legal


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Theresa May’s decision to formally trigger Britain’s Article 50 request to leave the EU in March 2017 has a huge unanswered question at its heart: Whether the request is
reversible before the two-year deadline elapses.

That sounds like a technicality. But it could change everything. If the UK can withdraw its request halfway through the Article 50 process, then this gives Britain some bargaining power in the Brexit negotiations: If we don’t get what we want, we can walk away or force the process to start over again.

But if Article 50 cannot be reversed then all the power lies with Brussels: The EU need not bother to negotiate at all — it could simply sit on its hands while the two-year clock runs down, ejecting Britain in a “hard Brexit.” An Article 50 trigger might be a trap, in other words, with only one way out.

The difference between the two positions is massive: If it is reversible, then the March trigger will start a genuine round of talks, the outcome of which is uncertain. The UK can argue to get the best deal possible.

If it is not reversible, then the March trigger is the same thing as leaving the EU.

Until recently, it had been assumed by many — including Business Insider — that an Article 50 request could be formally withdrawn any time before the two-year period ended. The House of Lords took legal advice on the issue in April 2016 and was told:

“It is absolutely clear that you cannot be forced to go through with it if you do not want to: for example, if there is a change of Government … Analysis of the text suggests that you are entitled to change your mind. … There is nothing in Article 50 formally to prevent a Member State from reversing its decision…”

That advice dovetails with the opinion of former director-general of the Council of the European Union’s Legal Service Jean-Claude Piris, who wrote in September that “Even after triggering Article 50 and notifying the EU of its intention to leave, there is no legal obstacle to the UK changing its mind, in accordance with its constitutional requirements.”

But the legal arguments in the “People’s Challenge” case heard today at the High Court raised the issue. It turns out there is no rule or precedent explicitly stating whether Article 50 is reversible or not. Barrister Jolyon Maugham has an informative blog post on the issue here. And the Financial Times’ David Allen Green outlines the issue similarly here.

It is not clear whether the judges’ ruling in the case will state a position on reversibility.

Maugham notes that the reversibility issue carries huge political consequences. The High Court case is mostly about whether Parliament should vote to formally trigger Article 50, or can the government do it on its own without a vote?

If the trigger is reversible, that would imply Parliament — or a new referendum — could vote to reverse the trigger. In other words, even if Prime Minister Theresa May did not seek approval from the House of Commons to trigger Article 50, the House could still cast a vote later, before the two-year period was up, yanking Britain out of the negotiations.

That holds up the tantalising possibility for Remainers that parliament may get more than one opportunity to block or delay Brexit.

In the more immediate future, Theresa May’s government needs to figure out whether Article 50 can be reversed before March arrives. Because if it is not reversible, then she will go into those talks with very few weapons indeed.

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I just read a ‘research essay’ purported to be a criticism of the NZ Court of Appeal decision in Jackson Mews.

So when I read, ‘criticism’ I expect to see original reasoning pertaining to the decision. Add in words like ‘misinterpretation’, ‘blurred reasoning’ and I am very interested.

Why?

Because for a student to have the gumption and balls in a ‘to be published’ critique of the Court of Appeal, well that’s worth reading.

Only it wasn’t. Put aside the spelling errors, grammatical errors and really strange sentence structures and assess the actual substantive work…and there is none.

This was not a critique. This was a summary of everyone else’s critiques. In addition, the ‘click bait’ of, ‘misinterpretation’ and ‘blurred reasoning’ was so hedged and watered down, that those words should never have appeared in the title of the essay in the first place.

Was this a total waste of time? No, as I am now aware of an issue that prior to reading, I was not aware of. So I have gained.

So how did I come by this essay from another student?

It was emailed to everyone by the lecturer. Presumably, this lecturer thought, or felt, that this piece of work was worthy of our reading.

The author, despite any criticisms of her work…is a babe.screen-shot-2016-09-13-at-5-20-00-am

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Global accounting firm PricewaterhouseCoopers is being sued for $5.5 billion (£4 billion) in a Florida court for failing to spot the fraud that led to the sixth largest banking collapse in US history.

Trustees for the Taylor Bean & Whitaker Mortgage Corporation, which went bankrupt in 2009, accused PwC of negligence in their audits of the bank’s parent company, Colonial Bank,according to a report by Courtroom View Network.

Colonial Bank also failed in 2009, costing the Federal Deposit Insurance Corporation more than $4 billion, according to a report by Bloomberg News.

Top executives of TBW faked loan data for seven years starting in 2002, sending information on mortgages that either did not exist or had already been pledged to other investors to Colonial, the parent bank. According to Bloomberg, Colonial had $1.5 billion in non-existent loans on its books by 2007, which helped drive the bank into the ground during the 2008 financial crisis. PwC gave clean audits between 2002 and 2008.

The TBW executives were jailed for the fraud, with former chairman Lee Farkas sentenced to 30 years in prison.

“Year after year, Pricewaterhouse didn’t do their job, they didn’t follow the rules and they failed to detect the fraud,” Steven Thomas, an attorney for the trustee, said in opening statements broadcast on CVN.

PwC argues that well-executed audits do not always catch fraudulent behaviour and that the firm was not the lead auditor for TBW.

Beth Tanis, lawyer for PwC, told the Financial Times: “As the professional audit standards make clear, even a properly designed and executed audit may not detect fraud, especially in instances when there is collusion, fabrication of documents, and the override of controls, as there was at Colonial Bank.”

The case started on August 9 and is expected to last six weeks.

Interesting.

The disclosure on this case will have been significant. Wading through all of the emails, documentation, contracts, etc will have taken a lot of time and effort.

$1.5 Billion is a pretty big number to miss if you are an auditor. Also, given that PwC would have been receiving substantial fees from the client, how hard were they really looking for fraud, especially given that they considered themselves not to be the lead auditor.

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On the heels of a dramatic post-second quarter earnings run-up in shares, reports of a federal criminal investigation into its past business dealings has Valeant Pharmaceuticals(NYSE:VRX) investors back on the defense again. The reports of investigations into the company’s use of Philidor (a specialty pharmacy it was closely tied to) aren’t new, but the number of investigations does appear to be increasing, and that adds uncertainty to a story that was already pretty uncertain.

Smoke and fire?

Valeant Pharmaceuticals isn’t hiding the various investigations into it from investors. In fact, the company’s recently filed quarterly 10-Q with the Securities and Exchange Commission discloses an unfortunately long list of investigations into its past, including these low-lights:

  • September 2015: The U.S. Department of Justice Civil Division’s investigation into violations of the False Claims Act arising from how Valeant unit Biovail Pharmaceuticals calculated and reported average manufacturer prices.
  • September 2015: The Department of Justice’s investigation into Bausch & Lomb agreements and payments with and to medical professionals related to two surgical products. Valeant reports, “The government has indicated that the subpoena was issued in connection with a criminal investigation into possible violations of Federal healthcare laws.”
  • October 2015: Investigations by the U.S. Attorney’s Office for the District of Massachusetts and the U.S. Attorney’s Office for the Southern District of New York involving patient assistance programs, including financial support provided to patients; its former relationship with Philidor and other pharmacies; accounting treatment for sales by specialty pharmacies; information provided to the Centers for Medicare and Medicaid Services; pricing (including discounts and rebates), marketing and distribution of products; Valeant’s compliance program; and employee compensation.
  • November 2015: A subpoena from the staff of the Los Angeles Regional Office of the SEC related to its investigation of Valeant, including requests for documents concerning the company’s former relationship with Philidor, its accounting practices and policies, its public disclosures, and other matters.
  • March 2016: An investigative demand from the State of North Carolina Department of Justice relating to Nitropress, Isuprel, and Cuprimine, including information regarding production, marketing, distribution, sale and pricing of, and patient assistance programs covering such products, as well as issues relating to the company’s pricing decisions for certain of its other products.
  • April 2016: A Request for Information from the Autorite des marches financiers (AMF) for documents concerning the work of Valeant’s ad hoc committee, which reviewed allegations regarding Valeant’s former relationship with Philidor, accounting practices and policies, and other matters.
  • April 2016: An investigation by the State of New Jersey Department of Law and Public Safety, Division of Consumer Affairs, Bureau of Securities regarding Valeant’s former relationship with Philidor, its accounting treatment for sales to Philidor, its financial reporting and public disclosures, and other matters.
  • May 2016: An investigation by the State of Texas of Bausch & Lomb’s various price reporting matters relating to the state’s Medicaid program and the amounts the state paid in reimbursement for B&L products for the period from 1995 to the date of the civil investigative demand. In April 2016, the state sent B&L Inc. a demand letter claiming damages in the amount of $20 million.
  • May 2016: The California Department of Insurance investigation into Bausch & Lomb’s consulting agreements and financial arrangements between B&L and healthcare professionals in California.

That’s quite a list, and it shouldn’t go unnoticed by investors that four of the investigations disclosed in the 10-Q appear to have begun last quarter — or that many of these investigations relate to Philidor.

Valeant Pharmaceuticals stopped using Philidor to fill patient prescriptions last year amid scrutiny of the unique nature of their relationship. Philidor appeared on the surface to be an independent company from Valeant, but Valeant possessed an option to buy Philidor, and it paid sales milestones to Philidor, which makes Philidor’s actual independence — at a minimum — questionable.

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Valeant Under Criminal Investigation

Federal prosecutors probe whether drugmaker defrauded insurers by shrouding ties to mail-order pharmacy

Aug. 10, 2016 6:39 p.m. ET

Federal prosecutors are investigating whether Valeant Pharmaceuticals International Inc. defrauded insurers by shrouding its ties to a mail-order pharmacy that boosted sales of its drugs, people familiar with the matter said.

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Banksy’s ‘Art Buff’ was created on a leasehold property and subsequently removed by the tenant and taken to the US for sale.

The claimant, an arts charity called The Creative Foundation, took an assignment from the landlord of the title to the Banksy and the right to claim for its return, and brought proceedings against the tenant asserting ownership of the piece.

The claim was approached in terms of whether the landlord or the tenant had the better claim to the Banksy once removed, it being a valuable part of a leasehold property removed during the course of repairs by the tenant.

Surprisingly, there was no precedent for this but the court considered what relevant authority there was in deciding that the landlord had the better claim to ownership of Art Buff. By assignment, the Creative Foundation was therefore entitled to the return of Art Buff and is now arranging for the work to go on public display.

The case provides a useful precedent and is likely to be considered in other cases involving street art. However, had the Folkestone property been freehold, the freehold owner would have been entitled to remove the Banksy, and only Banksy himself would have been able to stop him by, for example, asserting his moral rights, which would have meant revealing his closely-guarded identity.

However, in another ownership dispute that hit the headlines in 2014 Banksy found a way to intervene while retaining his anonymity.

When ‘Mobile Lovers’ appeared on a doorway in Bristol the leader of nearby youth club took it away hoping to sell it to raise money for the club. Bristol City Council, however, argued that the work was theirs as it was on their land, and it was taken to a museum for safekeeping.

Banksy wrote to the club stating that he painted the piece as “a small visual gift for the area” and that while he does not usually admit to “committing criminal damage”, as “a great admirer of the work done at the club” it had his blessing “to do what you feel is right with the piece”.

After the signed note had been authenticated the club reportedly sold the piece and shared the proceeds with other voluntary youth clubs across Bristol.

It is clear from these two examples that the facts of each case will need to be considered to determine what act ion can be taken, if any.

With the increasing value of street art, more cases of this nature are likely to arise, which may help to provide further clarification on the ownership of street art.

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Led Zeppelin has been found not guilty of copyright infringement over the band’s song “Stairway to Heaven,” following a two-day jury deliberation in the case, Reuters reports.

The trust of deceased songwriter Randy Wolfe, otherwise known as Randy California from the band Spirit, was seeking “millions of dollars and a third of the songwriting credit” for the eight-minute Led Zeppelin anthem from 1971.

In the trial, the lawyer behind Wolfe’s estate accused the Zeppelin band members of “selective memories and convenient truths” in their testimony regarding their knowledge of the Spirit song in question, a 1968 instrumental song called “Taurus.”

In his closing statements, Led Zeppelin’s attorney, Peter Anderson, said the plaintiff failed to present adequate evidence for the copyright claims of the passage in question — which Anderson claimed to be “a common descending chord sequence in the public domain.”

Anderson also argued that the case should have been brought to trial when Wolfe was still alive and Plant and Page would have been better able to recall the song’s creation.

“How can you wait a half century and criticise people … 45 years later for the delay you caused?” Anderson said. “They should have sued in 1972.”

It looks as if it was decided on a Summary Judgment.

Even if it had gone to trial, it would have been unlikely to win.

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This article touches on one [of the many] legal tests to be applied for copyright.

 

“If we all call the tune,

The the piper will lead us to reason.”

from “Stairway to Heaven” by Led Zeppelin

The trial of Led Zeppelin for plagiarism is fascinating for all kinds of reasons. It’s a rare courtroom that offers an electronic piano or boasts Jimmy Page with a guitar. It’s not as rare as it ought to be for the money fight to be conducted by an estate rather than a living individual. If Randy Wolfe, founder of the band Spirit, minded that his music had been copied by Led Zeppelin, he could have brought the case years ago. Today’s plaintiffs have no moral argument or artistic principle at stake; all they stand to win now is cash.

What the case does highlight is how much music—and, by extension, how much intellectual property—is virtually identical. Turn on your radio at any time of the day or night and the auto-tuned vocalists are hard to distinguish. “Kim Kardashian, Heidi Montag, Michaele Salahi, Angelina Pivarnick and even the desperately unmusical Rebecca Black can pretend to have musical careers only because of AutoTune,” as I wrote in my book, A Bigger Prize: How We Can Do Better Than the Competition. “Singers like Ke$ha, Amelia Lily and Cheryl Cole don’t even try to differentiate themselves from each other.” They sound the same because they all use the same software that exists to ensure that they will sound the same.

This isn’t just the music business. How different, fundamentally, is your Samsung smartphone from your pricier iPhone? Buying a new car, are you stunned by choice or bored to tears by designs that have all been put through the same wind tunnels? Did X Factor copy America’s Got Talent or the other way around? Do the action movies that will pack cinemas this summer have any truly unique characteristics that will help you remember them—or will they all merge into one glorious CGI-infused noisy mess?

They sound the same because they all use the same software that exists to ensure that they will sound the same. This isn’t just the music business. How different, fundamentally, is your Samsung smartphone from your pricier iPhone?

Copying is all around us, from cereal boxes to detergent to software and car design. The filmmaker Kirby Ferguson figured this out well before Spirit’s estate did. His elegant and witty series (available on Vimeo) Everything’s a Mashup traced the heritage of a wide range of music, arguing that everything is really just a re-use or reimagining of something that went before. There is, he argues, really nothing you can call wildly original.

Adam Smith believed that one of the intrinsic virtues of free markets was that it motivated capitalists to keep creating new and better products for consumers. Competition is supposed to drive innovation and variety. What Smith didn’t see was that competition creates clones. Innovation is difficult, risky and requires a lot of intellectual, creative muscle. When imitation is easy, lazy and low risk, why create when you can copy?

Big pharma has taken this to heart. The world might need new antibiotics, but they’re hard to invent and harder still to make profitable. Copycat drugs are so much easier. Just make a tiny alteration and you’ve got a new patent for a market that’s already proven. Classical economists might expect that more drugs doing the same thing would bring prices down—but they don’t. Drugs described by the FDA as having “little or no therapeutic gain” enter the market at the same price as the old drug in the U.S.—and sometimes at twice the price in other markets. Studies of anti-arthritic pain relievers showed that more expensive clones were less effective and more dangerous. If you truly swear by market economics, innovation is for idiots.

So the question that the lawsuit should address (just as the FDA should): Did the maker—in this case Led Zeppelin—take something and make it better? A pretty standard A minor chord progression isn’t owned by anyone, and if Jimmy Page and his pals chose, remembered or subconsciously retained a chord progression they’d heard earlier, they’d be following in an ancient and hallowed tradition. Handel and Bach did it all the time too—but they made what they stole better.

Steve Jobs did the same thing when he lifted Xerox PARC’s user interface. T.S. Eliot did it when he packaged long quotes and called the result The Waste Land. Bob Dylan borrowed the melody for “Blowing in the Wind” from “No More Auction Block”—a spiritual he’d often sung himself. All of these men took something that was pretty good to begin with, but they radically improved it.

Somewhere between hearing “Taurus” and writing “Stairway to Heaven,” Led Zeppelin did something fresh. That something turned an average chord progression into a megahit. Sure any idiot can copy—but true artists transform. If only the A&R guys, the R&D guys, the product development guys would remember that part. The hard part. Choose well. But then add magic.

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MSD are going to appeal my Employment Authority case. So, I’m off to the Employment Court on this case also.

By the time this makes it to court, I’ll likely have graduated and be involved in my Bar exams [professionals] or, even, qualified.

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The determination from my case on 21,22,23 March is in. I win.

I’ll have to wait the 28 days to see whether Chief Executive appeals the decision, but for the moment at least, both my client and I can exhale.

It was a 38 page determination from the Employment Authority and makes actually quite good reading, well, I would think so wouldn’t I.

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