology including generative AI; • The ‘prune juice effect’ following maturity of business structures, which will result in likely changes in the content ownership model of intangible assets. Before expanding on these, I have some provisos: • Personal perspectives usually contain elements of bias. My bias is that I regard litigation in the sport and entertainment sector as a failure of the parties to find better ways My Legal Life Protecting Sport and Entertainment Brands from Litigation Sport and entertainment brands are uniquely sensitive to litigation, especially related to reputational issues. Strategies to mitigate these risks – especially through the use of emergent technologies including generative AI – are therefore of paramount importance to IP and rights holders. Stephen Townley, a veteran of the sports and entertainment law sector, shares some of his unique insights in this feature. 22 LAWYER MONTHLY OCTOBER 2023 to resolve their conflict. Litigation can end a reputation and that can end a short career – more so, perhaps, in sport than the entertainment. I am increasingly focused on seeing how technology tools that are evolving can support conflict management, as well as aiding the resolution process as an international neutral with JAMS and similar roles with others such as CAS and WIPO. • Sometimes there is no route left to resolving a dispute other than litigation. An athlete like Lance Armstrong charged with doping offences only has the option to test the validity of the charges through due process. In the last 10 years I have handled high profile litigation in cricket and football where criminal allegations have been used tactically to create bias in civil process. • General counsels within organisations have a very valuable role in mobilising management and other internal and external resources to flag litigation risks early and ‘head them off at the pass’. Technology can now aid that task.
MY LEGAL LIFE 23 Can you please explain why and how you have selected the above as contemporary risks? Risk 1: Environmental, social and governance risks (ESG) ESG, according to the Corporate Finance Institute, helps stakeholders understand how an organisation is managing risks and opportunities related to environmental, social and governance. This description covers a range of topics in both sport and entertainment, including reputation. My favourite quote of all time on reputation is that of Abraham Lincoln, who said: “Character is like a tree, and reputation is like a shadow. The shadow is what you think of it; the tree is the real thing.” Brands within sport and entertainment have heightened litigation vulnerabilities, particularly from reputational issues. They drive curiosity, debate and public opinion. Reputations underpin brand value. With success, sport and entertainment personalities become influencers. Which brand a successful sportsman or entertainer wears, uses or endorses, either in or out of competition or performance, will influence the behaviour of others. This includes purchasing decisions. Highlevel influencers can then monetise this role. Taking Abraham Lincoln’s idea of a reputation being akin to a shadow, the size of the shadow can change between sunrise and sunset and occasionally may disappear when the sun goes behind a cloud. A very recent event illustrates how brand values can be impacted in the blink of an eye, or in this case by a kiss on the lips. This kiss overshadowed the victory of Spain’s Women’s World Cup team against England in the final in Australia in August 2023. The incident no doubt damaged some reputations, yet might have improved others who responded promptly. The AI increases opportunities to conceal and confuse origination and provenance of recognised proprietorship concepts.
shadow will follow from a series of interactions with, for example, media, fans, followers, volunteers, influencers, participants, users, customers, partners, suppliers, staff, investors or shareholders and regulators. When casting one’s mind back to original copyright ownership, it seemed straightforward to determine origination at input and output and establish provenance. For example, in 1953, the Supreme Court of the United States decided that in 1937 Walt Disney broke an agreement when an unauthorised copy of 32 copyrighted images was made. In 2023, the global artist Ed Sheeran was cleared by of a claim that he had breached copyright in Marvin Gay’s song ‘Let’s Get It On’. AI increases opportunities to conceal and confuse origination and provenance of recognised proprietorship concepts. This is apart from huge practical difficulties in enforcement with jurisdiction shopping and non-alignment of national laws. Most civil law and some common law systems require human input for artists’ copyright to exist. AI event happened when the president of the Spanish Football Federation, Luis Rubiales, is alleged to have kissed one of Spain’s leading players Jenni Hermoso on the lips without consent during the award presentation. Public perception of gender reputational issues highlighted by the ‘Me Too’ movement has evolved quite rapidly. Its origin can be traced to Myspace in 2006. However, when Harvey Weinstein was arrested in New York on charges of rape in 2018, the phrase became global news. The allegations against Mr Rubiales hardly warrants fair comparison with Mr Weinstein’s convictions. However, a shadow has been cast because of public attitude towards what is acceptable behaviour of a senior football official. In the entertainment sector, recent days have seen serious allegations against Russell Brand. The response from YouTube has been to take down the feed (and, therefore, the monetisation model) relied upon by Mr Brand, who is reported to have 6 million followers. Risk 2: Likely increasing challenges to the ownership and exploitation of intangible assets as a result of the evolution of technology including generative AI Monetisation of sport and entertainment brands has largely relied upon on an 24 LAWYER MONTHLY OCTOBER 2023 exclusivity of access model. Performing a song and streaming a record are both examples of the creation of an intangible asset. Such intangible assets may be recognised as intellectual property (IP) and in some circumstances exist as a combination of IP and contracts sometimes known as contract IP. IP can exist, for example, in names, images, likenesses, designs, works, performances, etc. In the sport industry, access might be through a sponsorship or endorsement agreement. Blockchain technology offers innovative new ways to monetise intangible assets through a tradeable instrument known as an NFT or smart contract. In the music industry, securitisation of a back catalogue – innovated, I believe, originally by David Bowie – has remained popular. The lawyer’s approach to is first to identify property or analogous rights in the point of their origination and then consider their further application at the point of output. This includes copyright, trademarks, patents, personality rights, unfair competition and goodwill. Identifying the proprietary basis of the asset is only part of the story. A paintert may own copyright in a painting. If Hockney was the artist, the painting would have an entirely different value. Brand values reflect the value of the reputational shadow. The extent of the My favourite quote of all time on reputation is that of Abraham Lincoln, who said: “Character is like a tree, and reputation is like a shadow. The shadow is what you think of it; the tree is the real thing.”
technology has transformed the ability to generate content e scraped from the web and social media, which may involve copyrighted works to store it in a data-lake and then decide itself without human input how to repurpose the output. In a recent speech from Lord Justice Birss reported in the Law Society Gazette, he admitted using ChatGPT in writing a paragraph of a judgement. He was clear, however, that he had already made his decision and he was simply using a large language-based system to help put his judgement into words. Can copyright subsist at the point of input or output of AI-generated content ? Possibly. More likely at the point of input! If it does exist, who will own it and do defences such as fair use or data mining exceptions apply? . AI has already generated a short film and a rock band. It was apparently used to show Harrison Ford as a young man in the latest Indiana Jones film. Sir Paul McCartney has said recently that it might generate a new Beatles album. Interesting times lie ahead. The majority of the value in sport events rests in a live performance. This is not the same monetisation model as parts of the entertainment or creative industries. One current manifestation of the challenges posed by the use of AI is the Hollywood dispute with the Writers Guild of America. The US has a system of registration of copyright, so a lot of early cases are arising in this jurisdiction. Risk 3: The ‘prune juice effect’ following maturity of business structures and likely future changes in the content ownership model of intangible assets As money inflows increase, there is a recognised phenomenon in sporting parlance called the ‘prune juice effect’. It was first observed in relation to US pro league athletes. Over time, a greater proportion of the wealth generated from monetising a sports performance and related rights as intangible assets would end up in the hands of the athlete. The magic percentage at the point of maturity in the cycle is 67% of income should flow to the athlete. This so-called prune juice phenomenon is an example of athlete power within the sport industry that seeks an increasing share of values generated. This places pressures on organisers of sports events to improve efficiencies in order to maintain margins when the cake gets sliced up. Similar initiatives have arisen in the entertainment sector as performers’ brands have become more valuable than the record labels. This issue is now moving on as technology applied to the distribution and connectivity of content has provided new opportunities for sports and entertainment personalities to gather communities around themselves and seek to monetise these directly. I see these changes as challenging parts of the traditional commercial models in sport, particularly with the growth of the brands of individuals through social media. Sanctioning models in sport provides an opportunity to make rules and regulations. Asserting ownership of rights by selecting hosts and agreeing terms for participation is the leverage needed. MY LEGAL LIFE 25
make a potential $6 billion return on this investment. Class actions have expanded in the financial, medical and energy sectors, giving access to a new range of claimants. On 25 May 2022, the BBC reported that Volkswagen was to pay £193 million to more than 90,000 drivers in England and Wales after it settled a High Court claim over the installation of emissions-cheating devices in its vehicles. The VW group has, so it was reported, already paid out more than €30 billion (£26 billion) worldwide. We have already seen class actions by copyright owners to challenge AI content. These developments might also have applications to the medical claims arising from repeated injuries in contact sports. How have you witnessed the field of sport and media law develop over the course of your career to date? My early experience was gained when I joined as general counsel to a MonacoDo you think that litigation risks are the same for sport and entertainment brands? No, they are not the same. The particular challenge of sport as a brand is to maintain the integrity of the competition, thereby guaranteeing the fair and uncertain outcome of a sports performance. That is why drugs and match-fixing have featured so regularly in sport litigation. The entertainment industry does not depend upon uncertainty of outcome and therefore it faces different issues. The Rolling Stones’ original brand as the ‘bad boys’, compared to the Beatles as the ‘nice guys’, hardly inhibited their careers. Can you please identify some further issues and changes that explain your interest in strategies and technologies to avoid litigation risks? The outcome of litigation is unpredictable. A decision to litigate usually relies upon an assessment of who is going to win or 26 LAWYER MONTHLY OCTOBER 2023 lose. There is frequently a discounting of the cost and disruption within an organisation of pursuing the litigation route at early stages . Once litigation starts, it can be a very difficult to stop, particularly after large funds have already been spent. Attitudes harden and control of the settlement agenda lost. Litigation costs have been increasing and can be seen to impact the bottom line of a business. There is no reason why legal risks should not be identified through technology at an early stage. An organisation might then do three things differently. First, it can allocate an internal function with responsibility for litigation and risk management. Second, it can decide how best to avoid the risk escalating into litigation through early-stage avoidance. Third, it can retain greater control at different stages of escalation and have more influence over the final outcome. Third-party funders see litigation as assets to monetise. A recent example quoted in the Financial Times (14/9/2023) vividly illustrates this development. A New York court recently awarded a record $16 billion damages to two expropriated shareholders in an oil resources claim. The claim was largely financed by litigation funding by Burford Capital. Burford Capital was reported to There is no reason why legal risks should not be identified through technology at an early stage. Contact Stephen Townley Stobbs IP Tel: +44 07880 505220 E: steve@activerights.com www.stephentownley.com
Stephen Townley has been lucky enough to enjoy a career in law and business. In law he is a solicitor, where he has been senior partner and a seasoned ADR professional (FCIArb) whether appointed as an arbitrator, mediator or resolver. In business he has served as general counsel, board member and chairman. For the past 10 years Stephen has been involved in complex, high-value, cross-border litigation and high-profile reputational issues in sport in India and the Middle East. In law and ADR Stephen set up the law firm Townleys in 1984 and served as its senior partner for 18 years. The firm became recognised as the first and, for many years, the largest international sports law and media boutique outside the US. based SPV called SMPI, this was a joint venture between Horst Dassler of the Adidas family and Patrick Nally. It was the first in the world to package commercial rights of major sporting events. These included perimeter advertising, exclusive product supply to hosting venues, VIP tickets, travel and hospitality and merchandising. Television was the golden key that unlocked some of the early opportunities, starting with football. Clients included brands such as Coca Cola, Gillette and JVC. My role was to construct and help deliver these packages based upon IP and contracts. The changes in the industry have been profound. When SMPI first started working with FIFA, FIFA had a permanent staff of fewer than a dozen employees and a modest office. Today it is a business generating $7.7 billion in the 4-year cycle 2019/22. I built my professional firm, Townleys, with my talented partners and staff to fill a gap in legal resources that had previously not existed. The firm evolved with new departments to reflect the needs of the clients, starting with IP creation and licensing in sponsorship and ending with departments dealing with media rights, sponsorship, regulation and litigation. About Stephen Townley What initially led you to specialise in sport and media law? By luck rather than design, I happened to stumble into an area of law that was not developed. I often use the phase in describing my speciality in the early days as “In the land of the blind, the one-eyed man is king”. I published the first legal/ commercial textbook on the sports industry outside the US in 1984 with friend and barrister Edward Grayson. I love certain sports, but I was never what you would call a ‘sports groupie’. Related to the above, what was it that led you to take up your new position with Stobbs? Stobbs are recognised disrupters and innovators in the intangible asset space. I have found them smart, passionate and solution-focused on delivering what the clients want and need in a changing world where intangible assets are increasingly valuable. They manage a huge volume of brand-related issues from legal to valuation to licensing to dispute management – right through, if needed, to litigation. Stobbs take a long-term relationship view with clients; they invest in developing and deploying technology and they comprise a multi-disciplinary team of lawyers and non-lawyers who are experts in the brand space. All of this mirrors my approach in Townleys and in Active Rights Management, so I have found a kindred spirit. Considering your successes to date, do you have any future career aspirations that you can share with us? My goal is to keep using and sharing my knowledge and experience to help sport and entertainment brands protect themselves from avoidable conflict, whether that is financial, organisational or reputational harm. I am working on a book project that will look in detail at this, as well as working through Stobbs and my conflict resolver roles. I find JAMS particularly innovative in their approach and support of international neutrals such as myself. I also certainly would wish to continue my work with WIPO, CAS, CIArb and the Singapore Sports Dispute Resolution Centre and to focus this on pioneering early dispute resolution solutions. MY LEGAL LIFE 27 Stephen Townley FCIArb, JAMS Mediator and Arbitrator www.jamsadr.com
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Gene Carlino To give a foundation for this discussion, could you please briefly outline what Medicaid offers and why it is important for seniors and their families to consider it in their financial planning? Financing the cost of long-term care is a major concern for many people, especially those approaching retirement. Many seniors are concerned that if one spouse requires long-term care in a nursing facility, the spouse who is living at home will not be able to maintain him or herself in the community in the standard of living the couple enjoyed before the onset of the debilitating condition. Planning with an elder law attorney can help a family position their assets so that they can take advantage of the exemptions and protections that are available under federal and state law. My Legal Life Elder Law and Medicaid Planning in 2023 For senior citizens in the US, Medicaid eligibility forms a central pillar of financial planning. Experienced elder law attorney Gene Carlino shares his sector insights with us in this article, delving deeper into Medicaid’s eligibility requirements, the ‘look-back’ period and how seniors can work with legal counsel to devise sound financial plans that safeguard their healthcare. MY LEGAL LIFE 29 What are Medicaid’s eligibility requirements in your jurisdiction? In Rhode Island, for a married couple there is spousal resource allowance of a minimum of $29,714 and a maximum of $148,620. Countable resources are arrived at as of the beginning of the period of placement in a long-term care facility. That sum is then divided in half and the spouse in the community is allowed to retain one half of those resources subject to the minimum and maximum amounts noted. Equity in a home up to $688,000 is excluded from the definition of countable resources. But if the home is in the Medicaid recipient’s probate estate, it is subject to estate recovery by Medicaid. An at-home spouse is allowed to retain his or her own income, but the spouse in the nursing home must contribute his or her income. If the at-home spouse’s income is below $2,465, that spouse can retain enough of the total income to reach the base amount of $2,465. This base amount can be increased if household shelter costs
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