The Supreme Court of Canada has ruled that Wal-Mart Canada Corp. violated Quebec’s labour laws when it shut a store in Jonquière almost a decade ago, just after its employees organized a union.Facts of the case and lower court decisions
Wal-Mart opened a store in Jonquière, Quebec, in 2001, and three years later the workers formed a local of the United Food and Commercial Workers (UFCW) union. In August 2004, the Commission des relations du travail certified UFCW Local 503 as the bargaining agent for the 190 employees.
Wal-Mart and the union met several times to negotiate the terms of a first collective agreement. However, these meetings were unsuccessful and on February 2, 2005, the union applied to the Minister of Labour to appoint an arbitrator to settle the dispute that remained between the parties. One week later, Wal-Mart informed the Minister of Employment and Social Solidarity that it intended to close the store “for business reasons.” On April 29, 2005, the store was closed and 200 employees were terminated and out of work.
The union and the employees believed that the decision to close was based on anti-union considerations, and they brought a series of proceedings against Wal-Mart.
The union launched a grievance alleging that the dismissal of the employees constituted a change in their conditions of employment that violated section 59 of the Labour Code. Under that provision, employers are not allowed to change their employees’ conditions of employment without the written consent of the certified union while a collective agreement is being negotiated. This obligation begins as soon as there is a petition for certification.
The arbitrator decided that Wal-Mart had not proved its decision to dismiss was made in the ordinary course of its business, and therefore the termination of the employees’ contracts constituted a unilateral change that was prohibited by section 59 of the Code.
This decision was upheld by the Superior Court, but. However, it was overturned by the Court of Appeal. In fact, the Court of Appeal found that section 59 did not apply in this case. Moreover, Wal-Mart won most of the additional court challenges, including a 2009 decision that said the employees had used the wrong labour law provisions to fight the company’s actions.
And then the case made it to the Supreme Court of Canada.Supreme Court of Canada decision
The Supreme Court had to determine whether section 59 of the Code applies in situations involving the complete and permanent closure of a business. Only if so, would it be necessary to determine whether the closure of Wal-Mart’s Jonquière store constituted a change in conditions of employment contrary to section 59 of the Code.
Wal-Mart had argued that the closing was for business reasons, not because it was trying to break the union. But the Supreme Court agreed with the arbitrator that a reasonable employer would not close this establishment, which was performing well and was even promising to pay bonuses to employees.
The Court concluded:
The Supreme Court found that, in this case, the arbitrator’s award was one of the possible, acceptable outcomes which were defensible in respect of the facts and law. It confirmed that the arbitrator was right to decide that Wal-Mart was not able to show that the closure was made in the ordinary course of the company’s business. It was reasonable to find that a reasonable employer would not close an establishment in this case. The Jonquière Wal-Mart store was experiencing no financial hardship whatsoever. It was reasonable to find that closing the store and thereby terminating the employees’ contracts was a change in the conditions of employment that violated section 59 of the Code.
Interestingly, justices Rothstein and Wagner JJ dissented, arguing that section 59 of the Code does not apply in situations involving the complete and permanent closure of a business:
This case was a long time coming—almost 10 years after the closure. Legal counsel for the union stated the following about the message that was sent to employers who are tempted to close their business to avoid dealing with unions:
Therefore, the appeal was allowed and sent back to the arbitrator to determine the appropriate remedy.Conclusion
The main lesson in this case is that it is never a good idea for employers to try and avoid dealing with a union by closing their business. It will be very obvious if the announcement of a business closure takes place right after a union comes into a workplace and the employer must negotiate with the union (as in this case). Freedom of association is a fundamental right!
There are provisions in labour relations legislation that require employers to keep the status quo regarding working conditions during the negotiation of a collective agreement. These provisions exist in order to limit any influence the employer might have on the process, ease employees’ concerns and facilitate the development of the future labour relations framework for the business.
Unions can prove an employer violated this provision by showing that there was a unilateral change made to the conditions of employment. Unless the changes are consistent with the employer’s normal management policy (consistent with past management practices or something a reasonable employer would genuinely have done in the same circumstances), the employer could be on the hook.
It will be interesting to see what kind of remedy the arbitrator awards. As can be seen from this case, labour arbitrators have broad remedial powers and significant discretion.
In the Globe and Mail, David Doorey, a professor of labour and employment law at York University in Toronto, said the Supreme Court made it very clear that that Wal-Mart’s mass termination of employees and closing of the store was not “normal” business operations, and this could have broader implications across the country.
Still, Prof Doorey said, the decision won’t likely have a substantial impact on labour organizing, because “our laws have long prohibited an employer from closing and firing its work force to avoid a union.” At the end of the day, “the Quebec employees have still lost their jobs for exercising their legal rights to join a union. [The Supreme Court decision] is a victory for those workers, but a small one,” he said.
In 1978 China abandoned a planned economy that the government thought could facilitate productive forces and would guarantee fairness. Li Yining, a professor of economics at Peking University stated that China was wrong on both counts. See How China’s Leaders Think (2010), by Robert L. Kuhn, page 98.
Professor Li states “After several decades under the planned economy, the facts tell us that enterprises and people are not motivated – and without motivation, productive forces cannot develop. Under the planned economy, there is no competition, no equal opportunities, and no freedom to relocate. ….. After the Cultural Revolution, China’s economy was on the brink of destruction. At that point, the Chinese people had to choose a new system. And they chose the market economy”.
In 1998, Shao Ning, Director General of the Department of Enterprise Reform in China referred to a negative of a planned economy as “lack of motivation on the part of people at all levels. In a centrally planned economy nobody’s personal interests are served by implementing the plans, so it’s very difficult to motivate people”. See page 256 of Robert Kuhn’s book.
In 1758, the economist Adam Smith in his book The Wealth of Nations referred to the principle of self interest or motivation at page 236 where he states “But the principle which prompts to save, is the desire of bettering our condition; a desire which, though generally calm and dispassionate, comes with us from the womb, and never leaves us till we go in the grave. ….. An augmentation of fortune is the means by which the greater part of men propose and wish to better their condition”.
In 1861 at Cincinnati, Ohio, President Abraham Lincoln said, “Mr. Chairman, I hold that while man exists, it is his duty to improve not only his own condition, but to assist in ameliorating mankind”.
How is the market economy (and the pursuit of self interest) protected in China’s one party communist state?
The answer lies in the China’s new social contract described at page 196 of Kuhn’s book. He states: “The Chinese people now live, work and dress as they like, choose more or less whatever entertainment appeals to them, and discuss whatever they like, even criticizing the government – so long as they do it privately. ….. The one proviso is that they do not challenge the primacy of the Communist Party, or form organizations that could become sources of alternative, independent political power”.
The benefits of a market economy in China have created wealth that has allowed the Chinese government to initiate many social programs that have generally elevated the standard of living of the Chinese people.
The above suggests that a person’s interest in a better human condition may be a universal characteristic of mankind.
My blog posts have been fairly serious, dealing with issues we face as information professionals at a time of constant change, ranging from exciting digital futures to confronting publishers to saving endangered species (ie, books). However, even librarians and lawyers need to have some time out.
As I have spent a lot of time on planes this year, I thought I would go through some of the ‘must take’ podcasts I listen to on the long flight home. Listening live via the internet is marvellous, but sometimes when there is no wifi, this is just impractical – in the sky, on a beach, out on walks –and podcasts are just made for these moments. As the northern summer break is nigh, you might find there are worthwhile options to help you chill out.
Because I live in the UK and happily pay my licence fee to support it, I have decided to list some of the great resources provided by the BBC, and to explain why you might like to explore these. The BBC provides the most amazing range of resources, free of charge and accessible world wide, with podcasts of programmes, readings of novels, plays, etc. Unfortunately TV programmes on the IPlayer are regionally restricted (as are those of every country, sadly..) but most radio programmes are not.
Podcasts can be downloaded directly from the site, but you can also occasionally find links from the radio programme sites themselves to the podcasts, eg Desert Island Discs mentioned below. Some genres, such as readings, are only available for listening, not downloading, so I will not dwell on them.
If you have ever wanted to hear a more private side of famous people, Desert Island Discs is worth investigating. The format is tried and true – 8 favourite pieces of music to sustain you when marooned on an island. But the personal revelations that accompany the choices make this a really interesting choice. Since 1942 there have been over 1500 castaways, including the most amazing people from Grace Kelly, David Attenborough, Peter Ustinov, Lord Denning, through to Margaret Thatcher.
In our time with Melvyn Bragg explores the history of ideas, with topics as diverse as Chivalry, the Medici, James Joyce Ulysses, Cultural Rights – the format is a discussion between 2 or 3 leading experts in the field bouncing ideas and information between each other. Talk about life-long learning – this is as good as any MOOC!
Being professional for a moment, I should also mention Law in Action, with Joshua Rozenberg – a range of great titles like Bringing Bankers to Book, legal issues behind the Wikileaks story, and Are Drones Legal.
Science is wonderfully represented with programmes like The Infinite Monkey Cage among many others.
The Food section of the podcasts has some recipes, but under the list of chefs at the online site, one finds the most remarkable listing of recipes, with a search facility provided – from Nigella through to Heston, and my own fishy hero, Rick Stein, some of the best have worked with the BBC.
On a holiday we often like to have a good laugh, and the Comedy selection is another one to explore.
The point of this is that we are surrounded by some of the best broadcasting in the world, much of it broadcast when we are at work, or in another country, and podcasts are a solution as great educational resources, useful diversions in web-free locations, or a serious time waster for rainy weekends…
 There are VPN proxy add-ons services such as Hola which can be used for borderless access, or professional apps such as and IPVanish
Learning continues long after college ends. What if being enrolled in college was also a lifelong condition?
That is how Christian Terwiesch, a professor at the University of Pennsylvania’s Wharton School, thinks graduate business programs might work in the future.
He and a colleague, Karl T. Ulrich, vice dean of innovation at Wharton, have published a paper on how the ascent of short video lectures—the kind popularized by massive open online courses and Khan Academy—might change the cost and structure of top business programs like Wharton’s. The short answer is that they probably won’t, at least not anytime soon.
But in an interview with The Chronicle, Mr. Terwiesch ventured a guess as to how Wharton might change further down the line. The business school eventually might have to provide chunks of its curriculum on demand over a student’s whole career, he said, rather than during a two-year stretch at the beginning.
The idea makes at least some sense. Students come to Wharton to learn skills, but they also come to meet people and become part of an exclusive club of future power brokers. A two-year immersion makes sense for making friends, but when it comes to learning skills, it does not always make sense to serve the whole meal upfront.
“A long time can elapse between learning a chunk of knowledge and applying it,” write the two professors. They compare a Wharton degree to a Swiss Army knife: “You buy it today to use one day, but you know neither when you will use it nor which part of the knife you will use first.” More often than not, they say, students experience graduate school and its benefits in this order: “learn-learn-learn-certify-wait-wait-wait-deploy.”
Buying the whole knife upfront made sense when taking courses required students to move to Philadelphia. But the professors, who are among those at Wharton who have been experimenting with MOOCs, are increasingly convinced that online courses can be sufficient to teach specific skills to capable, invested students.
What might Wharton look like in 2035? Mr. Terwiesch agreed to speculate: Students accepted to Wharton would still take part in an immersive program right away. But instead of two years, it would last 10 months—long enough to make friends, participate in experiential parts of the program, and become members of the club. They would pay a fee for the immersion, but not the balance of their tuition.
After that, students would graduate into the work force, but they would stay enrolled at Wharton on a subscription basis. One day, a Wharton subscriber working in investment banking might get put on a team that oversees mergers and acquisitions. Instead of aching to recall the lessons she learned back in business school (and later forgot), she takes an online “minicourse” from Wharton. “The new pattern becomes learn-certify-deploy, learn-certify-deploy,” the professors write in their paper.
Flexible, online business programs aimed at working professionals already exist, but they tend to be oriented to a fairly prompt, definitive graduation date. Mr. Terwiesch’s idea of an exclusive graduate school that enrolls students over the course of their whole careers is a spitball, to be sure, but it may prove to be a sticky one.
Here is a description of the group, from the group’s Website:
Citizens, technologists and public officials working together to transform state & local lawmaking for the 21st Century
The Free Law Founders is a nation-wide, collaborative effort open to all people who want to improve how laws and legislation are produced and presented to citizens of American states and cities. Our goal is to modernize how democracy works in the United States from the ground up. To get there, we’re creating open source tools and open data formats government workers need to get their jobs done efficiently, effectively and accountably. And we’re building digital democracy platforms so citizens can finally access legislative information online in user-friendly, interactive formats that make sense. And we’re making all of our work available on the Internet for any community to reuse at no cost. [...]
The founding members of the group include:
The group has opened a project called the Free Law Founders’ Challenge:
You can join the Free Law Founder Challenge: to create a one-stop shop site for legislatures to be more open transparent and tech-savvy before the year is out.
At their keynote speech “Hack The Law” at the MIT Media Lab Legal Hackathon online conference in June 2014, New York City Council Member Ben Kallos and San Francisco Supervisor Mark Farrell called on a nation of civic hackers to create a free and open source democracy platform for legislatures by next year.
The site will have five free and open source tools for:
For more details, please see the group’s Website.
Xiaomeng Zhang, J.D., M.S.I., M.A., of the University of Michigan has published Public Access to Primary Legal Information in China: Challenges and Opportunities, Legal Information Management, 14, 132-142 (2014).
Here is the abstract:
Despite a lack of a national legislation that mandates open government information in the People’s Republic of China, each major government branch has taken proactive efforts to make primary legal information issued within their power available to the public. A close examination of Chinese official legal information portals on the national level reveal issues such as a lack of uniformity and a lack of access to authenticated primary legal information. This article [...] proposes a solution that would not only offer more consistent guidelines for the government but would empower the public to assert their right to primary legal information more powerfully and effectively.
Open edX is an open source initiative where developers and educational institutions around the globe work together to create an extensible online learning platform to bring quality education to “anyone, anywhere, anytime.”
via IBM DeveloperWorks: Build an online learning platform with Open edX on SoftLayer.
Just in case you feel the need to get your MOOC on.
GlusterFS is an open source distributed file system which provides easy replication over multiple storage nodes. Gluster File System is a distributed filesystem allowing you to create a single volume of storage which spans multiple disks, multiple machines and even multiple data centres.
This seems like a good replacement for NFS, which has some issues.
Have you ever used an app – whether on a phone, tablet, or desktop, and found them lacking?
Developers creating app versions of existing desktop software or online services face a dilemma. Apps are generally slimmed down versions of the original as they need to be used on touch interfaces, and the code needs to be smaller.
So app developers need to decide what features are important, how the app might be used differently in that context, and what can be left out. Even though desktop software is often bloated with features that are rarely used, deciding what to leave out is not easy. With computer code, similar to drafting contracts, simple is good but not easy. Sometimes things are left off that are missed by some users or that drive users nuts because they spend so much time trying to figure out how to do something that is missing.
I recently found, for example, that the Windows metro Dropbox app won’t let you select more than 1 file at a time to download. That’s a real pain if you are trying to download a couple hundred photos. I’ve also noticed that the OneDrive app doesn’t let you access OneDrive databases other than the one linked to that computer. And seen weather apps with reduced information.
This is a factor that makes some people lean towards HTML5 websites vs apps.
We’ve all had experience with vexatious employees (not to mention vexatious colleagues) but we employment and labour lawyers often deal with vexatious litigants who happen to be former or current employees. I’ve personally had experience with employees filing similar claims for similar incidents before the Human Rights Tribunal, Superior Court, the Workers’ Compensation Board and the Employment Standards Office. These claims can often by filed for free or minimal charge to the employee but generate huge cost for employers. Additonally, employees (particularly those who are self-represented) often file multiple pointless motions with each of those forums.
Thankfully, as chronicled here, the Court of Appeal of Nova Scotia finally had enough with one such litigant. In Liu v. Atlantic Composites Ltd., 2014 NSCA 58, what originally should have been a simple workers’ comp claim spun out of control and cost with the employee claiming damages exceeding FIVE HUNDRED MILLION DOLLARS against a raft of people for purported violations of the Criminal Code, the Constitution and the Fisheries Act (just kidding on the last one). Justice Saunders summarized the Appelant’s conduct as follows:
 Even if either appeal had merit, I would order that they be dismissed on the basis that each is vexatious and an abuse of process (CPR 90.44(1)(a)) and also because the appellant failed to perfect the appeals (CPR 90.44(1)(b)) after being given every opportunity to do so. By his conduct, Mr. Liu has demonstrated a flagrant and repeated unwillingness to abide by the orders of this Court. This includes a clear pattern of behaviour in not satisfying filing deadlines or directions with respect to content; not honouring costs orders; making entirely unfounded, abusive and contemptuous allegations against staff, lawyers and judges; finally culminating in his refusal to participate in proceedings he himself had initiated.
Clearly, Mr. Liu is an extreme example of a vexatious litigator and former employee. However, this case is a good example for how far people can go and how courts can assist clamping down on this kind of conduct.
It happened again yesterday in the CBA Futures Twitterchat – the term “non-lawyer” once again reared its ugly head. Granted, it was a Twitter chat with 140 character limits but even so, there must better ways to describe the vast majority of the population who are not licensed to practice law.
I’ve written here previously on my views of this term; since then, I’ve only become more deeply entrenched in my point of view, to the point where use of the term now grinds in my ears like fingernails on a chalkboard. (Incidentally, does anyone under 30 even know what that sounds like?)
Our society is not neatly divided into those who are lawyers and those who are not. The term, as used yesterday, was in the context of a conversation on how lawyers can learn to “play nicely” with other professions and professionals. I’m confident that trying to do so while clinging to such a dichotomous worldview is unlikely to bring about the desired benefits either to lawyers or those they represent.
There was a suggestion from @RightBrainLaw that how lawyers view themselves is part of the problem in getting lawyers to collaborate:
— Right Brain Law (@rightbrainlaw) July 15, 2014
This is also the problem with the dualistic view of the world as lawyers and “non-lawyers” – it’s ripe with the odour of superiority over those who are not lawyers. As every lawyer knows, the words we choose and use matter. Choosing a label that defines others by what or who they are not, carries with it the implication that a lesser value is placed on those who are “not.” Who among us wants to be known for who what or who we are not? (For the record, in addition to being a non-engineer, I’m also a non-brain surgeon as well as a non-astronaut.)
The culture shift that will enable lawyers to collaborate and work effectively with other professions must begin with the understanding that not only are we not the smartest in the room, we’re also not the most creative or the most innovative and certainly not the most cost effective.
Nonetheless, lawyers have great skill in advocacy, expertise in drafting and negotiation and more to offer those seeking to prevent or address legal problems. Where those problems have dimensions broader than pure legal issues, we must be able to relate as equals to professionals from other fields who can assist us and those we represent. If we are careful in choosing our words and the labels we apply to those we work with and for, we will find that we can begin to build bridges instead of trenches.
As part of the Canadian Competition Bureau’s revisions to its IP Enforcement Guidelines, some stakeholders have requested guidance on “new” issues of concern in the Competition Law area – including reverse payment patent settlement agreements. Prior to publication of the first Draft Update of the Guidelines (“Phase 1 Update”), the Bureau held a Workshop to consider issues regarding competition and the pharmaceutical industry. Having regard to the high cost of pharmaceuticals ($34.5 billion in 2013), and the recent decisions of the US Supreme Court and European Commission finding that reverse payments are “valid targets for antitrust scrutiny”, the Bureau sought input “from all sides relating to the enforcement and policy stance the Bureau should take on issues specific to the pharmaceutical sector”.
Recognizing that there may be “certain strategies and practices employed by pharmaceutical firms that may have the effect of diminishing competition between branded and generic pharmaceuticals”, the Bureau stated an intention to ensure “effective competition” from generics.
Of course, as is evident from the decision of the US Supreme Court in FTC v Actavis , many would agree that “effective competition” is desirable. The ultimate challenge for regulators, courts and parties alike is how to conduct an effective balancing to come to a reasonable/sensible solution that attains both IP and competition objectives, and provides some certainty to encourage agreements that are anti-trust compliant. This is easier said than done. Parties often propose fundamentally different approaches to attain the same apparent objective. As companies continue to craft more innovative settlements, it is expected Competition Law will continue to play “catch up”.
Recent Developments in US and Europe
In June 2013 the US Supreme Court applied the traditional “rule of reason” approach to reverse patent payments. In declining to accept the FTC’s position that such agreements were presumptively anticompetitive, during oral submissions the court indicated it was worried about “creating an administrative monster”. At the same time the court refused to adopt Actavis’ position that once there was patented technology involved, such agreements were within the proper exercise of patent rights, just like a patentee profiting from a licensing agreement. Actavis indicated the focus must be on the strength of the patent, and parties should be free to, and encouraged to, obtain a business result beyond merely earlier generic entry. Actavis stressed there is no requirement to litigate Hatch Waxman to completion, and that for the past 10 years the “scope of patent” rule had worked well, with many drugs going generic.
In its decision, the 5-3 majority adopted “five considerations” to be applied to reverse payment agreements that evaluate the anticompetitive harm with and without the agreement, and direct that simply because “a large, unjustified reverse payment risks anti-trust liability [this] does not prevent litigating parties from settling their lawsuits” for example by allowing generic entry in the market before patent expiry without a payment to stay out. A strong dissent by the Chief Justice clearly disagreed with the majority’s balancing of IP and competition law, and found that in fact the majority’s decision would result in a chilling effect on generic challenges:
“The majority today departs from the settled approach separating patent and antitrust law, weakens the protections afforded to innovators by patents, frustrates the public policy in favor of settling, and likely undermines the very policy it seeks to promote by forcing generics who step into the litigation ring to do so without the prospect of cash settlements. I would keep things as they were and not subject basic questions of patent law to an unbounded inquiry under antitrust law, with its treble damages and famously burdensome discovery…”
Shortly after FTC v Actavis, the European Commission (“EC”) concluded its 2010 competition inquiry into Lundbeck’s activities relating to restrictive business practices and abuse of dominant position. For the first time the EC imposed substantial fines against the brand name Lundbeck (over $US 100 million) and 4 generic manufacturers (totalling over $US 65 million) for entering into a reverse payment agreement regarding the “blockbuster” antidepressant citalopram. The agreement terms included: millions of Euros would be paid to the generics not to enter the market, generic product was to be purchased and destroyed, and guaranteed profits were paid out to the generics in a distribution agreement. There was no guarantee of any market entry thereafter – the generics were to stay out of the market for the agreement’s duration. The EC found these agreements were unacceptable because this was more than simply paying off generics to stay out of the market – the agreement delayed entry of cheaper medicines. (In the case before it one generic had already entered the market prior to the reverse payment agreement – perhaps making this an extreme/rare example). The EC may be viewed as taking an even stricter approach than the US Supreme Court, considering the Vice-President’s widely quoted warning that:
“It is unacceptable that a company pays off its competitors to stay out of its market and delay the entry of cheaper medicines. Agreements of this type directly harm patients and national health systems, which are already under tight budgetary constraints. The Commission will not tolerate such anticompetitive practices”.
The EC has other pending investigations into “practices that could delay entry of cheaper medicines”.
Intellectual Property Enforcement Guidelines – Phase 1 (done) and Phase 2 (to come?)
As noted in the Highlights of the 2013 Workshop, the Bureau’s amendments to its 2000 Intellectual Property Enforcement Guidelines (“IPEGs”) consist of 2 possible phases.
Phase 1 – the Phase 1 Update was to deal with any legislative changes. Stakeholders were requested to provide input on the changes made, as well as what other new issues should be addressed in the Update.
Phase 2 – “After careful consideration, the Bureau may release another draft update of the IPEGs for further public consultation as part of phase two, or it may decide to finalize the IPEGs according to the changes it made in phase one.”
Other “new issues” discussed at the Workshop included:
(1) pay for delay settlements – “when a patentee agrees to a value transfer to a generic manufacturer to settle a legal proceeding that the patentee itself initiated. If the parties had not settled, a court may have issued a legal judgment, allowing for the possibility of generic entry on the grounds that the patent was invalid or uninfringed.” The Bureau characterized diverging views as follows: are these agreements a “lawful application of the exclusionary powers granted by a patent”, OR do these agreements simply “pay potential generic competitors not to enter the marketplace, thereby lessening competition”?
(2) “life cycle management strategies” to maximize the value of pharmaceutical patents. Certain tactics like “product hopping” were of “special concern”.
The IPEGs are designed to “articulate how the Bureau approaches the interface between competition policy and IP rights”. The general provisions of the Competition Act apply to conduct involving more than the mere exercise of an IP right; only the special remedy under s. 32 applies to the mere exercise of an IP right.
An Analytical Framework is provided which (1) requires that the market be defined with reference to the IP; (2) lists a number of factors to consider in determining whether there has been an increase in market power; and (3) considers if any substantial lessening of competition is offset by efficiencies or business justifications. Several “Hypothetical Examples” are given that apply the framework.
Following its June 2, 2014 deadline for Phase 1 input, the Bureau has posted submissions from (1) the Canadian Bar Association (“CBA”), (2) the American Bar Association (Antitrust Section) (“ABA”), and (3) Canada’s Research-Based Pharmaceutical Companies (“Rx&D”).
As the Phase 1 Update was meant to deal with administrative changes/legislative updates, the Bureau provided no specific explanation/guidance as to what changes were being made and why. However two notable amendments appear to involve substantive changes:
(1) The removal of “non-use” as a mere exercise of IP. As noted by Rx&D, there is no obligation in the Patent Act to work an invention (subject only to s. 65). The Competition Act (s. 79(5)) specifically says that exercising an IP right is not anti-competitive. If this deletion was meant to deal with patent trolls, the CBA suggested the issue be addressed in Phase 2.
(2) The removal of any analysis regarding the strength of the infringement claim in the Hypothetical Example regarding patent pooling. In this Example two competitors agree to put their patents on a medical process in a patent pool, including one competitor who has a basic patent; and thereafter set a minimal fee for each customer use. The Bureau’s analysis concludes there is conspiracy (s. 45) as the pooling is unnecessary and anticompetitive because an alternative licensing arrangement between the two competitors could have been used.
Understandably there was forceful input on this Example given that parties agreeing to pool and set a price may evoke similar principles as in the case of reverse payment agreements. The CBA stated that the discussion of the merits of the infringement claim should be added back in, and that this Example could deter pro-competitive conduct and that more guidance was required as to how s. 90.1 would apply, as s.45 was not applicable given this was not “naked price fixing”. In addition, the Bureau should explicitly acknowledge that this Example does NOT apply to reverse payment agreements. Rx&D argued that applying s. 45, where there is no detailed inquiry/weighing of anti-competitive and pro-competitive effects, was contrary to the rule of reason discussion in Actavis v FTC. Notably the ABA agreed with the Bureau’s analysis but sought further review given that s. 45 sanctions were normally reserved for “naked restraints” where the pool is a sham.
Only the CBA and ABA suggested “New” issues that should be addressed in a further update:
- reverse payment settlements – including whether criminal [ie. s. 45] or civil [ie. s. 79 or 90.1 or even s. 32] challenges would be applicable, whether non cash settlements would be covered, and whether US principles from FTC v Actavis would be relevant
- life cycle management strategies
- patent assertion entities (trolls) – in the US there is debate whether Anti-trust laws are applicable, or whether these issues are better dealt with using consumer protection measures to ensure infringement claims are bona fide
- standard essential patents
On the same day as the Phase 1 Update was published, a Memorandum of Understanding was signed between the Competition Bureau and CIPO, supporting greater interaction in theory. Whether this will translate into any substantive practical consequences to general procedures, policies/legislative changes etc remains to be seen. Interestingly, there is no reference to CIPO input in the Phase 1 Update. The three stakeholder submissions also do not refer to this Memorandum of Understanding and its potential impact on how/if the Bureau should draft guidelines on issues particularly affecting competition/IP law in the pharmaceutical sector.
 Highlights of “Competition Bureau Workshop on Antitrust Issues in the Pharmaceutical Sector” held November 2013, released April 29, 2014: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03728.html
 The majority opinion introduced the issue as follows: “Company A sues Company B for patent infringement. The two companies settle under terms that require (1) Company B, the claimed infringer, not to produce the patented product until the patent’s term expires, and (2) Company A, the patentee, to pay B many millions of dollars. Because the settlement requires the patentee to pay the alleged infringer, rather than the other way around, this kind of settlement agreement is often called a “reverse payment” settlement agreement. And the basic question here is whether such an agreement can sometimes unreasonably diminish competition in violation of the antitrust laws.”
 Refer to an earlier review of a Bureau case involving Alcon: “A Rare Example Perhaps of “More than Mere Exercise of Patent Rights” – a Recent Competition Bureau Inquiry Into Pharmaceutical “Product Hopping”, dated March 14, 2013 at http://www.slaw.ca/2013/03/14/a-rare-example-perhaps-of-more-than-mere-exercise-of-patent-rights-a-recent-competition-bureau-inquiry-into-pharmaceutical-product-hopping/. This inquiry was recently discontinued after the Bureau found generic entry was not delayed given the short disruption in the brand’s first product: “competitive dynamics in the market appear to have been restored”. http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03736.html. In its May 13, 2014 Statement, the Bureau stated that “product life-cycle management strategies in the pharmaceutical sector are not inherently anti-competitive …However, life-cycle management strategies that are designed to impede competition from generic drug companies, such as product switching strategies, may cause significant harm to competition.”
What is it about summer that makes us so nostalgic? I spend a lot of time between June and September wishing I was hanging out with friends or family in Saskatchewan, even though I have a perfectly nice life in Vancouver. I’ll respond positively to almost any marketing message reminding me of long, carefree days when my only concern was how to sneak another piece of Saskatoon berry pie without my mother noticing.
Nostalgia has a special place in marketing and public relations. It appeals to our need for safety and security. It helps us feel connected to each other. And it reinforces our identity.
How could you appeal to nostalgia when promoting your practice? We love to talk about “our ability to resolve complex problems” and “robust technological solutions”. These messages have their place. But sometimes clients just want to know how you’re going to simplify their lives. Here are some ideas:
1. Call an old friend from law school to ask how they’re doing. No agenda, no sales pitch, just a friendly hello. It would be so much more pleasant to receive a phone call or voice mail than a generic LinkedIn connection request.
2. With permission, post some old firm photos on your website or on Twitter using the hashtag #ThrowbackThursday. People will appreciate the self-deprecation.
3. Take care of your clients worries. Rather than ask them to make time for you in their schedule, give them their time back. Send them to a baseball game with their family. Create a local tourism guide with passes that you can give to them if they’re hosting visitors. Hire a student to mow their lawn or a professional organizer to work with them one afternoon and clear out clutter.
4. Create a community of ‘insiders’. Do you know two transplants from the same area who moved to your city or town? Introduce them to each other. Heritage is an essential component of branding; show people that you understand who they are (without making a lot of assumptions) and that you have some empathy.
5. Make the old original. You could publish a blog series sharing lessons that some of your senior lawyers have learned along the way or write an article that chronicles how far the firm has come since it was founded. If you can, tie those lessons to aspirations for future success.
If you doubt how powerful nostalgia can be, spend a moment looking at the simple selfie that Nebraska teenager Tom White took on July 13th. It instantly became one of the most shared photos this year. Why? It’s perfect. Not only because two of the most famous people in the world are in the background, but also because of the nostalgic scene. A warm summer evening. Cars are angle-parked on a quiet street. A happy teenager. Two old friends relaxing on a bench after eating their ice cream cones. All is good.
Not all clients are created equal. Great clients will enhance your legal skills, your reputation, and your bottom line. Bad clients can make you question your skills, destroy your reputation, and result in the worst money you have ever made.
Once you have a better understanding of how bad clients can wreck your practice, you will get better at spotting them and avoiding them. And it will be the best money you never made.Money is Money, Right?
Bad clients have an amazing way of sapping time and energy in ways you cannot bill for. You probably cannot bill a client extra for meeting only in the evenings or on the weekends. You definitely cannot bill a client extra because you have a personality conflict.
Even if you could bill for scheduling issues, you cannot bill for stress. You cannot bill for screaming when you get off the phone. You cannot bill for not sleeping well. You cannot bill for spending an hour talking about why you already wrote off a third of your time and why your bill is reasonable. Talk to any smart attorney and they will tell you that the total cost of a problem client does not add up in the long run.Bad Clients Can Crowd Out Good Clients
Bad clients are like a virus that spreads throughout your practice. They make you icky and grumpy while you marathon-watch Arrested Development all day in bed.
Bad clients can cause you to turn down good clients for two reasons:
Let’s go back to the virus metaphor. When was the last time you started to get sick and magically woke up feeling better the next day? It’s pretty rare. Same thing with bad clients. They usually become much worse before they get better. And when I say better, I mean the case ends or you fire them.
You are doing yourself a disservice if you tell yourself “it can only get better” or “it has to get better from here.” Sure, you can cross your fingers and hope they suddenly start responding to phone calls or emails. Maybe the first three appointments they missed truly were emergencies (although I doubt it).
Hopefully your retainer has a provision for these scenarios. Hopefully you are not afraid to invoke it and terminate your representation. I am not suggesting you become cut-throat and cut loose every client that is five minutes late to a meeting. But if they no-show, or are two hours late, that is a serious red flag — and a giant flashing sign that there will be more trouble down the road.The Warning Signs Are Usually Clear
Now that you understand all money is not created equal, you can sharpen your intake skills to avoid bad clients. Over the past five years I have talked to thousands of potential clients. Without fail, the most important thing I have learned is to trust my gut.
Someone might call with what sounds like the greatest case in the world, but something makes me question the case or the client. Whether it’s during the first meeting, the second meeting, or right before the case implodes, my gut is almost always right. I used to fight it and talk myself into taking cases. Not anymore. If my gut says no, then I say no.
If you are not ready to live and die by your gut, here are some other warning signs that trouble could be brewing down the road:
That is not an exhaustive list by any means. Those are just some of the red alerts I have encountered. As noted above, if your gut says something is not right, something is probably amiss. That is the perfect opportunity to bounce the case off another attorney and get some feedback. But never try and convince yourself that any client is a good client. It’s not that simple.
Featured image: “employee gets punched through a smart phone on the face by an angry caller” from Shutterstock
I love Evernote and I use it every day, but I am uncomfortable with the idea of using it for client data.
The other day on the Macs in Law Offices (MILO) group, someone said they were exploring using Evernote to manage client files. I responded that I do not think it is a good idea. Here are my two reasons:
In response, Rocket Matter‘s Larry Port reached out to Evernote’s head of security for a response.Encryption at Rest
Here is what Evernote’s security chief had to say about encryption at rest:
We are not encrypting data at rest unless you manually encrypt selected text inside a note (http://evernote.com/contact/support/kb/#!/article/23480996). Encryption at rest is an answer to a different question depending on who you talk to. Some people want us to encrypt their data on the client to protect against data loss when their phone is stolen. Some want us to use it to protect against a server being stolen. One of the main reasons a service provider looks at encryption as a control is to protect against unauthorized physical access. Because we operate our own infrastructure in our own physically secure data center cage, we’ve mitigated much of that risk. We haven’t dismissed implementing encryption at rest and will continue to consider it when looking at ways to protect Evernote users’ data.
Our computing infrastructure is physically located inside dedicated cages in multiple data centers. We rely on those data centers to manage physical access controls and each one has a third party auditor attest to their ability to do so securely.
Here’s what I glean from that. Evernote has its servers in third-party data centers, where they are protected by a cage like this one. It sounds like the data center has the key to the cage and the responsibility for ensuring that only authorized people can get through the gate. Third-party auditors have attested to each data center’s physical access controls.
This requires a lot of trust in procedures and the willingness of third-party server admins to comply with those procedures.
However, if Evernote encrypted the data on those servers, it would still have all those physical access controls in place, but encryption would render the data on the servers pretty much useless to anyone who did get unauthorized access to them. With data encrypted at rest, you don’t have to worry as much about who might have physical access to Evernote’s servers, or how Evernote disposes of old hard drives.
To be fair, Evernote does let you encrypt portions of your notes. Just highlight what you want to encrypt, right-click, and select Encrypt Selected Text…. This works fine for one thing at a time, but it is obviously impractical for securing your notes in bulk.
To put this in context, cloud storage providers like Dropbox mostly encrypt data at rest. This makes Dropbox objectively more secure than Evernote, yet many are still debating whether Dropbox is secure enough to store sensitive data. With Dropbox, the concern is mostly that Dropbox keeps the encryption key, which means some Dropbox employees could decrypt your data. There are fewer people to trust than with Evernote and its third-party data centers, but there are still some people you have to trust, in addition to any spy agencies who might take an interest in your clients or scoop up your data on a whim.
If you aren’t comfortable storing sensitive information in Dropbox without an extra layer of encryption, you definitely won’t want to use Evernote. Even if you are comfortable storing sensitive information in Dropbox, you might not want to do it in Evernote.Playing Fast and Loose with Data
Is Evernote “playing fast and loose with the data entrusted to it,” as Kincaid alleges? That may be overstating it, but I don’t think Evernote is living up to the spirit of its “Your Data Is Protected” promise. Reading that statement, Evernote seems to see the issue as one of privacy, not security.
Evernote’s actual security practices don’t seem to reflect the concerns of a company that makes security a top priority. I don’t think there is a sensible argument that it is somehow more secure not to encrypt data at rest. It is just more convenient (and probably cheaper) for Evernote.
It also refused to implement two-factor authentication because it would be inconvenient. Evernote finally implemented two-factor authentication only after it was hacked.
The useless security page doesn’t help, either. Evernote could certainly tell users more about its security practices without compromising security. Saying nothing feels evasive, as if Evernote isn’t comfortable telling users what it is doing to protect their data.
Adding it up, I don’t come away with the impression that the security of users’ data is a top priority at Evernote. While Evernote is obviously not ignoring security entirely, I don’t think it is taking it all that seriously. So I do not store sensitive information in Evernote. Instead, I use it for stuff like lists of books I want to read, cases or law-review articles I want to hold onto, cocktail recipes, pictures of restaurants’ take-out menus, and CLE notes. I would like to use it for things like receipts and deposit slips and notes on client meetings, but I just don’t think they would be well-enough protected.
It is certainly possible I have gotten the wrong impression by reading the wrong things into Evernote’s statements and drawing the wrong conclusions from a few errors and omissions. You might very well have read the above and come to the opposite conclusion. If you do, I would be interested in reading your thoughts in the comments.Securing Evernote
If you do decide to store client data or other sensitive information in Evernote, definitely follow the security chief’s advice, at a minimum:
We recommend that you enable 2-step verification to protect your account from hackers that may try to guess your password or phish you for it. Because your data also lives on the devices you sync it to, we recommend you make use of the security features available on your devices to protect it.
Also, make a habit of selectively encrypting any especially-sensitive information within your notes by using the Encrypt Selected Text… option. (This does not seem to work with images and attachments, however.)
Why does PDFy exist? I got sick of documents getting locked up behind login walls of services like Scribd. PDFy exists to offer a place where anybody can instantly upload and share a PDF, much like Imgur does for images. PDFy is free, ad-free, and non-commercial.
If you’re interested in running your own the code is on Github at https://github.com/joepie91/pdfy.