Category Archives: Articles

Overcriminalization of America

Civil society flourishes when its people – young or old, black or white or brown – can trust that justice will be dispensed without fear or favor.

The American criminal justice system presently is broken, and an example of justice run amok. The system has deteriorated to a point whereby innocent people are being imprisoned even with the lack of sufficient evidence. For the real criminals, punishments are often not commensurate with the crime. Presently, many non-violent offenders serve more time behind bars than murderers, rapists, and armed robbers. Consequently, the criminal justice system does more harm than good – destroying lives, shattering dreams and crushing hopes and aspirations for happiness.

Being the world’s largest democracy is supposed to make America a faithful steward of the fairest and finest legal system the world has ever known. However, the U.S. legal system runs counter to traditional American core values. 25% of total global prisoners reside in the U.S. even though America is only about 3% of the world’s population. About 7 million are now under some form of penal supervision, and roughly 100 million people have criminal records.

Presently, the U.S. lead the world in highest prison population, longest prison time, most business deals for contractors and lobbyists, and highest recidivism rate.

The credo of legal jurisprudence in any civilized dispensation is that the accused is presumed innocent until proven guilty by a competent jurisdiction. However, in the United States of America, the reverse is the case due to its misguided penal policies.

Under normal circumstances, obeying the law is enough to shield anyone from trouble. Unfortunately, the current dispensation is hardly normal and being careful in private or public life does not insulate against being caught in the cobweb of the numerous laws and regulations that are the hallmarks of the criminal justice system. Stories of prosecutorial abuse run like a horror movie and the fear of prosecutors “is the beginning of wisdom.” They take to the extreme the dangerous impulse to punish perceived offenders – real or imagined. Prosecutors have enormous power and discretion to pick and choose who goes to jail and who does not. Reports of unwarranted arrests, police brutality, senseless prosecutions, and mass incarceration are a commonplace to the extent that the country’s legal system is teetering dangerously towards a precipice.

The visible signs of pain and anguish can be seen in many families devastated by the imprisonment of a loved one and the so-called respect for human rights can only be thought of in comparative terms. The lack of a guilty mind no longer matters in criminal cases in U.S. courts. As a result, the nation has drifted from the core foundations and principles on which the Union was built, which add up to one concept and one word: freedom. In the context of the nation’s criminal justice system, this “American Creed” lies in tatters.

Although lawmakers can do more to remedy the situation, because of political expediency, the legislative arm of government continue to enact laws and regulations that criminalize harmless acts.

While many of us believe that it is the responsibility of the government to punish criminals for public safety and security, and the fact that society has a right to demand punishment for wrongdoers, however, this fundamental tenet must operate within a justice system that is equal and fair. Punishment must fit the crime, and the innocent must not suffer unjustly for crimes not committed.

There is no justification for mass incarceration; it could no longer be defended morally. America needs a more rational and sensible justice system, one that is fair – a people’s justice system – that all can trust to protect them while punishing offenders appropriately and ensuring that innocent people are not unfairly prosecuted or imprisoned. Only a reformed justice system can give practical meaning to the noble ideals on which the nation was founded. A commonsense approach to the criminal justice system in American might someday be possible, but not anytime soon given the interplay of politics and business within it.

In my book, American Criminal Justice System, Inc: Rogue Criminal Prosecution in an Era of Mass Incarceration, I presented compelling arguments of how government prosecutors and their cronies use crazy laws, plea bargain, false witnesses and other unwholesome tactics to oppress its people. With so many locked up, the United States has become a nation that feeds on its own.

– This article is an excerpt from my book, American Criminal Justice System, Inc: Rogue Prosecutions in an Era of Mass Incarceration.

 

Author, American Criminal Justice System Inc: Rogue Prosecutions in an Era of Mass Incarceration Website: http://www.fredeghobor.com

How Mergers And Acquisition Affect Company

Mergers and acquisitions keep happening in the corporate world. Both of these two activities are often construed as the magic elixir that will enhance the prestige of a newly formed company, grow sales and save cost up to a great extent through synergies.

However, Mergers and acquisitions are just like gambling. A lot of risks are involved in it and you can’t foretell the size of return in advance. If you don’t handle it carefully, it can even backfire and may result in more cost than projected. It can even damage the company completely.

So, the biggest question is how Mergers and acquisitions affect a company? Let’s have a look at some points mentioned here below-

1. They Become Bigger In Size
Many companies agree to M&A to grow their size and become bigger compared to their rivals. It may take several years to double or triple the size of a company through organic growth. But, if two different companies are combined into one, the value of a new company may overcome several small companies available in the market. In such a case, both companies are benefited hugely from the additional value.

2. Synergy
The main motive of a merger or acquisition is to increase the performance of a company for its shareholders with the help of synergy. Actually, it’s a concept which illustrates that if performance and the value of the two companies are combined, their output will always be bigger than the subtotal of the separate individual parts. In simple words, two business organizations can generate more revenues jointly than it could be fetched if they worked independently. So, companies measure potential synergy before making an M&A transaction.

3. Getting Unique Capabilities
On a number of occasions, mergers and acquisitions take place to get unique capabilities or resources, which can help the company to become a monopoly in the market. For example- If a new company acquires patents and licenses after making M&A deal, it can easily increase its sales and profits because of the innovation and efficiency caused by the merger or acquisition.

4. Capitalize the Government Policies
Mergers and acquisitions also happen to cope with unfavorable government policies that make it mandatory for companies to have a certain size to exist in the business. On the other hand, some governments provide tax breaks and other incentives to big companies. Mergers help companies to lower their tax liabilities and increase their profit margins.

5. Ability To Deal With Larger Clients
Mergers and acquisitions take place to deal with a large number of clients and increase the financial benefits. For example- M&A activity in law firms allows the company to access more resources and expertise & serve a large number of clients easily and quickly.

6. Termination Of Employees
Whenever two companies are combined into one or one company acquires another firm, employees are fired from their jobs. The new company wants to downsize the labor force and make the most use of the available talent. In some cases, the salaries of the workers are reduced to cut the operational cost.

This also provokes employees to leave the job and look for other options. These activities can fill negativity in the minds of existing staff and their performance/output is affected badly. Due to the different work culture, employees often clash with each other. It may affect the overall performance of the company a lot. If you don’t address this problem quickly, it becomes very difficult to operate the company smoothly and easily.

In some cases, many employees take legal action against the company because of their termination. Therefore, while getting involved in an M&A transaction, you should consider the interest of employees and shareholders seriously and try to solve the matter in a friendly manner. If any problem arises, you can take the help of M&A Law firms. They can assist you to follow the government recognized law in M&A transaction and will keep you to deal with any sort of legal trouble in the future.

7. Overpayment
The clash overpayment is quite common in M&A transactions. There are many cases when the company A accuses B of financial misappropriation and takes the legal action to get its money back from the company B. Such a scenario is harmful to both companies as involvement in prolonged legal battle can damage their reputation in the market and hurt them financially.

If you get trapped in such a complicated mess, you should hire expert Mergers and Acquisition Lawyers without having any second thought. They have the knowledge of different laws related to the M&A transactions and can help you to perform merger and acquisition without any legal hindrance.

Final Words:
M&A transactions affect the acquisitive companies in many ways. These are some important impacts that are likely to be faced by the firms.

Source: http://www.apsense.com/article/how-mergers-and-acquisition-affect-company.html

Civil, Family or Criminal Law Firms Sydney – Basic Rules to Build a Successful Legal Practice

With so many law firms out there it can be overwhelming when setting out to open one of your own. The first thing you need to do is to distinguish your firm and stand apart from your competitions. Once you ascertain your firm’s area of expertise – corporate, civil, family or criminal law firms Sydney, the next important step is to establish main practice areas that are exclusive to your firm. This is imperative to make clients choose your legal practice over the many others present around you.

If only there was a magic formula to achieve success. However, there are certain rules to the game that you, as a competitive law business, can set and follow to accomplish enhanced performance, successful revenue generation, and strong client relations. Here are a few of them –

1.Chalk out an effective marketing plan – to build a solid marketing policy for your various law firms or let’s say for example criminal legal enterprise Sydney you need to pick out your collective and individual proficiencies, study your competition and analyze the services you provide in comparison to other similar law practicing agencies in your community. Selecting a good, reliable business developer and manager can develop a positive marketing strategy for your business, giving it the right exposure and boosting up your firm’s count, both in numbers and client database.

2.Providing clients with top notch service – to become a successful law agency, you need to provide your clients with the best and consistent services. Clients look for lawyers who are attentive toward them and offer exceptional services along with a successful outcome. Establishing a bond with your clients, conducting client satisfaction surveys, studying client growth and retention reports carefully are some of the steps you can incorporate to deliver what your clients need and achieve a reputable and successful other including criminal legal practice Sydney.

3.Making the workplace comfortable for your employees – a happy office environment ensures happy workers and in turn, high productivity. Firms with great people development skills have great records of stability and minimal attrition rate. Successful legal practices realize that not all of their employees are lawyers and consciously work towards a healthy work environment to incorporate everyone as a team.

4.Specializing in your area of interest – this gives you and your enterprise an upper edge. However, to achieve this you need to ensure that you have the right background and people to add credibility to your specialized area or areas of practice, build on it and publicize your accomplishments. These can be your selling point distinguishing your business from others. For instance, if yours is a criminal law firm Sydney, you will want to have a background showing your interest in your core focus, so people needing your legal aid relating to crimes can rely on you to get them out of their sticky situation successfully.

5. Clients belong to the firm – all leading civil, family or criminal legal organizations Sydney place great emphasis on things like client satisfaction, teamwork, and positive quality outcome. The goal is to better serve particular clients or industries with the team of professionals dedicated to them and their cases. Successful legal businesses consider overall contributions to the firm’s accomplishment rather than giving credit to an individual. Lawyers in such firms are encouraged to not think of clients as belonging to them, but to the firm. The firm needs to work as a whole and address and solve issues raised as a team and not a single lawyer.

Summary

Developing the above-mentioned points is a long term program for which you require willingness and patience. However, following these habits will surely give you and your law enterprise rewarding results.

Bar Exam Preparation Courses Compared – Cutting Through the Clutter of Thirty Six Company Offerings

The Definitive Guide and Analysis for Finding the Right Bar Prep Course for the First Time Taker

Since you have landed here, I am assuming that you have either successfully finished law school or will be graduating soon. Understanding the rigors you have endured, congratulations is certainly in order. But like me, after finishing law school, I am sure you are thinking “okay, I successfully jumped that hurdle, now I need to jump the next and most important one – passing the Bar.”

Taking the Bar exam is much different than taking an exam in law school. Putting aside the logistics, time constraints, and two day intensity; the Bar exam is put together by the state bar regulatory agencies in an attempt to test for whether a person would be a competent attorney. Thus, the exam is different in many ways as to what you have been exposed to.

For this reason alone, taking a Bar preparation course is critical. And note, if this is the first time you are taking the Bar exam, it is important that you choose a full service course which prepares you for all aspects of the exam including the multiple choice, essays and the performance exam.

For many of you, passing the Bar exam the first time is vital. For some, you already have a job lined up which would disappear if you didn’t pass the first time. Others may have had to take out substantial student loans which now, that you have graduated, will require repayment.

Either way, a Bar exam preparation course is essential. To further complicate matters, as I am sure you have heard, and as amply reported in publications like the Los Angeles Times and the ABA Journal, Bar exam pass rates have been on a steady decline for the last several years. To compound that problem, many states, like California, are refusing to lower their exam pass cut lines to raise the pass rates.

In other words, the state bar licensing agencies are refusing to grade the Bar exam on a curve, citing the need to preserve public protection. As a result, today’s Bar exams are just as difficult to pass as those given twenty years ago when I took mine. So then you might be wondering, “why are the Bar pass rates steadily decreasing, it is not as if today’s students are less intelligent than those from twenty years ago?”

You are correct, today’s students are just as intelligent, but there is something else going on. An analysis was done and the researchers found that the decline was not due to lower scores on the multiple choice portion of the exam (known as the MBE). It was determined that the lower bar pass rates were due to a higher failure rate on the essay questions.

It was found that because of societal changes (including that students today study in a different manner than in the past) and changes in the way many law schools are administering their classroom exams, many of today’s students taking the Bar are having difficulty following the call of an essay question; they are not spotting a sufficient number of issues in the fact patterns; they are having trouble applying the law to the facts and analyzing them; and their grammar and spelling is not up to par.

Unfortunately, the long standing traditional Bar preparation courses have not adapted their curriculums to compensate for this change. In the past, the MBE was considered the most difficult and tricky portion of the exam to pass. Consequently, the major emphasis, in the companies offering full service Bar review, focused on the techniques of mastering MBE.

These full service companies provided essay questions with model answers and had some discussion about the basic IRAC approach (Issue, Rule, Analysis, Conclusion, a cumbersome, outdated method not really suited to address today’s timed essay questions containing multiple issues and cross over subjects). The companies assumed the skills required to actually break down and analyze essay questions were learned within the law school curriculum. Basically, the methodology for these companies in preparation for essay exams was the old axiom, “practice makes perfect.”

Today, although the full service giants in the Bar prep industry like BarBri, Flemings, and Kaplan, and the smaller ones like Bar Max, AmeriBar, and Themis, continue to offer full service courses and dominate the market, their curriculums have remained the same for several years.

When choosing a Bar exam preparation course, remember that not all courses are alike. Most of the Bar review courses are not full service courses, as they focus on one particular aspect of the Bar (usually as a supplement). For example, courses their courses may only focus on the MBE portion or the essay portion or just the performance portion. Then there are companies which focus on a particular type of exam or jurisdiction, for example, a course focusing just on the California first year exam or the New York exam. Other companies are focused on those students who have previously failed the exam, and thus their approach with the second time takers is much different than if you are a first time taker.

If you are a first time taker, these limited courses will not fulfill all of your needs and should not be considered as your primary Bar preparation course. If you find that you need some supplementation at some point, then, of course, you should look at what they offer.

Because it is critical that as a first time taker you take a full service course, I will not be including those limited curriculum focused companies within the comparison below. The companies, that I know of, which have the limited focused curriculum include: Adapti Bar; Bar Graders; Bar Made Easy; PMBR; Bar Outlines; Bar Secrets; Bar Review Solutions; Bar Prep Hero; Smart Bar Prep; Omni Prep Patent; Internet Bar Exam Review; My Bar Prep; Pass the Bar; Pieper Bar Review; Marino Bar Review; Bar Exam Doctor; Supreme Bar Review; Skillman Method; and The Writing Edge.

In addition to these limited focus companies, there are several companies which provide Bar review in a tutorial setting, whether one-on-one or in small groups, but mostly face-to-face. These are usually regional companies, requiring your attendance and have very limited enrollment. In addition, because they are so hands-on personal tutorial courses, they mainly cater to those Bar takers who have previously failed the exam.

Because of the small capacity, the regional considerations and that the course curriculums often focus on the student who has already taken the Bar exam, I am of the opinion that these companies should also not be considered by the first time taker (but of course, that is a personal choice). Thus, I will not include the companies that focus on a tutorial format in the comparison below. The companies, I know of, in this category include: Bar None Review; Bar Plus Review; Bar Review; Bar Winners; Law Tutorial; Law Tutors; Open Book; Southwest Bar Review; The Bar Coach; and The Bar Code.

That leaves the full service companies for your review and comparison. The full service companies, which I am currently aware of, include: Side Bar; BarBri; Bar Max; Kaplan; Themis; Flemings; and AmeriBar.

Before we begin the comparison, I would like to say a word about published Bar pass rates and published pricing for these individual companies. Of the seven full service Bar Prep companies, three (Themis, Bar Max, and Flemings) publish Bar pass rates. BarBri does not officially publish Bar pass rates, however it has been reported in the press that their sales people verbally tout an 80 percent pass rate.

The publication of a Bar pass rate, by a Bar prep company, has always left me in a quandary. How precisely do these companies establish a protocol to accurately assess the percentage of those people who have taken their course and then passed the Bar exam?

It seems to me to be enigmatic to make such a determination and then publish this as a selling point. The individual state bars administering the exams certainly do not collect any data concerning whether a person took a Bar prep course, more or less a particular brand. In addition, many states do not publish the names of those people who passed the exam.

Thus, the official arbiters of the exams certainly are not the source of this information for the Bar prep companies to publish. There can be only one way to establish this kind of information which would be unreliable and thus produce inaccurate results. That would be after the six months of taking the exam and then receiving their results, each individual student would have to contact the Bar prep company they used and tell them whether they passed or failed the exam.

For a pass rate to be reliable and accurate, 100 percent of the those who purchased the Bar prep course would have to voluntarily respond to the company and be truthful about whether they passed or failed. If even a fraction of those (let us say 20 percent) did not respond to the company, the results would be far from accurate and thus misleading to publish.

Someone once told me that at least one of the companies establish their pass rate based upon those who took the exam, failed and then contacted the company requesting to retake the course for free. Here again, this can never be an accurate portrayal of a pass rate because often, those who fail on their first try decide that the Bar prep course they took was not good enough and they then engage a different company to prepare them for the second go around (and as mentioned above, there are several companies only focused on that market niche).

Therefore, in my opinion, any published Bar pass rate proffered by a Bar prep company is deceptive. In using this as a criteria in your evaluation of the companies below, consider this; there is a Civil Jury Instruction in almost every State which basically says: “If you decide that a witness did not tell the truth about something important, you may choose not to believe anything that witness said in her other testimony.” There is much wisdom behind that jury instruction, and based upon that criteria, I personally cannot recommend any company which publishes Bar pass rates.

If you agree with my opinion concerning published pass rates, that would eliminate Themis, Bar Max, and Flemings from serious consideration (and if the BarBri sales representatives are also instructed to tout these pass rates, they should be eliminated as well).

That leaves four full service companies (Side Bar, BarBri, Kaplan, and AmeriBar) to evaluate and compare. However, to be fair, all seven companies will be included in the comparison below.

Now about published pricing. Here again, not all companies are alike and have different and sometimes complex pricing structures. For example, Flemings has different tiers of pricing: Short Term is more than $2,000, Long Term is more than $3,000 and Ultimate is in excess of $6,000. Each tier has a different level of course and preparation materials provided. AmeriBar has a similar tiered pricing structure.

I question this kind of pricing, because how is a first time Bar exam taker going to know what level or tier is right for them in order to pass the exam? Frankly, if the first time taker actually knew the answer to that question, they would be so clairvoyant and knowledgeable that they would not need a Bar prep course at all.

On the other hand, other companies, like Side Bar, provide 100 percent of all course and preparation materials, that would be required to pass the Bar, for a single price.

Thus, it is difficult and confusing to attempt to compare a company that provides tiered pricing, versus an all inclusive fee company, as it would be trying to compare apples and oranges. Thus, I suggest that once you have settled upon two companies to choose from, and one of those companies has tiered pricing, that you then delve into those pricing tiers and attempt to make a subjective evaluation for yourself.

However, if you are like me, and simply eliminate from your consideration those companies who engage in publishing Bar pass rates and those that have tiered pricing, that leaves three full service Bar prep companies for your review which are as follows: Side Bar, BarBri, and Kaplan.

For your comparison, these are listed first and then the other four full service companies will follow. A good place to start the comparison is the newbie on the block – Side Bar.

Side Bar

This full service Bar prep company was recently established to address the declining Bar pass rates. With their system, the student is not left on his/her own to figure out what to do and where to start. It is all laid out in a progressive plan which the student follows within his/her own schedule.

There are no lectures to attend or watch, no flash cards and no hype about customization to the student’s particular strengths or weaknesses. What is presented are specific methods, techniques and tips to succeed in both the essay questions and the MBE questions, coupled with tips on how to pass the performance exam, mated with practice exams and optimal answers.

The MBE section not only gives the student the methods of how to approach the questions and how they are developed, but also 170 specific tips separated by subject to tackle the difficult questions. Further, 2000 practice MBE questions are provided not only with an answer key, but with explanations which are part of the system’s law memory reinforcement.

Due to the declining Bar pass rate, careful attention is given to the essay exams. Students are taught, via a step by step method, how to approach, break down, analyze and write clean essay answers. The Side Bar method recognized that the Bar examiners are looking for different approaches in the different subjects, and the company addresses this. The method is formula driven and once the student learns the formulas, they can expect to go into auto-pilot in answering essays. To hone their essay skills, the company provides almost 60 practice questions with answers.

In addition the company has a memory system for the black letter law taught in all of the core courses tested on the Bar. This includes multiple course outlines, for each course, which progressively become more condensed as the student progresses through the course. These are matched up with a program of integration of the essay and multiple choice questions, which enhance memory reinforcement when coupled with the detailed explanation to the answers.

The company provides all course materials. There is nothing else to buy or look at. Everything is online and accessible via desktop, laptop, tablet or smart phone no matter the platform. There are no scheduling constraints as the student progresses at his or her own pace and at any time of day or night.

The regular price is $2495. The company currently offers a discount price of $1995. The price is all inclusive with no additional fees. They also provide discounts and rebates for referrals and quantity purchases.

They have a money back guarantee within fifteen days of the purchase. The subscription price includes access to all materials for eighteen months, thus no matter when the student is taking the Bar or if they have to take it again, the student has access to all course materials. This is also an advantage to those students in their last year of law school who wish to get a head start on preparing for the Bar exam.

BarBri

BarBri pioneered bar exam preparation fifty years ago and their reputation continues to attract the overwhelming majority of law school students each year. BarBri has what they call the MBE Immersion, built upon an experienced-based approach to improve law student performance on the MBE portion of the bar exam. This two-day class kicks off the bar review course and is designed to accelerate the pace the student learns the law and, in turn, successfully answer MBE bar exam questions.

The company also provides what they call BarBri Amp which they describe as an effective way to master the black letter law and maximize the student’s MBE score. Based upon the materials proffered, I was not able to determine the difference in methodology between the BarBri Amp and the BarBri Immersion. Both are linking MBE questions and answers with learning the law. The company provides a 200 question simulated MBE exam.

Additionally, BarBri provides what they call the Law Master Study Keys. The first key is to have a manageable and memorable framework to learn the law and understand where all of the rules fit into that framework. The next key to actually learning the law is to be able to bring together rules, the elements that comprise the rule, and a story to actually apply the rules and elements to real world scenarios.

Further, BarBri provides what is called the Essay Architect tool which provides immediate feedback for higher scoring essays. They claim that it enhances the student’s ability to write the lawyer-like answers that the bar examiners are looking for on the bar exam. The tool is online and by using the drag-and-drop features, the student practices essay writing following the standard IRAC format. Immediate feedback reinforces organization and structure.

The BarBri system requires lectures whether accessed in a classroom or online. These are provided in a structured format within schedules and access limitations. The lectures are given over a seven week period. Thus, the student is constrained to the course structure and has little flexibility in scheduling. There is no information on the company website, other than providing the simulated 200 question MBE exam, as to whether actual MBE and essay questions, with answers are provided to allow the student to practice on their own. Apparently, from examining the website, the company does not provide any assistance, course materials or simulated exams for the performance test.

The price is $3695. In addition, there is a course materials shipping fee of $30, a course registration fee of $250 and a refundable course materials fee of $250 once the course materials are returned. They provide an ABA premium discount.

The company does not provide a money back guarantee, however they do say that if the student fails their Bar exam that they can repeat the same jurisdictional state BarBri review course online when it’s offered next – without paying additional tuition. Apparently, none of the in-person services are available to a repeat taker.

Kaplan

The Kaplan course is very basic. The company provides course lectures whether in a classroom or online, and then provides essay and MBE practice questions with answers. The company states, that their syllabus adapts to the student’s needs, strengthening weak subjects with homework assignments designed for the student. The company motivates and engages the student by live streaming the classroom to their home. And once the student’s review course ends, they analyze the student’s performance and create a personalized Final Study Plan. They claim that this helps maximize the student’s points, and serves as a bridge between the last day of class and test day.

Their memory reinforcement technique is flash cards. The company claims to have total flexibility for accessing the lectures and other materials online, however, they provide no information as to how long the student has access to these materials and whether their “syllabus” is structured logistically and with time constraints (which is typical). Of course the classroom lectures would have scheduling constraints.

Outside of the course lectures, the company does not indicate whether they provide specific approaches, techniques and tips to answer both the MBE and essay questions and it does not look as though they provide any. However they do provide practice essay and MBE questions and answers, and they claim that with doing practice questions the students’ scores increase over time. In fact the company states, “a crucial component of test prep, it’s been shown that Kaplan students who submit more essays see improvement in their scores.” They also have a very large data base of practice MBE questions, cited to be 4000 and challenge students to complete all 4000. Apparently the company does not provide any assistance, course materials or simulated exams for the performance test.

The regular price is $2999. They currently have discounted price of $2399. There is an additional $250 registration fee.

The company does provide a money back guarantee for those who fail the Bar, however there are several restrictions which are as follows: Be a first time taker; have a JD from an ABA accredited school; be enrolled in the Kaplan Complete Bar Review course; attend 90 percent of all lectures prior to taking the Bar; complete all assigned exams, quizzes and homework prior to taking the exam; and take the very next scheduled bar exam after completing the course materials.

The following are the four remaining full service Bar preparation courses. However, they all have either “published” Bar pass rates or tiered pricing or both, which in my opinion are disqualifiers.

Flemings

Flemings is jurisdictionally specific to California only. They are the most expensive product on the market and have six tiers of pricing, with the most expensive being $6400.

Flemings uses the traditional lecture method, still mostly based within a classroom setting in California, with some accessibility online. The lectures are all within a structured format and within structured time limitations for the course.

The company claims to provide substantive law instruction with corresponding substantive law outlines, MBE instruction with corresponding MBE questions and answers, essay and Performance exam instruction with simulated exams, together with personalized oral feedback on CD for every writing assignment the student submits to their attorney readers. This method has been the traditional method/model for Bar prep courses for over twenty years.

The company states that essay, MBE, and performance testing is regularly scheduled and conducted under simulated bar exam conditions in each of Fleming’s bar reviews. As an example, in Fleming’s Long Term Bar Review, in addition to the exams covered during class instruction, the students are assigned forty-eight essay exams and nine performance exams to write and submit for an oral, audio CD critique and grading. In Fleming’s Short Term Bar Review, in addition to the exams covered during class instruction, the students are assigned thirty-five essay exams and four performance exams to write and submit for an oral, audio critique and grading.

Given the a la carte nature of the offerings from the company, it is difficult to compare prices of what they offer to the other full service companies. The closest would be their Long Term Review which has a cost of $3245 plus a $250 deposit. There are no cancellations, refunds or guarantees provided. There are no discounts provided for the actual courses, however the company claims that with a basic course purchase, a student may receive a discount on additional products in future purchases.

Themis

Right at the top of the home page and within several of the other back pages, Themis advertises their Bar pass rate. They emphasis this as a selling point. To me, as explained above, that is a big red flag. In addition, they make a statement on their website, claiming that they are “the only major bar review course developed to be completely online.” Obviously, as you can see from other company offerings, this is an inaccurate statement. Personally, no matter what the industry or product, I steer clear of companies which make untrue claims.

As with all of the other Bar prep courses, except for Side Bar, Themis is lecture based, however, they claim that they provide more flexibility for attending the lectures (all online) than the other companies. Given that many of the other companies also offer the lectures online with flexible accessibility, this is another inaccurate statement. The company states that with their Integrated Learning System, the student gets comprehensive outlines, practice multiple-choice questions, practice essay questions, on-demand lectures, and corresponding interactive handouts. Students who would rather study at their own pace have that option with their Flex Study mode.

The lectures are law course material based and thus, except for practicing essay, MBE and performance test questions, the students are not instructed on how to approach and analyze these questions in a way which will produce results. The student is left alone with the hope that practice makes perfect and they will learn from their mistakes.

The price for the course is $2095. They provide a $100 discount to active and retired military and also to active members in Phi Alpha Delta Law Fraternity, International and the Military Spouse J.D. Network. They do not provide a money back guarantee, however if you are a first-time Themis taker, and fail the bar, the company will provide the student with a free repeat of the course for the next administration of the same bar exam at no cost.

Bar Max

This is another company which advertises their Bar pass rates. In fact they make the claim that, “We release our pass rates while other bar courses refuse to.” Not only is the statement deceptive because some other companies do publish pass rates, the statement makes it sound as if the best criteria for evaluating a Bar prep company is its published pass rates. Again, as explained above, to me this is a big red flag.

As with many others, Bar Max is traditional and lecture based. The company provides, by course topic, an in-depth outline, an audio lecture from a law professor, and when appropriate, numerous flashcards for memory reinforcement. There are 50 hours of lectures. The entire course is provided either online or within their own iOS only App (no Android or Windows), thus, if you use the App, once loaded on your device, no internet access is required.

Upon enrollment, the student receives a Welcome Packet that includes skeleton outlines of lecture notes. The Welcome Packet also includes printable PDFs of performance tests and 180 practice essays from previous exams, with 2 model answers for each essay. The company provides 1750 practice MBE questions with answers.

The student will also receive 2 free writing critiques (performance tests or essays). Additional critiques can be purchased a la carte.

Once again, the lectures are law course material based and thus, except for practicing essay, MBE and performance test questions, the students are not instructed on how to approach and analyze these questions in a way which will produce results. The student is left alone with the hope that practice makes perfect and they will learn from their mistakes.

The price for the course is $999. They provide a “public interest” scholarship of $499 for those employed in qualifying public interest jobs or in the military. They provide a 100 percent refund within 7 days of the front end purchase. For California and Uniform Bar exam takers, they provide a money back guarantee for those who fail the Bar exam, however there are numerous restrictions including tight time constraints to apply for the refund.

AmeriBar

This company provides a tiered pricing system. The course, like most of the others. is based upon course lectures. There are 80 hours of online only course lectures. The company also provides books containing the course outlines and practice essay, performance test, and MBE questions and answers. They also have an extensive MBE online data bank of questions and answers.

Although the company provides some basic writing skills and the application of IRAC to essay writing, the lectures are law course material based and thus, except for practicing essay, MBE and performance test questions, the students are not instructed on how to approach and analyze these questions in a way which will produce results. The student is left alone with the hope that practice makes perfect and they will learn from their mistakes. In fact, the company makes the following statement. “The most effective way to prepare for the essay exam is to practice answering prior bar exam essay questions. You will learn which issues are often tested, and how common issues should be resolved.” In total they provide 3400 practice MBE questions and 150 practice essay questions.

Additionally, they provide attorney phone support. They also provide eleven essay critiques within the six week period before taking the exam. The basic course regular price is $2295, they are currently running a discount for $1365. There is a book shipping fee of $25. The company website makes the claim that, “we are the least expensive full service bar review course.” This claim is not supported by the offerings of other companies like Bar Max.

There is an undisclosed book deposit fee which is only disclosed after you sign up. Although this fee is not disclosed on the website, typically when a company charges a book deposit fee, it is $250. If you return the books within a designated timeframe the book deposit will be refunded. If you wish to have the lectures on an iPod, there is an additional fee of $249. They provide a refund within 4 days after purchase, less 12.5 percent restocking fee. Their pass guarantee provides that a student will receive a free retake of the online course as long as the student provides AmeriBar with a copy of the examiner’s notification letter within 10 days of the student’s notification.

Understanding Probation: How It Works and Its Effectiveness

Probation is basically the suspension of jail sentences in a manner than gives the convicted person the opportunity to remain in his/her community. Probation requires such individuals to follow conditions that will be described by the court. He/she will also be supervised by a probation officer. Common probationary conditions include taking part in community service, regular meetings with the probation officer, avoiding excessive consumption of alcohol and drug use, and making court appearances when required.

The probation period imposed on an individual is determined by the laws of the state in which he/she resides, and the offence committed. Generally, probation lasts between one and three years. Nonetheless, it can be longer in special circumstances especially when the offender is convicted of more serious crimes such as sex or drug offences. Probation can also exist immediately after someone is bailed out of jail, especially if they are a repeat offender. Anyone who utilizes a bail bonds company or service can be put on probation at any time.

Terms of Probation

Apart from reporting to your probation officer and making court appearances as requested, you are also supposed to adhere to a number of probationary terms and conditions that will be determined by the court. These include paying restitution or fines to your victims, avoiding certain places and people, not travelling outside the state without seeking permission from your probation officer, obeying all state and federal rules regardless of how trivial they might be, and agreeing to random alcohol and drug tests.

Generally, the conditions that you will be required to adhered to will be dependent on the criminal violation that you were charged with. For instance, you may be required to undergo drug tests if you were charged on a drug-related offense.

Violation of Probation and Revocation Hearing

Probation violations mainly occur when one breaks any of the conditions and rules that pertain to his/her probation order before the elapse of the stipulated probation period. When it is discovered that there has been a violation, your probation officer will either give you a warning or ask you to attend a violation hearing. If it is ultimately established that you violated the terms and conditions set forth in your probation order, you risk facing additional probation terms, jail term, a revoked probation, or heavy fines.
During your revocation hearing, the prosecutor must prove that you violated a condition or a term of the probation order by use of a preponderance of the evidence benchmark. Like any other criminal proceeding, it is your right to be informed about new charges that have been brought against you. If your probation is revoked by the judge, it doesn’t necessarily mean that you are staring at a jail term.

There are numerous options available to the judge including extending the probation period or imposing additional fines. If you are sentenced to a short jail term, you can request for a bail hearing that allows you to be free until your case is determined. You can also appeal a violation conviction at a higher court if you think that the lower court erred.

How to get a law training contract

Those looking to pursue a career in law will know that training contracts and pupillages are the golden ticket – and final step on the road to qualifying as a solicitor.

This period of recognised training helps you put your knowledge into a real-life context, and over two years you have the chance to learn about the law firm’s different departments, including contentious and non-contentious practice areas, and get training from an expert in the field.

With a training contract in place, you can pass the Professional Skills Course (PSC). You’ll need to have gained experience in client care and professional standards, financial and business skills and advocacy and communication skills.

With major opportunities for development at stake, you’ll need to find the law firm that’s right for you. LawCareers.Net has a great training contract search, so it’s worth beginning your search then.

Once you’ve made a list of firms you’d like to work with, you need to be able to stand out from the crowd. How do you do that when there’s so much competition?

With over 40 years’ of experience, Bindman & Co solicitors know what makes a great applicant. They have heavily invested in the training of future solicitors and legal professionals in their native North East, recently welcoming two apprentices and providing a Law Training Contract to one staff member.

Tapping into his years’ of experience, senior partner Leslie Bindman — who has been practicing for 41 years — has shared some advice on how to pip the competition to the post for that vital training contract…

Be selective – and know why you’ve picked the firm

You don’t want to limit yourself by only applying to one firm, but a scattergun approach won’t show your interest in an individual firm. Make your choice wisely, and make sure you include some reasons why you applied to that firm in particular. Be considered, complimentary and honest.

Make sure you meet the firm’s criteria and show it in the application

You’re wasting your time – and the firm’s – if they need you to have grades you haven’t achieved, or don’t meet other criteria. Only apply for positions you are eligible for, and your 100 percent more likely to succeed. When it comes to the application, answer exactly what you’re asked – if you need to give two examples, give two. The devil’s in the detail, and you need to be able to follow briefs and instructions to the letter.

Get as much industry experience as possible
It’s an obvious one, but that’s because it’s so important. You need to show your dedication to the job and the industry, and having undertaken work experience is a great way to do this. Summer and winter breaks are a great time to do this – shadow a solicitor for a week, or answer the telephones in a firm – it all helps.

Show you’re a worker

Law’s an intensive course, so law firms are always impressed if candidates have managed to have a job whilst studying. It shows you’re a hard worker, stand on your own two feet, and can handle different types of responsibility.

Give it some personality

The law firm has to work with you for two years – if not longer if they offer you a position – so you need to makes sure you’re likeable. Find ways to showcase your personal interests and personality. Be yourself too, you want them to like you for you, and you need to be comfortable while you work there.

15 Common Myths About Child Custody

There are many misconceptions about child custody not only in Fort Worth but the entire world. Some divorcing parents are forced to believe in such myths because they are very common to a point many people think they are facts.

It is however important to get facts straight to those starting on this journey or even those that have been to several court proceedings but yet to receive the verdict from the judge.

1. The parent who leaves forfeits child custody

This is a common myth whereby those abandoned believe the other parent forfeits child custody the moment they left. They end not filing for child custody. Legally, both parents share child custody both legal and physical until they receive a formal child custody order from the court.

2. Only criminal cases are entitled to free legal representation

There are many parents who do not know that they are entitled to free legal representation. In child custody case if you cannot afford the services of a professional lawyer then you can request the court or legal aid to help by appointing one for you.

3. Only a lawyer can represent you in court

The main reason why you should hire a professional child custody lawyer is because they better understand the legal and court procedures such that they can help you get through the process faster. You are however entitled to represent yourself in court if you want to.

4. Child custody order by the court is final

A child custody court order is not final and can be changed by appealing. With the help of a professional family lawyer experienced in child custody cases, you will be able to file the right paperwork. Legal representation in the appeal process would also be vital in altering the previous court order

5. Mothers are favored in child custody

The court is not biased in any way based on gender. The court has only the interests of the child and therefore looks into various factors other than gender or financial standings.

6. Financially fit parents win custody

The decision of the court is never solely determined by the well-being of the couple. A number of factors are looked into.

7. Willingness to compromise is a sign of weakness

Sometimes based on a specific case, the court can grant custody to the parent who is more willing to compromise. The parent who is more than willing to sacrifice personal interests for the sake of the child’s interests mostly gets the custody

8. Parents who fail to pay for child support will be denied visitation

Usually, child custody/visitation and child support are considered completely different issues. This, therefore, means that failure to pay for child support does not guarantee that one will be denied visitation

9. Parents get awarded either legal or physical custody

Upon listening to arguments from both sides, the court may decide to award both parents legal custody but one to have the physical custody or completely deny one parent both legal and physical custody awarding them to one parent.

Legal custody is a case whereby a parent has legal obligations to their children but can’t live with them. In such a case, the parent will participate in crucial child welfare issues such as medical care and education.

10. Parents have a right to their children

This is one major misconception that many parents have. Parents don’t have a right to their children but rather obligations. Children, on the other hand, have all the rights and that is why the court always has the child’s best interests taken care of.

11. A child can decide the parent to live with once they reach a specific age

There is no law that says this. What happens is that as the child grows older, they will tend to be dissatisfied with spending time with either parent.

In such a case, a court hearing should be organized to change the parenting arrangement.
However, the child’s wishes will have to be keenly scrutinized before a decision is made.

Family reports from a neutral party especially a psychologist is taken as crucial evidence to grant the child his/her wishes.

12. Divorced parents find it easier communicating to each other through children

This is quite common as you will hear messages passed to the other parent after a weekend of visitation. As much many parents think it is working, the truth is that you are dragging the child into your own mess.

If divorcing parents have to communicate on anything, let them do it without involving the children.

13. Child support will not be needed in a case where parents share joint custody

Child support is actually factored in to provide financial support for the child. Whether they hold joint custody or not this should be set with the salaries of both parents factored in.

14. My ex and I are even- we do not need a court order

After divorce, there are some parents who maintain a respectful relationship like calling each other to know the well being of the child and offer the necessary support as needed. When this is the case, they feel there no need to involve lawyers and the court.

What will happen when your partner decides to move on and marry or get married? Such are the complexities of divorce that the court looks into and gives a custody order that will have the best interests of the child.

15. The parent with more money pays for child support

Courts usually have a mathematical formula that puts various factors into perspective whereby income of the parents is just part. With the formula, both parents will be given the amount they will pay as child support until the child attains the legal adult age.

Conclusion:

With a family lawyer, you will get to understand the entire process, guide you through the legal system and follow the right procedure to ensure the case is decided on your favor. Now that you have learnt the common misconceptions out there regarding child custody, it is crucial to make up your mind whether to hire a fort worth child custody lawyer or not. Despite the fact that you can file for legal child custody on your own.

Bank Guarantee can be released by an Additional Arbitration Award – Delhi High Court

One of the frequently encountered issue in arbitration proceedings is missing out of a claim and parties seeking remedy by way of an amendment to the award or by way of an additional award. Normally the scope of correction of the award under S.33 of Arbitration and Conciliation Act,1996 is limited to errors and if both the parties agree, an interpretation of an issue. But if a substantial issue is already decided in the arbitration award but a consequential prayer was missed out in the claim and hence arbitrator could not grant an award, then an application seeking additional arbitration award can be filed. In such situations, the opposite parties also raise the issue of limitation, without understanding the settled law that the consequential directions do not require to be raised within the limitation period, if the substantial issues are already raised within the limitation period.

Relating to an arbitration arising out of a supply contract between Motorola and Mahanagar Telecom Nigam Limited (MTNL), in a proceeding to challenge the arbitration award under S.34 of the Arbitration & Conciliation Act,1996, Delhi high court by a detailed judgment dated 31st March, 2017, in SCC Online Del 7736, upheld the sustainability of not only the main arbitration award but also an additional arbitration award. In this case MTNL challenged the Arbitration award which was in favour of the claimant on various grounds, before the High Court of Delhi.

Both the arbitral awards involved in this case were passed by a sole Arbitrator arising out of a Letter of intent dated 11th January 2000, for providing 50K lines of CDMA IS-95 A, WLL equipment project in Delhi MTNL on turnkey for survey, design and supply of equipment, installation, testing, commissioning, making over system consignee, training, providing AMC etc., in favour of Motorola. The arbitrator passed the final arbitration award in favour of Motorola, holding that the breaches to the contract are attributable to MTNL and not to Motorola.  But since there was no specific claim seeking the return of bank guarantees furnished by Motorola, the award did not have such a direction. Hence Motorola filed an application seeking an additional award, directing MTNL to return the Bank Guarantee. Hence Arbitrator passed an additional award directing MTNL to return the Bank Guarantees.

Hence MTNL challenged both the main award as well as additional award. The additional award was challenged under S.34 on two main grounds. The first was that the application was barred by law of limitation, hence it must be rejected. The 2nd ground was that in the absence of an issue relating to return of Bank guarantee and consequential findings in the main award, the arbitrator ought to have rejected the application for additional award. But in a detailed judgment, Justice Mr. Muralidhar of Delhi High Court upheld the award with a finding that the additional award is legal and no need to frame a separate issue for return of BG since the arbitrator has already found that the breach is committed by MTNL, in the main award and direction to return of BGs is just a consequential award.

What your Attorney wants you to know about Wrongful Death

As far as personal injuries go, the worst injury one can suffer as a result of someone else’s intentional or negligent behaviour is death. While the injured party can’t file a wrongful death lawsuit, his or her surviving family members can file a suit on behalf of the deceased person, also referred to as the decedent.

A wrongful death lawyer is needed when someone’s life has been taken due to negligence.
Although a successful wrongful death suit can’t bring the victim back, it can allow the victim’s loved ones to receive compensation for their loss.

Damages in a wrongful death suit can include loss of support, any medical and funeral expenses, and the loss of consortium.

The Dallas based law firms consist of attorneys that represent the deceased victim’s case, to ensure that the family receives a fair compensation to move on, however hard it may be.

What is Wrongful Death Law?

Wrongful death law applies in tort cases in which the defendant’s conduct has resulted in the death of the victim, leaving behind surviving family members and dependents who will suffer as a result of the victim’s absence. The purpose of these laws is to compensate the survivors, not the deceased victim. Wrongful death laws are found in modern state statutes. Time limits for filing suit, plaintiff qualifications, and permissible damages vary by state.

Most jurisdictions distinguish between wrongful death and a related claim known as a survivor action. Both causes of action serve the purpose of holding tortfeasors responsible for their conduct when the victim dies.

The difference is that wrongful death cases pay compensation to the victim’s family members for their own damages. They can recover for the loss of financial, emotional, and other support the victim had been contributing to the household.

When is a wrongful death claim applicable?

A wrongful death claim is applicable when a victim who would otherwise have a personal injury claim is killed as a result of either negligence or an intentional harmful act on the part of the defendant.

Who can file a wrongful death claim?

A wrongful death claim is usually filed by a representative of the estate of the deceased victim, on behalf of survivors who had a relationship with the victim.

In Dallas, a spouse may bring a wrongful death action, to the appointed lawyer, on behalf of his or her deceased spouse. Parents of minors may also bring a wrongful death action if one of their children is killed, and minors can collect compensation for the death of their parents.

Where states start to disagree is whether parents of adult children can sue, whether adult children can sue for wrongful death of their parents, whether grown siblings can sue for wrongful death, or whether extended relatives like cousins, aunts, uncles, or grandparents can sue. Usually, the more distant the familial relationship is, the harder it will be to show that you should be allowed to collect wrongful death damages.

Types of Common Wrongful Death Cases:

  1. Motor vehicle accidents: This is by far the most common cause of wrongful death. According to the most recent data available from the National Highway Traffic Safety Administration, there were a staggering 30,800 traffic fatalities in the US in 2012. Although there are some cases where neither driver in an accident can be found fully responsible, there are many more when someone who was driving recklessly-because they were distracted, fatigued, intoxicated, inexperienced, or impaired in any other way-caused the wrongful death of someone in their own vehicle or the occupants of another vehicle in the crash.
  2. Pedestrian accidents: Older adults and children are at a particularly high risk for being injured or killed in a pedestrian accident, although anyone can suffer from this type of accident. Common factors in pedestrian accidents include reckless driving, limited field of vision, and lack of pedestrian walkways.
  3. Medical malpractice: The most common allegation for medical malpractice is misdiagnosis or failure to diagnose a health issue, followed by surgery errors and treatment errors.
  4. Workplace accidents: While workplace fatalities are most common among manual-labor occupation groups, workplace accidents and deaths can occur even in a seemingly safe office.

The resulting compensation from a wrongful death suit varies but in most cases is greater than an average injury suit. The courts do take into account the suffering people go through after losing a loved one due to negligence.

Oftentimes it hurts more to lose a family member unnecessarily and therefore pain and suffering is awarded to families of the deceased. Other financial losses will also be considered such as hospitalizations as a result of the accident, doctor’s bills, loss of wages, future loss of wages and the cost of funeral services. Any financial loss, as well as pain and suffering, should be paid by the negligent parties.

 

Lundbeck: the EU General Court Endorses the Reasoning of the European Commission in Relation to Reverse Payment Settlements

I. Introduction

With the Lundbeck Decision, the European Commission (the “Decision” and the “Commission,” respectively) ended its ten-year investigation on reverse payment settlements and found that the Danish pharmaceutical company, Lundbeck, and four generics producers had concluded anticompetitive agreements, in breach of Article 101 of the Treaty on the Functioning of the European Union (the “TFEU”).[1]  According to the Commission, this would have allowed Lundbeck to keep the price of its drug citalopram artificially high and delay the entry of cheaper medicines into the EU market.[2]

On 8 September 2016, the EU General Court (the “General Court”) confirmed that certain pharmaceutical “reverse payment settlements” can constitute a breach of the EU antitrust rules (the “Ruling”).[3]  Under the so-called “reverse payment settlement agreements”, an original pharmaceutical manufacturer, or “originator”, settles an IP challenge from a manufacturer of generics by paying the latter to stay out of the market.

II. Background

Lundbeck is “a global pharmaceutical company specializing in psychiatric and neurological disorders”.[4] These include medicinal products for treating depression.[5]  From the late 1970s, Lundbeck developed and patented an antidepressant medicinal product containing the active ingredient citalopram’.[6]

After its basic patent for the citalopram molecule had expired, Lundbeck only held a number of the so-called “process” patents, which, according to the Commission, provided only “a more limited protection”.[7]  In particular, Lundbeck had filed a salt crystallisation process patent.[8]

According to the Commission, in 2002, Lundbeck concluded six agreements concerning citalopram with four entities active in the production or sale of generic medicinal products, namely Merck KGaA / Generics (UK), Alpharma, Arrow, and Ranbaxy.  Always according to the Commission, in return for the generic undertakings’ commitment not to enter the citalopram market, Lundbeck paid them substantial amounts.[9]  In addition, Lundbeck purchased stocks of generic products for the sole purpose of destroying them, and offered guaranteed profits in a distribution agreement.[10]

In October 2003, the Commission was informed of the existence of the agreements at issue by the Konkurrence- og Forbrugerstyrelsen (the “KFST”, the Danish authority for competition and consumers).[11]  The Commission took over the case and, by the decision of 19 June 2013, made the following findings:  (i) Lundbeck and the generic undertakings were at least potential competitors;[12] and (ii) the agreements at issue constituted restrictions of competition by object, in breach of the prohibition of anti-competitive agreements provided under Article 101 TFEU.[13]  The Commission imposed a total fine of €93.7 million on Lundbeck and € 52.2 million on the generic undertakings.  The Commission took into consideration the length of its investigation (almost ten years) as a mitigating circumstance which led to fine reductions of 10%.[14]  Lundbeck and the generic undertakings brought actions before the General Court, seeking the annulment of the Commission’s decision.  The Court dismissed the actions brought by Lundbeck and the generic undertakings and confirmed the fines imposed on them by the Commission.[15]

After the Lundbeck case, in 2013 and 2014, the Commission imposed fines on companies in two other reverse settlement investigations – one concerning fentanyl, a pain-killer[16], and the other concerning perindopril, a cardiovascular medicine.[17]  The Fentanyl decision was not appealed.  Several appeals against the Servier decision are pending before the General Court.[18]  In 2016, in the Paroxetine Investigation, the UK Competition and Market Authority (“CMA”) issued infringement decisions to a number of companies regarding ”pay-for-delay” agreements over the supply of an antidepressant.[19] These agreements were found to be an infringement by object and effect. In March 2017, the CMA issued a statement of objections relating to an agreement aimed at delaying the entry into the market for the supply of Hydrocortisone tablets. The CMA has not yet issued its final decision.[20]

In addition, since 2009, the Commission has been continuously monitoring patent settlements in order to identify settlements which it regards as “potentially problematic” from an antitrust perspective, namely those that limit generic entry against a value transfer from an originator to a generic company.  The latest report was published in December 2016.[21]

III. The Ruling

First, like the Commission, the Court analysed whether Lundbeck and the generic manufacturers concerned were indeed potential competitors at the time the agreements at issue were concluded.[22]  The General Court made the following findings in this regard:

In order for an agreement to restrict potential competition, it must be established that, had an agreement not been concluded, the competitors would have had “real concrete possibilities” of entering that market.[23]  The Court held that the Commission had carried out a careful examination, as regards each of the generic undertakings concerned, of the real concrete possibilities they had of entering the market.  In doing so, the Commission relied on evidence such as the investments already made and the steps taken in order to obtain a marketing authorisation[24]

Moreover, the Court noted that in general, the generic undertakings had several real concrete possibilities of entering the market at the time the agreements at issue were concluded.[25]  Those possible routes included, inter alia, launching the generic product with the possibility of having to face infringement proceedings brought by Lundbeck (i.e., the so-called launching ‘at risk’).[26]  More precisely, the General Court was of the view that “the presumption of validity cannot be equated with a presumption of illegality of generic products validly placed on the market which the patent holder deems to be infringing the patent”.[27]  Consequently, the Court, continued, “’at risk’ entry is not unlawful in itself”.[28]

As rightly noted by commentators, these considerations introduce a further layer of complexity in the already intricate relationship between EU Competition law and IP law. In addition, since the right to exclude lies at the core of any IP right and (if there is no competing product) to have a monopoly is not illegal, unless it is attained or maintained by improper means,[29] it can be argued that the Commission’s findings infringes Article 345 TFEU, according to which “[t]he Treaties shall not prejudice the rules in the Member States governing the system of property ownership”.  Thus, Ibañez Colomo has noted that “Lundbeck departs from the principle whereby an agreement is not restrictive by object where it remains within the substantive scope of an intellectual property right”.[30]  This principle would derive from the Erauw-Jacquery,[31] Coditel II,[32] BAT v. Commission[33] and Nungesser[34] rulings of the ECJ.  Ibañez Colomo’s point becomes particularly clear at para. 335 of the (Lundbeck) Ruling where the General Court expressly noted that “even if the restrictions set out in the agreements at issue fall within the scope of the Lundbeck patents – that is to say that the agreements prevented only the market entry of generic citalopram deemed to potentially infringe those patents by the parties to the agreements and not that of every type of generic citalopram – they would nonetheless constitute restrictions on competition ‘by object’ since, inter alia, they prevented or rendered pointless any type of challenge to Lundbeck’s patents before the national courts, whereas, according to the Commission, that type of challenge is part of normal competition in relation to patents (recitals 603 to 605, 625, 641 and 674)”.[35]

Second, the Court analysed whether the Commission was entitled to conclude that the agreements at issue constituted a restriction of competition by object, a point to which we will turn next.

IV. Conclusions:  On Reverse Payments as Restrictions of Competition by Object

The Lundbeck ruling brings a number of what Donald Rumsfeld would probably refer to as “known unknowns”, that is things we know we do not know, in relation to reverse payment settlements.[36]  Indeed, the findings of the Lundbeck ruling can be summarised as follows (see also the table below):

  1. There are certain patent settlements which are likely to be considered compatible with Article 101 TFEU. This is the case of settlements:a. In which, in the words of the General Court, “(i) payment is linked to the strength of the patent, as perceived by each of the parties; (ii) [payment] is necessary in order to find an acceptable and legitimate solution in the eyes of two parties and (iii) [payment] is not accompanied by restrictions intended to delay the market entry of generics”.[37]

    The inclusion of the word “and” is worrying.  The requirements set out in the preceding paragraph should be alternative and not cumulative.  Otherwise for a settlement to be lawful it must not delay entry (which probably is enough, in and of itself, to avoid the antitrust concern, namely, a delayed entry of generics) and it must be necessary (i.e., it probably needs to meet the requirements of an ancillary restraints defence, more on which below) and the payment might be linked to the strength of the patent “as perceived by each of the parties”.  Such an intrinsically subjective requirement appears to the writer as particularly complicated to administrate and at odds with the objective nature of Article 101(1) TFEU.  It would appear that the Court is encouraging conversations such as the following: “let’s settle, but only if we can ensure the settlement reflects (and comes across as reflecting) your and my perception of the strength of the patent (and a number of other cumulative requirements my lawyers and I need to meet), otherwise we might have an antitrust concern”.

    b. Qualifying for an ancillary restraints defence. e., settlements in relation to which the parties to the settlement (for the burden of proof will be on them) can demonstrate they are objectively necessary and proportionate in order to defend their IP rights.[38]

  1. There are certain patent settlements which are likely to be considered incompatible with Article 101 TFEU as restrictions of competition by object. The ruling is not particularly clear in this regard.a. A literal reading of paragraph 334 of Lundbeck could potentially make “problematic” each patent settlement “where they [provide] for the exclusion from the market of one of the parties, which was at the very least a potential competitor of the other party, for a certain period, and where they were accompanied by a transfer of value from the patent holder to the generic undertaking liable to infringe that patent (‘reverse payments’).”

    b. A more holistic reading of Lundbeck would confine the Commission’s finding to the facts of the case. Even though it is difficult to pinpoint what the court considered to be the decisive factors when stating that a reserve settlement constituted a restriction by object, the following factors appear to have been relevant:

    1. The allegedly “disproportionate nature” of such payments “combined with other factors, such as the fact that the amounts of those payments seemed to correspond at least to the profit anticipated by the generic undertaking”.[39] Referring to the US Supreme Court ruling in Actavis,[40] the Court indicated that “the size of a reverse payment may constitute an indicator of the strength or weakness of a patent”.[41]  According to the Commission “the higher the originator undertaking estimates the chance of its patent being found invalid or not infringed, and the higher the damage to the originator undertaking resulting from successful generic entry, the more money it will be willing to pay the generic undertaking to avoid that risk”.[42]
    2. Indeed, the correspondence between the amount of the payment that seemed and the profit anticipated by the generic undertakings if they had entered the market.[43] According to the Commission “the value which Lundbeck transferred, took into consideration the turnover or profit the generic undertaking expected if it had successfully entered the market”. [44]
    3. The absence of provisions allowing the generic undertakings to launch their product on the market upon the expiry of the agreement without having to fear infringement actions brought by Lundbeck.[45]
    4. The presence in those agreements of restrictions going beyond the scope of Lundbeck’s patents,[46] such as restrictions with regard to citalopram products that could have been produced in a non-infringing manner.[47]
    5. According to the Court, “the agreement at issue transformed the uncertainty in relation to the outcome of such litigation into the certainty that the generics would not enter the market which may also constitute a restriction on competition by object when such limits do not result from an assessment, by the parties of the merits of the exclusive right at issue, but rather from the size of the reverse payment which, in such case, overshadows that assessment and induces the generic undertaking not to pursue its independent efforts to enter the market”.[48] The generics thus no longer had an incentive to continue their independent efforts to enter the market.[49]
  1. There are certain patent settlements which (presumably) are considered to be incompatible with Article 101 TFEU as restrictions of competition by their effects. Hic sunt dracones.  More precisely, given that none of the pay-for-delay decisions dealt with by the  Commission conducted an effects analysis, we are left without guidance as to how that analysis will be conducted.  Again, a known unknown.  The Commission’s ten-year investigation on reverse payment settlements has not shed light to how to conduct an effects analysis under Article 101(1) TFEU.  We are left, perhaps, with the findings of the US Supreme Court in Actavis, according to which, “the likelihood of a reverse payment bringing about anticompetitive effects depends upon its size, its scale in relation to the payer’s anticipated future litigation costs, its independence from other services for which it might represent payment and the lack of any other convincing justification.  The existence and degree of any anticompetitive consequences may also vary among industries”.[50]

Moreover, to the extent that the case for restrictions of competition by object is administrability, this author cannot but note that the Lundbeck ruling does not constitute a positive evolution.  The General Court noted that “it is established that certain collusive behaviour […] may be considered so likely to have negative effects, in particular on the price, quantity or quality of the goods and services, that it may be considered redundant, for the purposes of applying Article 101 TFEU to prove that they have actual effects on the market”.[51]  However, the Decision has 464 pages.  Given that the Fentanyl and Servier decisions occupy 147 and 813 pages, respectively, in investigations that lasted for almost ten years, 27 months and 5 years (again, respectively), one cannot but wonder whether the Commission’s resources would have been better spent analysing the actual effects of the agreement and not defending a legal category.

 

   [1]   Commission Decision C(2013) 3803 of 19 June 2013 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement, Case AT.39226 — Lundbeck (the “Decision”).
   [2]   See European Commission Press Release IP/13/563, of 19 June 2013, available athttp://europa.eu/rapid/press-release_IP-13-563_en.htm?locale=en
   [3]   See T-472/13 Lundbeck v. Commission [NYR] (the “Ruling”), of 8 September 2016.
   [4]   See, for more detail, http://www.lundbeck.com/global/about-us.
   [5]   See Ruling, at para. 1.
   [6]   See Ruling, at para. 16.
   [7]   See European Commission Press Release IP/13/563, 19 June 2013, available athttp://europa.eu/rapid/press-release_IP-13-563_en.htm?locale=en.  It should be recalled, in this regard, that, according to Article 27 of the TRIPS (WTO) Agreement, “patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application“.
   [8]   See Ruling, at para. 20.
   [9]   See Ruling, at paras. 26; 35; 39; 42-43 and 47-48.
  [10]   See Ruling, at para. 26; 35; 39; 42-43; 47-48.
  [11]   See Danish Competition and Consumer Authority Press Release 1120-0289-0039/VIS/SEK, 28 January 2004 , available at: http://www.kfst.dk/Afgoerelsesdatabase/Konkurrenceomraadet/Styrelsesafgoerelser/2004/Undersoegelse-af-Lundbeck?tc=E538038EB1E04A96B9964BE4C0F85F46 (Only available in Danish)
  [12]   See Decision at paras. 610 ff.
  [13]   See Decision at paras. 647 ff.
  [14]   See Decision, at paras. 1306, 1349 and 1380.
  [15]   See Ruling, Operative part.
  [16]   See European Commission Press Release IP/13/1233, Commission fines Johnson & Johnson and Novartis € 16 million for delaying market entry of generic pain-killer fentanyl, 10 December 2013, available at: http://europa.eu/rapid/press-release_IP-13-1233_en.htm.
  [17]   See European Commission Press Release IP/14/799, 9 July 2014, Commission fines Servier and five generic companies for curbing entry of cheaper versions of cardiovascular medicine, available at: http://europa.eu/rapid/press-release_IP-14-799_en.htm.
  [18]   See Case T-147/00 Laboratoires Servier v Commission.
  [19]   See Case CE/9531-11 Paroxetine, 12 February 2016.  For a comment on the case see Ezrachi, A., EU Competition Law: An Analytical Guide to the Leading Cases, 5th Edition, Bloomsbury, 2016, 396
  [20]   See CMA Press Release of 3 March 2017, available at: https://www.gov.uk/government/news/cma-alleges-anti-competitive-agreements-for-hydrocortisone-tablets. See also Nathalie Ska, Philipp Werner, and Christian Paul, “Pay-for-delay Agreements: Why the EU Should Judge them by their Effects,  Oxford Journal of European Competition Law & Practice, 3 May 2017.
  [21]   See, European Commission, “7th Report on the Monitoring of Patent Settlements (period: January-December 2015)”, 13 December 2016, available at:  http://ec.europa.eu/competition/sectors/pharmaceuticals/inquiry/patent_settlements_report7_en.pdf
  [22]   See Ruling.  The General Court separately analysed each agreement.  See, inter alia, in relation to Lundbeck and Merck, para. 225; in relation to Lundbeck and Arrow, paras. 266-270, in relation to Lundbeck and Alpharma, para. 290 and, in relation to Lundbeck and Ranbaxy, para. 330.
  [23]   See Ruling, at para. 100.  See further Case T-360/90 E.ON Ruhrgas and E.ON v Commission, at para. 86.
  [24]   See Ruling, at para. 131.
  [25]   See Ruling, at para. 97.  See further Decision, at para. 635.
  [26]   See Ruling, at paras. 121.
  [27]   See Ruling, at paras. 97.
[28]   See Ruling, at para. 122.
  [29]   See David J. Teece and Edward F. Sherry, “On patent monopolies: An economic re-appraisal”, CPI Antitrust Chronicle April 2017, available at: https://www.competitionpolicyinternational.com/wp-content/uploads/2017/04/CPI-Teece-Sherry.pdf.
  [30]   See Ibañez Colomo, P., “GC Judgment in Case T-472/13, Lundbeck v Commission: on patents and Schrödinger’s cat”, at Chillin’ Competition, 13 September 2016, available athttps://chillingcompetition.com/2016/09/13/gc-judgment-in-case-t-47213-lundbeck-v-commission-on-patents-and-schrodingers-cat/.
  [31]   See Case 27/87 SPRL Louis Erauw-Jacquery v La Hesbignonne SC, of 19 April 1988.
  [32]   See Case 262/81 Coditel SA, Compagnie generale pour la diffusion de la television, and others v Cine-Vog Films SA and others, of 6 October 1982.
  [33]   See Case 35/83 BAT Cigaretten-Fabriken GmbH v Commission, of 30 January 1985.
  [34]   See Case 258/78 Nungesser v Commission, of 8 June 1982.
  [35]   See Ruling, at paragraph 335.
  [36]   See Rumsfeld, D., Known Unknown:  A Memoir, Sentinel, 2011.
  [37]   See Ruling, at para. 350.
  [38]   See Ruling, at paras. 451 ff, in particular, at paras. 458 and 460.
  [39]   See Ruling, at paras. 354; 355.
  [40]   See Federal Trade Commission v. Actavis, 570 US (2013).
  [41]   See Ruling, at paragraph 353.
  [42]   See Decision, at para. 640.
  [43]   See Ruling, at paras. 354; 383; 414.
  [44]   See Decision, at paras. 6; 788; 824; 874; 962; 1013; 1087.
  [45]   See Ruling, at paras. 354; 383; 410.
  [46]   See Ruling, at paras. 354; 383.
  [47]   See Decision para. 693.
  [48]   See Ruling, at para. 336.
[49]   See Ruling, at paras. 355; 360.
  [50]   See Federal Trade Commission v Actavis 570 US 2013.
  [51]   See Ruing, at para. 341.