LAWYER MONTHLY©2024 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. Dawn L. Hassell Mastering Personal Injury Litigation: Insights into Trial and Arbitration Strategies Calvin Tian Redefining Legal Success: Calvin Tian’s Vision and Journey Behind PT Law 30 8 DECEMBER 2024 Welcome to the latest edition of Lawyer Monthly, where we continue to explore the dynamic world of law through the expertise and perspectives of leading professionals from across the globe. This month, we are proud to feature Calvin Tian, founder of PT Law in Las Vegas, as our cover story. Calvin’s journey exemplifies the determination and innovation reshaping the legal profession. From his early beginnings to building a firm with a fresh approach to personal injury law, Calvin’s insights are a testament to redefining success in today’s legal landscape. Inside, you’ll also find a wealth of knowledge spanning diverse areas of law: • Michael Malone of Trinity Chambers in Newcastle, UK, discusses key trends in employment law, tackling issues like equal pay and workplace mediation. • Mustafa S. Khattab, Senior Contracts Manager at AD Airports, delves into dispute resolution in the UAE construction industry, offering vital contract management strategies. • Joe Fittante, President of Larkin Hoffman Daly & Lindgren, shares his expertise on guiding emerging franchisors through legal hurdles, while Dawn L. Hassell, Managing Attorney of The Hassell Law Group, explores the complexities of personal injury litigation and effective trial and arbitration strategies. For those interested in specialized legal insights, Nick Andrews of BDO explores forensic accounting in W&I claims, and Kevin Feng of Tsai Lee & Chen Patent Attorneys at Law compares Taiwan’s patent system with global counterparts. Additionally, Janet Saura, Legal and HR Executive, tackles global labor relations strategies, Brian Cano of Fees, Smith & Sharp, LLP sheds light on high-stakes trial defense in Texas, and Mark Goodman of Campbells highlights why the Cayman Islands remains a premier jurisdiction for insolvency in investment funds. This issue is a celebration of expertise, innovation, and the ever-evolving challenges and triumphs of the legal profession. I hope you enjoy reading it as much as we enjoyed putting it together. Happy reading! Warm regards, Mark Palmer Editor, Lawyer Monthly
Production Team: Emma Tansey, Luke Ostle production@lawyer-monthly.com Sales Enquires: Jacob Mallinder Jacob.mallinder@universalmedia365.com @lawyermonthly @LawyerMonthly @lawyermonthly company/lawyer-monthly Universal Media Limited, Watling Court Orbital Plaza, Watling Street, Birmingham, WS11 0DQ, UK 0044 (0) 1543 255 537 CONTENTS AN INTERVIEW WITH... 8. Calvin Tian Redefining Legal Success: Calvin Tian’s Vision and Journey Behind PT Law 16. Michael Malone The Evolving Landscape of Employment Law: Key Insights on Equal Pay, Discrimination, and Workplace Mediation 22. Mustafa S. Khattab Building Stronger Contracts: Dispute Resolution in the UAE Construction Industry 26. Joe Fittante Navigating Legal Challenges for Emerging Franchisors 30. Dawn L. Hassell Mastering Personal Injury Litigation: Insights into Trial and Arbitration Strategies 34. Nick Andrews Accounting Insights: Navigating W&I Claims with Forensic Expertise 38. Janet Saura Global Labor Relations: Key Strategies for Multinational Companies 42. Kevin Feng Key Features of Taiwan’s Patent System: A Comparison with the U.S. and Europe 46. Brian Cano Defending Companies in High Stakes Cases in Texas: Brian Cano on Strategy, Risk, and Client Success 50. Mark Goodman The Cayman Islands: A Premier Jurisdiction for Insolvency and Restructuring in Investment Funds 54. Matheson LLP Estate Planning and Asset Protection in Ireland: A Guide for High-Net-Worth Individuals 60. Shaliek M. Tarpley Overcoming Immigration, Security Clearance, and Veterans’ Affairs Challenges 4. Samsung Ordered to Pay $118M for Netlist Patents Infringement 5. Microsoft faces a wide-ranging U.S. Antitrust Probe 6. Disney Reaches $43 Million Settlement in Women’s Pay Discrimination Lawsuit 7. £7Bn Legal Action Against Google Approved for Trial - NEWS - TRANSACTIONS 66. Alpha Bank’s EUR 806 Million Financing for Athens International Airport Expansion 70. ACG Group’s Note Issuance Backed by Marjac Avocats and DWF 74. Mirova’s Multimillion-Dollar Financing Deal with Ghana-based ManoCap Energy 78. Vela’s Fundraising of EUR 40 Million 80. Bersay Steers Setic Pourtier’s Game-Changing Investment with Arcole 81. Gunnebo Safe Storage Acquires Primat Group 82. Orchard Media and Events Group Transitions to Employee Ownership through EOT
4 LAWYER MONTHLY DECEMBER 2024 A federal jury in Marshall, Texas, awarded $118 million in damages to Netlist, a computer memory company, in a patent infringement lawsuit against Samsung Electronics concerning technology designed to enhance data processing in high-performance memory products. Samsung Ordered to Pay $118M for Netlist Patents Infringement This verdict follows a previous ruling in which Samsung was ordered to pay $303 million to Netlist in a related case last year. Additionally, in May, Netlist secured $445 million from Micron, another chip manufacturer, in a separate lawsuit involving some of the same patents. Representatives from both Samsung and Netlist did not provide immediate comments regarding the recent verdict. The jury also found that Samsung’s infringement was willful, which may result in the judge increasing the damages awarded by as much as threefold. Netlist initiated legal action against Samsung in 2022, claiming that the memory modules utilized by the South Korean technology firm in cloud computing servers and other data-intensive applications infringed upon its patents. Netlist asserted that its innovations enhance the energy efficiency of memory modules and allow users to extract valuable information from large datasets more rapidly. In response, Samsung denied the allegations, contending that the patents in question were invalid and that its technology operated differently from Netlist’s inventions. Furthermore, Samsung has filed a related lawsuit in a federal court in Delaware, accusing Netlist of failing to fulfill its obligation to provide fair licensing for technology necessary to comply with international standards. Netlist’s $118 million victory in its patent battle against Samsung underscores the high stakes in intellectual property disputes within the tech industry. The jury’s finding of willful infringement highlights the importance of protecting innovative technologies in the competitive memory and data processing market. With this verdict following other significant settlements against Samsung and Micron, Netlist has firmly established itself as a formidable defender of its patents. However, ongoing litigation, including Samsung’s countersuit, ensures this legal battle is far from over, keeping the spotlight on intellectual property enforcement in high-tech sectors. NEWS
NEWS 5 The U.S. Federal Trade Commission has initiated a comprehensive antitrust investigation into Microsoft, focusing on its software licensing and cloud computing operations, according to a source familiar with the situation reported on Wednesday. This investigation received approval from FTC Chair Lina Khan prior to her anticipated departure in January. Microsoft faces a wide-ranging U.S. Antitrust Probe resulted in a judicial finding of unlawful conduct. The FTC’s investigation into Microsoft marks a pivotal moment in U.S. antitrust enforcement, highlighting growing concerns about competition in cloud computing, AI, and software markets. As regulatory scrutiny intensifies across the tech industry, the outcome of this probe could reshape Microsoft’s business practices and set a precedent for addressing monopolistic behavior in emerging technologies. representing online firms such as Amazon and Google, which compete with Microsoft in the cloud space, has criticized Microsoft’s licensing practices and its incorporation of AI tools into its Office and Outlook products. “Considering that Microsoft is the largest software company globally, with a dominant position in productivity and operating systems software, the scale and implications of its licensing choices are significant,” the group remarked. The FTC has requested a wide array of detailed information from Microsoft. Until now, Microsoft has largely been an exception in the recent efforts by U.S. antitrust regulators to address alleged anticompetitive behaviors among major technology firms. Meta Platforms, the parent company of Facebook, along with Apple and Amazon.com Inc., have all faced accusations from the U.S. government of unlawfully sustaining monopolies. Alphabet’s Google is currently dealing with two lawsuits, one of which The election of Donald Trump as President of the United States, along with the expectation that he will appoint a Republican with a more lenient stance towards business, casts uncertainty on the investigation’s outcome. The FTC is scrutinizing claims that the software giant may be misusing its market dominance in productivity software by enforcing restrictive licensing terms that hinder customers from transferring their data from its Azure cloud service to competing platforms, as confirmed by sources earlier this month. Additionally, the FTC is investigating practices related to cybersecurity and artificial intelligence products, as stated by the source on Wednesday. Microsoft chose not to provide a comment on the matter on Wednesday. Last year, the FTC received complaints regarding Microsoft while assessing the cloud computing sector. NetChoice, a lobbying organization Read this news story and more, online: www.lawyer-monthly.com NEWS
6 LAWYER MONTHLY DECEMBER 2024 years of experience who earned $20,000 more annually. Ultimately, approximately 9,000 current and former female employees of the company joined the lawsuit. Disney sought to prevent the class action from proceeding, but a judge ruled in December that it could move forward, as noted by Andrus Anderson, one of the law firms involved. Lori Andrus, a partner at Andrus Anderson, expressed strong support for Ms. Rasmussen and the women who initiated the discrimination lawsuit against Disney, highlighting their courage in addressing As part of the settlement, Disney will engage a labor economist for a threeyear period to evaluate pay equity among full-time, non-union employees in California who are below the vice president level and to address any identified disparities, according to the three law firms representing the plaintiffs. The lawsuit was initially filed by LaRonda Rasmussen in 2019 after she discovered that six male employees with the same job title were earning significantly more than she was, including one individual with fewer pay disparities within one of the largest entertainment companies globally. Disney has previously contested the allegations and findings presented in the lawsuit. The case was bolstered by an analysis of Disney’s human resources data from April 2015 to December 2022, which indicated that female employees were compensated approximately 2% less than their male counterparts. This analysis was conducted by David Neumark, a labor economist and professor at the University of California, Irvine. The settlement agreement, which has been submitted to a California state court, is pending judicial approval, according to the attorneys involved. This settlement between Disney and its female employees highlights the enduring struggle for pay equity in the workplace. Disney Reaches $43 Million Settlement in Women’s Pay Discrimination Lawsuit Walt Disney has reached an agreement to pay $43.3 million to resolve a lawsuit that claimed its female employees in California earned $150 million less than their male colleagues over an eight-year span, as stated by the plaintiffs’ attorneys on Monday. Read the full news story at: www.lawyer-monthly.com NEWS
NEWS 7 The tribunal dismissed Google’s bid to have the case dismissed, allowing it to proceed to trial. Stopford, acting as the class representative, will represent all UK-based consumers aged 16 and over who have purchased goods or services in the UK from businesses using Google’s search advertising services. Stopford described the tribunal’s decision as a “significant victory” for UK consumers, noting that Google’s dominance in the search engine market has caused inflated costs for consumers. She emphasized that while Google presents itself as offering free services, its market control has led to higher prices for goods and services. A £7 billion legal action against Google, accusing the tech giant of exploiting its dominance in the search engine market, has been approved to proceed to trial by the Competition Appeal Tribunal (CAT). The claim, led by consumer rights advocate Nikki Stopford, alleges that Google has inflated advertising costs, ultimately passing those expenses onto consumers. The lawsuit also accuses Google of leveraging its dominant position to pressure mobile manufacturers using Android to pre-install its Search and Chrome apps, while also compensating Apple to ensure Google remains the default search engine on iPhones. This lawsuit forms part of broader efforts to ensure competition in digital markets, with Stopford seeking both accountability for Google and compensation for consumers harmed by the company’s conduct. Google, however, has rejected the claim, calling it speculative and opportunistic, with a company representative insisting that people use Google because it’s helpful, not because there are no alternatives. The case comes at a time when Google is already facing significant scrutiny, including a proposal by the US Department of Justice to force the company to divest its Chrome browser. This follows a ruling earlier this year that Google was operating a monopoly in the search market. Google has faced several high-profile lawsuits in the past, with accusations of monopolistic practices and anticompetitive behavior. These lawsuits often center around the company’s dominance in the search engine and digital advertising markets. One key issue is the way Google allegedly uses its market power to inflate advertising costs, passing the burden onto consumers and businesses. Past legal actions have highlighted concerns about unfair practices, such as exclusive agreements with companies like Apple to make Google the default search engine. £7Bn Legal Action Against Google Approved for Trial Read the full news story at: www.lawyer-monthly.com NEWS
8 LAWYER MONTHLY DECEMBER 2024 We stand by our client and guide them through the process. The client feels informed about the process and feels as if they were going through the process alongside us.
Calvin Tian, founder of PT Law in Las Vegas, has been breaking barriers and setting new standards in the legal industry from an early age. Licensed by the State Bar of Nevada and Washington at just 23, Calvin charted a unique path by establishing his own firm. His journey, fueled by dedication, innovative thinking, and a commitment to excellence, reflects a deep passion for serving the Las Vegas community. Specializing in personal injury law, Calvin has built PT Law into a trusted advocate for clients navigating the complex legal landscape of Nevada. From leveraging unique state laws to securing favorable outcomes for clients in challenging cases, he has consistently demonstrated a forward-thinking approach to legal representation. In this interview, Calvin shares insights into his remarkable journey, the strategies behind his success, and his vision for the future of PT Law. WWW.LAWYER-MONTHLY.COM 9 Calvin Tian Licensed by the State Bar of Nevada to practice law at the age of 23, what motivated you to establish your own firm rather than joining an existing practice? Could you describe the academic path you took to achieve this milestone so quickly, and what level of dedication was required? Starting my own firm has always been my goal, even before I went to college. I was fortunate enough to be raised by parents who required me to set goals Contact Calvin Tian, Esq. Attorney at Law PT Law 2820 S Jones Blvd Unit 1, Las Vegas, NV 89146 Tel: (702) 763-5557 Email: Calvin@PTLawLV.com ptlawlv.com Redefining Legal Success: Calvin Tian’s Vision and Journey Behind PT Law
I had to spend all of my time polishing my resume and improving my grades. While my friends were away on vacation, I was staying up late and writing essays for scholarship applications. for myself and constantly strive to achieve those goals. My mother, Ling Gillenwater, has worked in the legal field as a paralegal and a manager for more than two decades. She was a great role model for me back when I was in high school. During my off time, I observed how she helped people who sought legal representation at work and managed to turn their lives around. While she is not an attorney, she was loved and respected by her clients nevertheless. After seeing her work, I wanted to continue her legacy and keep on doing the good work she has been doing. In some ways, you can say it is very stereotypical for me as a Chinese to continue the family legacy. I had two goals I had to accomplish before starting my own firm (1) to be barred as a licensed attorney in the State of Nevada as soon as possible, and (2) not to be burdened by a huge student loan that would have made starting my own firm impossible. Knowing the end goal, my objective in school was to achieve these goals in the fastest amount of time while maintaining a healthy lifestyle, as I have seen too many dysfunctional adults who were high-achieving students. To that end, I learned to cut corners and make sacrifices wherever they may be necessary. One of the most important decisions I made was to switch school during my junior and senior year of high school. In Las Vegas, Nevada, there is a dual-degree program where high school students can attend a specialty high school located within a college campus. Instead of following the course a high school junior or senior would, students within the dual-degree program can attend college courses for their elective classes and earn credits towards both their high school and college degree requirement. I had to sacrifice most of my free time to take more classes and leave all of the friends I made during my freshman and sophomore years of high school behind. However, by doing this program, I was able to save a tremendous amount of time. The average age for a newly barred attorney is between 26-30. However, I was able to save more than two years of my time by attending this program. Student loans are a major concern for college students in the United States. While it was an available option for me, I could not consider it because of the financial position my family was in at the time. When I was drafting my application for law school, I would have been unable to attend law school if I did not get scholarships because of the financial position my family was in. This meant that before I got into law school, 10 LAWYER MONTHLY DECEMBER 2024 I had to spend all of my time polishing my resume and improving my grades. While my friends were away on vacation during holidays and summer vacation, I was staying up late and writing essays for scholarship applications. While most of my friends were content with getting a “B” for their final grade and slacking off, I was revisiting old coursework to improve my grades and ensure I got an “A” for the class. However, this does not mean I did not have any time to myself. I simply had to be more efficient with my time. For example, instead of taking time off to socialize with friends, I used this time to network and meet new people who might be a good connection for me in the future. All of these efforts paid off in the end. While I will not go out and claim I am the most well-functioning adult with no financial obligations. I made it through college and law school on a full-ride scholarship and dedicated enough time to friends, family, and physical health to support a healthy lifestyle. As a firm specializing in personal injury, how do the unique laws and regulations in Nevada impact the way you handle cases related to car accidents? For personal injury claims, the policy limit of an insurance policy is important because it sets the boundaries around which we have to work. To put it in layman’s terms, the policy limit is the amount of money an insurance company will pay on behalf of their insured for a claim. For us, this is important because most people our clients are making a claim against are ordinary, day-to-day workers. Most of these people live paycheck to paycheck and do not have the means to pay for a settlement. Instead, they rely on their insurance companies to protect them. One of the best ways Nevada is distinct from many other states is that we have a
law that requires insurance companies to disclose their policy limits after a certain set of requirements are met. Instead of making an educated guess or spending money to go out and investigate the coverage on an insurance policy, we are able to get it in a short amount of time and map out our strategies to ensure the maximum settlement for our clients as long as we stay on top of our game. By taking advantage of this law, we can have substantive discussions with our clients to (1) ensure they get the maximum amount of settlement possible from their personal injury claim and (2) monitor and/ or recommend the course of our client’s treatment so that the least amount of settlement is used to pay for their medical expenses. Could you describe a challenging personal injury case you’ve worked on and how your approach led to a successful outcome for your client? One of the unspoken strategies insurance companies use to evaluate a claim is by evaluating the claimant’s (aka our client) biographical background. When I am talking about our client’s “biographical background”, I am talking about their socio-economic standing, race, or the primary language they speak. For most of our clients, the “default” background is a low-middle-class worker of Asian or Hispanic origin who does not speak English. While this deviates from one client to another, this is the most common set of characteristics. In one particular case, I represented a middle-aged Asian woman who was rearended in traffic while she was stopped at a red light and suffered neck and back injuries. A classic fender-bender, if you will. While this is by no means the biggest case we have had in our firm, this was one of the cases I hold dear to my heart because it delves into the darker side of personal injury claims. After we made a WWW.LAWYER-MONTHLY.COM 11
claim for personal injury with the at-fault driver’s insurance company and our client began receiving treatment for her injuries, we were notified that the claim was assigned to a special investigation unit because the insurance company questioned her mechanism of injury. To put it bluntly, the insurance company questions whether she is injured and suspects she might be a malingerer, someone who is not injured and who makes an insurance claim for the sole purpose of getting a settlement. There was not a lot of insurance coverage available in this case, and the client was fine with enduring her injuries on her own and addressing them at a later date using her own health insurance. However, instead of letting the case go and allowing my client to be pushed around by the insurance company, I got my client’s permission to file for litigation on this case. By taking the case to litigation, I was able to get an attorney assigned for the driver of the at-fault vehicle and took his deposition, which is a formal Q&A that is answered under oath and transcribed into the court record. During the deposition, I listed out everything his insurance company had done and asked whether he knew he was going to be personally liable for the judgment we obtain against him in excess of his coverage amount. Of course, he did not. After the deposition, I believe there was a heated discussion that took place between the at-fault driver and the insurance company because they settled shortly thereafter. What are the most common legal hurdles or misconceptions that clients face when seeking personal injury representation in Nevada? For those of us working in the personal injury field, there are two main hurdles/ misconceptions clients face: (1) how the client will pay our attorney’s fees and (2) how much money they will receive from a settlement. With respect to the first point, we see a lot of clients coming in during intake with one burning question in mind: how much money will we need to pay to have you represent us? Much like almost every personal injury law firm in Nevada, our fees are contingency-based. The simplest way to look at a contingency-based fee for legal representation is to think of it as us helping you make a collateral-free bet. If we believe you have a valid case for personal injury, you do not need to pay anything upfront. In fact, we will oftentimes front a lot of costs associated with your representation (i.e. costs to request medical records, fax, postage, etc.) on your behalf. In the event we do not get a settlement, you are not responsible for anything on our end. If there is a settlement, our fees and costs would come from the settlement instead of your pocket. This helps a lot of people without deep pockets to get quality representation they deserve. With respect to the second misconception, we often see people coming in with a false idea of how much they will get from a settlement. One of the things we hear most often during the initial intake is our client stating, “I got 12 LAWYER MONTHLY DECEMBER 2024 hurt the same way my friend did in his case. Therefore, I should get this amount in my pocket at the end.” While similar cases will help provide good guidance for settlement, the truce is that settlement is oftentimes based on the insurance coverage available in a case and any asset the other driver may have. Even if a client came to us with a lost arm as a result of an automobile accident, there is little else we can do if the only coverage and/or asset the at-fault driver has is an automobile liability policy with minimal coverage as required by state law. Of course, one of the reasons we are retained to represent our client is to go out and search for additional coverage/ assets in these scenarios. However, there are countless times when the aforementioned scenario is the reality. Las Vegas is known for its tourism and traffic volume. How do these factors affect car accident injury cases in your practice? As a firm that is deeply rooted in the Las Vegas community we are both blessed and cursed by everything this community
has to offer. On the positive side, Las Vegas is known as a Sin City and is a tourist/traffic hot spot. This means there are plenty of vehicles and individuals coming through the city every day. With such a large number of visitors, there are ample traffic accidents, slips and falls, batteries, and other types of accidents that will cause injury to a person. For us, there are always opportunities to take on more cases and expand our repertoire, the only question is whether we have the capacity to do so. On the negative side, since Las Vegas has more than enough accidents to cause injuries on a minute-to-minute basis, there are also a large number of law firms competing with one another for business. This is best exemplified by the countless advertisements for personal injury lawyers spread throughout the city. While we are mostly cordial and professional with our colleagues in the same field, there are times when conflict and competition are inevitable. We sometimes have to compete with other personal injury firms to take on a client, it is an inevitable aspect of working in a popular market. In what ways does PT Law distinguish itself from other personal injury firms in Nevada? One of the complaints we hear most often from clients who were transferred over from other law firms is they do not know what is going on with their case and why they need to seek treatment now as opposed to later. For us, making sure the client is informed is a priority. From the initial intake meeting, we educate the client on how a personal injury claim progresses from beginning to finish. We discuss the possible treatments clients may undergo based on our past experience and set expectations in a realistic manner. As opposed to telling our client to go get treated and come back to us when the client finishes treatment, we stand by our client and guide them through the process. If the client does not know what doctor they should seek to receive treatment, we provide them with recommendations based on the type of injury they sustained. When there are updates on a client’s case, we bring them in to discuss the update and to plan out the next step. In the end, the client feels informed about the process and feels as if they were going through the process alongside us. WWW.LAWYER-MONTHLY.COM 13 Making sure the client is informed is a priority. From the initial intake meeting, we educate the client on how a personal injury claim progresses from beginning to finish.
Can you shed light on any recent changes or trends in Nevada’s legal landscape that have influenced personal injury cases? One of the ongoing issues in Nevada’s personal injury landscape is a petition to limit attorneys’ fees for personal injury cases. The petition, named Nevadans for Fair Recovery, seeks to put a limit on how much personal injury attorneys can charge in a personal injury matter. Ordinarily, personal injury attorneys’ fees are based on the length and depth of the representation provided. Attorneys’ fees for cases that settle before litigation is a lot less than cases that go to trial. The petition, if passed, will put a hard limit on attorneys’ fees regardless of the type of representation rendered. If this petition is passed, I can see many experienced personal injury attorneys moving to other fields of practice as the profit margin will not be enough to support their business. For us personal injury lawyers, we are taking on a potential risk by accepting your case. There are more than enough times when a client of mine does not make any meaningful recovery because they were either partially at fault or because there is no valid insurance coverage and asset from the wrongdoer’s side. In those cases, we have to bite the bullet on our costs and fees because that is the nature of our representation. It only takes a few cases to potentially cause a smaller firm to go bankrupt. What specific strategies do you employ to effectively handle complex personal injury cases in Nevada, such as those involving multivehicle accidents or significant injuries, to ensure clients receive the compensation they deserve? In an accident where there are a lot of 14 LAWYER MONTHLY DECEMBER 2024 injured parties and not enough coverage, the insurance company will generally offer their entire settlement budget to all the parties and ask everyone to come to an agreement on how much each party will get. In these scenarios, the general rule is for each party to get a portion of the settlement in proportion to their medical expenses accrued. We often refer to these types of settlement as “pro-rata settlement”. If we anticipate that a case may require a pro-rata settlement, we would have a discussion with our client beforehand and come to an agreement on a strategy that would secure a fair settlement for the client. One of the strategies we use is asking our clients to receive treatment using their health insurance. In Nevada, there is a legal doctrine known as the “collateral source rule”. I often call this rule the “none of your business” rule because this doctrine excludes evidence of alternative sources of payment for people injured in a personal injury claim. This means that if our client went to see a doctor using the client’s own health insurance, the evidence that
health insurance has already paid for the doctor’s visit will not be relevant to our claim. This helps us go after the wrongdoer for damages our client sustained with no risk to the client if there is not enough settlement to pay for the medical expenses. What are some common mistakes people make immediately after being injured in a motor vehicle accident or another incident, especially when they assume it is not serious, and how can these mistakes impact their ability to win a personal injury case? One of the most common ways our clients mess up their personal injury claims is not preparing enough evidence at the scene of the collision. I met with potential clients who were injured in a minor accident but did not take any pictures at the scene of the accident at least once per week. In some fortunate scenarios, they were cautious enough to call the police and obtain a police report memorializing the entire incident. In the worst-case scenario, a potential client would come in with no photographs of the collision and no contact information for the other driver involved. We often strive to do everything we can to ensure our clients do not return home with nothing. However, evidence is necessary to establish that the at-fault party did something wrong. If there is no evidence that an accident ever occurred and the atfault party was involved, there is little we can do to help. One thing I recommend every one of my clients to do after an accident is to stop and take a slowpanoramic video of their surroundings. If they can respond to the situation quickly, take photographs and/or videos of each party’s position and the condition of their surroundings. This information is critical and can often make or break a case. Looking ahead, what are your goals for PT Law and how do you hope to further impact the legal community in personal injury? I already have a few plans in motion for PT Law in the next few years. One of which is to relocate to a more permanent location that is renovated to our specifications. I hope that PT Law will one day become a well-functioning, autonomous machine that does not require my direct supervision and is a pillar of the Las Vegas community, much like many other bigger law firms in town. As with any other major metropolitan city, Las Vegas’s personal injury market is saturated with law firms that provide adequate, albeit mediocre, representation. However, I do not find being adequate acceptable. I have already set my mind on creating a law firm I am proud to be a part of, so my goal is to make the firm excel in our specialty. I have recruited a team of competent paralegals and case managers that I can rely on, my goal is to continue this course of action until we become a well-oiled machine. WWW.LAWYER-MONTHLY.COM 15 ptlawlv.com My goal is to make the firm excel in our specialty. I have recruited a team of competent paralegals and case managers that I can rely on, my goal is to continue this course of action until we become a well-oiled machine.
Michael Malone An Interview with... The Evolving Landscape of Employment Law: Key Insights on Equal Pay, Discrimination, and Workplace Mediation 16 LAWYER MONTHLY DECEMBER 2024 Employment law is constantly evolving, with new challenges and emerging issues for both employers and employees. From the intricacies of equal pay and discrimination claims to the complexities of managing workplace dynamics in the age of remote work, understanding the legal landscape is crucial for legal practitioners, HR professionals, and business leaders. In this article, Michael Malone, a retired employment judge and experienced mediator, offers valuable insights drawn from his decades of work in employment law. He discusses key challenges in enforcing equal pay and discrimination laws, the evolving role of mediation, and the importance of staying ahead of emerging trends in the workplace. Through his reflections, readers will gain a deeper understanding of the practical challenges of managing workplace disputes and fostering a fairer, more equitable work environment. As a practitioner and then an Employment Judge, what insights have you gained about the practical challenges of enforcing equal pay and discrimination laws? Enforcement is largely in the hands of individual claimants and their advisers. The Equality and Human Rights Commission (EHRC) has some statutory powers (for example, to carry out formal investigations), but the breadth of the Commission’s responsibilities and its limited funds mean that those powers are exercised comparatively rarely. No fee is payable for starting a claim to an employment tribunal. In at least two respects, however, the practical challenges for an individual contemplating a claim are arguably greater than they used to be. First, the former Equal Opportunities Commission (EOC) and Commission for Racial Equality (CRE) were willing and able to investigate and then fund numerous individual claims, whether or
WWW.LAWYER-MONTHLY.COM 17 Can you discuss the importance of mediation in employment disputes? Is mediation in equal pay disputes ever feasible, and if so, what are the potential advantages? The three obvious advantages of mediation in any employment dispute are saving the costs that would otherwise be incurred at a subsequent stage of the proceedings, avoiding or mitigating the risk of adverse publicity, and ending the stress of being enmeshed in proceedings. During the last three decades, there have been waves of multiple equal value claims: first against local authorities, then against NHS employers, and now against supermarket owners and other retailers. I doubt if many of those cases could have been settled, by mediation or otherwise, so long as issues of principle were still to be resolved. There are usually too many points of dispute and the stakes are too high. I see every reason, however, why some of the more ‘traditional’ equal pay cases should be amenable to mediation. By ‘traditional’ cases, I mean those in which the claimant (usually a woman) is paid less than a colleague (usually a man) for doing substantially the same job. The three obvious advantages mentioned above apply. An early settlement can also reduce the risk of a ‘knock-on effect’ leading to further equal pay claims, though that risk cannot be wholly avoided. There is a further reason for an employer to settle an equal pay claim, by mediation or otherwise, if at all possible. When an equal pay claim results in a finding of an ‘equal pay breach,’ the employment tribunal must consider whether to order the respondent to carry out and publicise an equal pay audit. There was an exemption period for certain small and new businesses, but that period expired at the end of September 2024. not a major point of principle arose. In the late 80s and 90s, I acted in numerous sex discrimination cases supported by the EOC. The EHRC (which replaced those Commissions and the Disability Rights Commission in 2006) does not have the resources to support claims on anything like the same scale. Multiple claims, like the supermarket cases which I mention below, and other high-value claims, can often obtain legal support on a contingency fee basis. Many claimants are union members and receive support from their union, but it can be difficult for other claimants to obtain suitable representation. Secondly, until 2014, there was a statutory questionnaire procedure which could be used by claimants or potential claimants. Respondents were not obliged to answer, but failing to answer without reasonable excuse or giving a false or evasive answer could be held against them in subsequent proceedings. This statutory procedure, which made a real difference in many cases, was withdrawn in order to reduce ‘legislative burdens’ on employers. Questions can still be asked and should be taken seriously by employers (ACAS has published relevant advice) but in my view this ‘reform’ was a retrograde step. The overwhelming majority of the equal pay cases in this century have been indirect discrimination cases - mainly equal value cases.
What are some common misconceptions about pay discrimination law that you have encountered, and how can they be addressed? Some common misconceptions are relatively harmless— for example, that independent experts decide whether jobs are of equal value. The independent expert does have an important role in those equal pay claims where equal value is one of the issues, but the actual decision is one for the employment tribunal. I chaired two equal value hearings in which we had evidence from an expert for each party, as well as the independent expert, and in one of them, we came to very different conclusions from those recommended by the independent expert. Another common misconception is that the law is not concerned with any discrimination in pay apart from sex discrimination. That misconception is understandable because sex discrimination in pay (and other contract terms) had its own separate equal pay legislation (now embodied in the Equality Act 2010). No other protected characteristic had separate legislation on pay, but, for example, the Race Relations Act 1976 covered pay discrimination along with all the other acts of racial discrimination against employees. Pay discrimination cases under that Act were rare, but in 2017, the Supreme Court considered a case in which indirect racial or religious discrimination was alleged, and one in which indirect racial or age discrimination was alleged. A more serious misconception is in regard to gender pay gap information. Most organisations with at least 250 employees are required to publish information every year. It is commonly assumed that an employer with a high headline pay gap is not meeting its equal pay obligations; and conversely, that a company with a low gap is doing well. The former companies are commonly vilified as ‘offenders’ in newspaper headlines. In fact, there is absolutely no necessary correlation. There are many valid reasons 18 LAWYER MONTHLY DECEMBER 2024
claims. They can be hit with compelling claims without having knowingly done anything wrong. A few decades ago, major employers thought that it was OK to pay part-timers a lower hourly rate than full-timers or to exclude them from pension schemes. It didn’t occur to them that this practice could amount to indirect sex discrimination. A little later, the incremental pay schemes to be found in most of the public sector came under attack in cases where men were generally higher up the pay scale, and it was arguably taking too long for women to catch up. Employers need to be alert to where the next challenge may be coming from. In what circumstances, in particular, should employers and their legal advisers consider workplace mediation before any court or tribunal proceedings begin? The most obvious example is the case where the parties wish to preserve or restore the working relationship. The chances of doing so are usually reduced once proceedings have commenced and the solicitors for the parties start to document allegations and counterallegations. From my time as a judicial mediator, I can recall only two disability discrimination cases where discussions resulted in identifying reasonable adjustments that were mutually acceptable. Those cases were a tiny fraction of the mediations I dealt with. Usually, the employment relationship was irretrievably broken, and the only issues in the mediation were to agree on a settlement figure and sometimes a reference. There are also sensitive cases where there are contract or shareholder disputes in the courts as well as an employment claim, and cases where it is in everybody’s interest to negotiate a confidential agreement in order to avoid reputational damage. Religion and Belief Discrimination is a particularly topical area. What emerging trends or issues are you seeing in this field? What are the main potential challenges for employers? There have been several important appeal decisions, including one judgment from the European Court of Human Rights. On the one hand, it has been established that only the most extreme views are “beyond the pale” and undeserving of protection. On the other hand, it is equally clear that there are some limits on the ways and terms in which particular views can be expressed, particularly to avoid harassment complaints. The main challenge for employers is to avoid being trapped in the middle of a dispute and being attacked by both sides. In particular, penalising employees for expressing gender-critical views or making adverse comments about same-sex marriage or adoption could lead to complaints of religion or belief discrimination. However, doing nothing, when other employees suffer distress, WWW.LAWYER-MONTHLY.COM 19 It is essential for employers to update their disciplinary policies and provide training to define the constraints on freedom of expression, helping to avoid legal disputes while balancing the needs of all employees. for a high headline figure. For example, ‘STEM jobs’ tend to be highly paid, and there are still more men than women applying to do them. Probably the most serious misconception is that most equal pay cases involve employers who are deliberately paying women less than men for doing the same work. I am in no doubt that direct discrimination in relation to basic pay and bonuses still occurs, and that employees and their advisers can face real difficulties in obtaining information about pay disparities. I have already mentioned the (in my view regrettable) withdrawal of the statutory questionnaire procedure. However, the overwhelming majority of the equal pay cases in this century have been indirect discrimination cases— mainly equal value cases. Women contend that their jobs are of equal value to higher-paid jobs done mainly by men (often on a different site). If the women, although a majority in their jobs, have male colleagues, and the women succeed, these colleagues can pitch in with ‘piggyback’ claims. The danger here is if employers share the misconception that it is only ‘bad’ employers who have anything to fear from equal pay claims. Employers need to be aware that good intentions and a desire to treat staff fairly cut no ice when facing indirect discrimination pay
could lead to complaints of harassment related to gender reassignment or sexual orientation. It is important for employers to update their disciplinary policies, preferably in consultation with employees, to define in the clearest possible terms the constraints that may have to be placed on freedom of expression. It is also essential to back up the policy by providing training for managers and other employees. There is now a good deal of case law that can be used as part of the training to illustrate both good and bad practice. If, despite the policy and the training, an employee complains about views expressed by another employee, that is a situation in which workplace mediation may be particularly helpful, given the risk that either taking action on the complaint or taking no action could lead to tribunal proceedings. What are your main recommended topics for talks to legal practitioners and their clients and for training seminars? A key topic for senior managers, HR professionals, and legal advisers is equal pay. We have seen, most recently from the supermarket cases, how a few claims can open the floodgates to further claims. It is possible, in the course of one talk or seminar, to cover the entire range of employment practices that could give rise to equal pay claims, and potential defences to claims, such as market forces. A very specific issue that should be discussed in a session for senior managers, legal advisers, and HR professionals is job evaluation. In what circumstances is an organisation most at risk of equal value claims? Where there is no current grading system based on a job evaluation study (JES), could adopting a JES help protect against equal value claims? What are the potential disadvantages? Where there is an existing JES, what could make it vulnerable to a challenge? I delivered a judgment some years ago that rejected a challenge to a major scheme. I am also familiar with cases in which challenges were successful. A further key topic is religion and belief discrimination, for the reasons already discussed. What advice would you give to organisations looking to foster a more equitable workplace and mitigate equal pay and other discrimination claims? First, stating the obvious, employers and managers need to understand and comply with the many obligations Parliament has placed on them. Secondly, they need to understand their organisation’s existing pay and other employment practices and arrangements. I have already mentioned 20 LAWYER MONTHLY DECEMBER 2024 that an organisation’s headline gender pay gap figure does not give any useful information to outsiders. However, the detailed information compiled as part of the exercise can give a great deal of useful information to the organisation’s own managers. It is also important that the organisation’s records include detailed information about previous internal decisions relating to matters such as pay, recruitment, and promotion. Equal pay cases have been lost because managers simply did not know the reason for a difference in pay that had existed for some years. Thirdly, employers need to be open to changes in employment practices and ready to extract advantages from them. Thirty years ago, it was lawful for employers to discriminate against disabled workers. Now, employers know that a very wide range of disabilities can be accommodated by making appropriate adjustments. Similarly, they see the mutual advantages of familyfriendly employment policies. Fourthly, equal opportunity policies must be supported by providing appropriate training. Employers need to be aware that good intentions and a desire to treat staff fairly cut no ice when facing indirect discrimination pay claims. They can be hit with compelling claims without having knowingly done anything wrong.
WWW.LAWYER-MONTHLY.COM 21 Looking ahead, how do you foresee the landscape of discrimination law evolving, especially with the rise of remote work and changed workplace dynamics? We already have laws on flexible working, including working from home, but remote working has become widespread, and reductions in the working week are increasingly being claimed or negotiated. The new Employment Rights Bill contains an important provision affecting such issues. At present, an employer who is refusing a formal application for flexible working must identify the ground(s) for refusal. The employee can complain to an employment tribunal that the decision to reject the application was based on incorrect facts, but clause 7 of the Bill would also enable the employee to complain that it was unreasonable to rely on the specified ground(s). This change could create a good deal of work for employment lawyers. In addition, granting contract changes for flexible working to some workers and refusing it to others can result in equal pay claims, because equal pay legislation covers other contract terms as well as pay. Moreover, a reduction in contracted hours without any change in pay obviously increases the hourly rate of the fortunate employee, and that increase could generate equal pay claims from employees whose pay has remained at the lower hourly rate. Other clauses in the Bill relate to steps to prevent the harassment of employees by third parties and equality action plans for larger employers, but these provisions are to be fleshed out in subsequent regulations. Of course, a Bill can undergo major changes during its passage through the two Houses of Parliament and the various Committee stages. About Michael Malone Michael Malone is a non-practising solicitor, mediator, and retired employment judge. He is based at Trinity Chambers Newcastle and divides his time mainly between the North East and the North West. He has substantial experience as a former judicial mediator and is also CEDR accredited. He is a Fellow of the Chartered Institute of Arbitrators. Michael writes and lectures for both professional and lay audiences on equal pay and discrimination law generally. His publications include Discrimination Law - A Practical Guide for Management (Kogan Page 1993). Subsequently, he was the joint author, with Martin Edwards, of two editions of Tolley’s Equal Opportunities Handbook. He currently updates, at quarterly intervals, the equal pay and pensions chapters of Butterworths Discrimination Law. Michael did a great deal of equal pay work during his time as a salaried employment judge. The most high-profile case he chaired was a challenge to a job evaluation study covering approximately one million jobs (‘Hartley’). Tribunals that he chaired also considered market forces defences in that case and two other cases. Contact Josh Stewart-Tilling Tel: 0191 232 1927 Email: josh@trinitychambers.co.uk www.trinitychambers.co.uk
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