Disputes in Perspective

In this follow-up episode, we explore how Europe is reacting to the Supreme Court’s landmark decision in Learning Resources, Inc. v. Trump, which invalidated tariffs imposed under the International Emergency Economic Powers Act (IEEPA). Philippe Heeren, International Trade and National Security partner in Brussels, and Justin Angotti, International Trade and National Security associate in Washington, D.C., discuss the implications for EU–U.S. trade relations, the potential impact on ongoing trade agreement negotiations, and practical strategies for businesses navigating this period of uncertainty. Please note that this podcast was recorded on Tuesday 3rd March, prior to the news of a threatened Spanish trade embargo. The tariff landscape is rapidly evolving, and some comments may already be outdated, please refer to our Trump 2.0 tariff tracker for the latest tariff information.

Adam Massaro sits down with Dr. Brett Donnelly, entrepreneur and clinical psychologist, to explore what litigators can learn about leadership and decision-making in high-stakes environments. From managing risk and navigating partnerships to staying connected with your team and leveraging feedback, Brett shares actionable insights to thrive as a litigator and leader.

The U.S. Supreme Court's 6-3 decision in Learning Resources, Inc. v. Trump invalidated IEEPA tariffs but left unresolved the critical question of importer refunds. President Trump also almost immediately announced a replacement tariff regime. In this episode, Michael Lowell, chair of the firm’s Global Regulatory Enforcement Group, and Justin Angotti, International Trade and National Security associate, discuss what may happen now that the Supreme Court opinions are out, including alternative tariff authorities that remain available to the administration and practical steps importers can take to preserve potential refund rights. Visit tradecomplianceresourcehub.com to view our tariff tracker.

In Part 2 of their conversation, Adam Massaro and Bennie Fowler, Director of Strategic Development at The Caprock Group and former NFL wide receiver, move past preparation to examine performance under real-world conditions, focusing on how to respond when mistakes happen and plans fall apart. The lessons translate beyond professional sports, offering practical takeaways for lawyers and other high-pressure professionals navigating constant change.

Adam Massaro talks with Bennie Fowler, Director of Strategic Development at The Caprock Group and a former NFL wide receiver, about how visualization, preparation, and managing pressure helped him succeed on the field—and how those same strategies translate to a high-stakes legal practice and other demanding professional environments.

Adam Massaro sits down with renowned appellate lawyer Jim Martin to unpack the toughest questions in appellate work – from identifying true reversible error to challenging problematic rulings without alienating the court, and selecting the handful of issues that truly matter on appeal. Drawing on decades of experience, Jim shares insights on navigating trial-court dynamics and building records that can actually win on appeal.

Adam Massaro is joined by fellow Denver partner Brendan Leanos to discuss the firm’s debt finance practice, offering insights from both lender and borrower perspectives. They explore private equity deals, intercreditor arrangements, and the rise of private credit, along with AI’s impact on legal work, strategies for structuring complex financings, and the growth of Reed Smith’s Denver office.

Adam Massaro hosts Global Commercial Disputes partner Joyce Williams to discuss how rhythm, trust, and preparation – core to her equestrian roots – translate seamlessly into her approach to litigation. Joyce reflects on building strong trial themes, guiding witnesses with authenticity, and navigating her path to partnership.

Adam Massaro sits down with Tyler Thompson, a partner in Reed Smith’s Emerging Technologies Group, to discuss how data privacy and artificial intelligence are reshaping the legal landscape. Tyler shares how he built a practice around emerging tech before it took off – and offers insights on how companies can stay ahead of rapid regulatory changes.

Adam Massaro interviews global finance partner Chris Hand to explore his work in debt financing transactions and the emerging world of crypto. Chris discusses how he approaches securitizing digital assets, navigating multi-jurisdictional loans, structuring control agreements, and protecting lender interests. Chris also shares insights from his path to partnership and how he balances the demands of high-level transactional practice with life outside the office. ----more---- Transcript: Intro: Welcome to Disputes in Perspective, a Reed Smith podcast. This podcast series will discuss disputes-related trends, hot topics, and developments occurring in the global legal landscape, and hopefully provide you with some helpful insights and practical tips. If you have any questions about any of the episodes, please feel free to contact our speakers.  Adam: Welcome back to the podcast. I've got with me Chris Hand, a partner in the Denver office of Reed Smith, and I am Adam Massaro, also a partner in the newly founded Denver office. Chris, welcome to the pod.  Chris: Thanks, Adam. I'm glad to be here.  Adam: So how long have you been at Reed Smith?  Chris: I joined the firm in February of 2025. We really hit the ground running over here. We were able to bring over quite a few clients in some existing matters. So I really jumped right in with some of our existing Denver clients and then started integrating with some of our Chicago and New York team as well. So it's been only a few months so far, but a really good start.  Adam: What practice group are you in? So I'm in the corporate practice group. Really, I'm a transactional attorney, but I specialize in debt financing transactions.  Adam: And debt financing. Give us the listeners a little more information about that.  Chris: Yeah, it feels like a pretty broad term. You know, more specifically, my practice, I represent capital providers. So that could be large national banks. It could be regional banks, private credit funds or just other private investors. When those capital providers are making secured loans to certain partners. So the debt financing transaction is anytime you have a lender making a loan to another party, that party's going to pay back the loan with interest. And if they fail to pay it back, there's going to be some assets that are acting as collateral security for that loan. That's where I step in.  Adam: You mentioned that you came over with a team. Who else did you come over with to help found the Denver office?  Chris: Yeah, I came over with a really strong team who I've worked with for a while. Jay Spader, specifically, he's the head of the debt financing group here in Denver. Brendon Leanos, another debt financing partner I've worked with for about 18 months now. And Jason Larkin on our team as well, who I've worked with for nearly five years at this point. We all came over together. We each have a practice that is all within the debt financing realm, but a little bit different. And each one of us has a slightly different specialty.  Adam: What's your focus?  Chris: So me specifically, like I said, I represent capital providers, but I think my work really fits into two main buckets. The first would be large, broadly syndicated loan transactions that provide working capital to existing, well-established companies. So just to unpack that a little bit, syndicated loan transaction is typically when you have one large bank acting as an agent that puts together the deal. And then that bank goes out and finds other lenders that want to participate. paid. They come in with a commitment and they all join together to provide some portion of the debt financing to a borrower. I work on those facilities. They usually, like I said, provide working capital, so help a company manage their day-to-day cash needs. And then the other large bucket is acquisition financing. So I'll represent a lot of borrowers, but also private equity sponsors and lenders. Anytime somebody's borrowing money to make an acquisition, typically in the middle market space.  Adam: On the syndications, as far as those, is there any specific industries you focus on or not?  Chris: You know, not really. I do have a subspecialty in precious metals lending. That's something that not many people in the U.S. do, but it's something that I've just been fortunate enough to pick up a few deals in that space. But otherwise, no, it's really no specific industry. I think it's more just specific deal size and then knowing how to run that process, knowing how to work with different banks to be able to pull together a deal like that on usually a tight timeline.  Adam: When it comes to the precious metals, what are some examples of the work you do in that area?  Chris: So we provide typically working capital facilities that come in the form of revolving lines of credit for companies that specialize in buying, selling, trading precious metals. And the way those facilities look is you usually have a revolving commitment that has a maximum amount that's going to be the lesser of some determined number. We'll just say for easy math, $10 million or some, what we call a borrowing base, which is going to be the aggregate value of some underlying precious metals assets. So if the borrower ends up acquiring $20 million in gold bullion, for example, then that borrower can borrow at any point in time up to the lesser of the value of that gold bullion or the maximum amount that the banks can provide. So I've done quite a few of those facilities, they range from very simple, like I just explained, to endlessly complex if they bring in a lot of other ancillary products, forward contracts, swaps, things like that.  Adam: On the precious metals, is that limited just to domestic or can that involve domestic or precious metals outside the U.S. as well?  Chris: Good question. Most of the borrowers that I work with, or I should really say all of the borrowers that I work with, are domestic, but they do have international operations. So a deal that's currently on my desk that's looking to close at the end of this month, it's a U.S.-based borrower, but they do maintain metals all over the world. And so, you know, fortunately here at Reed Smith, and it was one of the reasons that I made the move over to Reed Smith, I'm able to partner with colleagues that we have in Germany, Hong Kong, Singapore, and the UK to put in place local security documents to perfect the bank's security interest in precious metals that are maintained in vault facilities in each of those countries. I can do that all under the Reed Smith umbrella. It ends up making the transaction much smoother. So borrowers are usually domestic, but they have international operations and we can help with that.  Adam: All right, let's talk about acquisition financing. Tell us a little bit about your experiences and specialties there.  Chris: So I typically work in middle market leverage buyout transactions. So what that means is we typically have a private equity firm involved that's going to be a private investor that's looking to acquire a company that's in the middle market space. That can mean a lot of things to different people. I usually think of it as overall deal value of maybe $50 million to $500 million, but people can define middle market differently. In those transactions, I'll either represent a lender that's making a loan for the private equity company to be able to acquire another business, or I'll represent the private equity borrower when they're borrowing funds from a bank in order to make that acquisition. The way most private equity firms buy different companies is really similar to the way typical people would buy a house. You pay for the purchase price using some portion of your own money that's going to be your down payment or your equity in the house at the time you close. And then you borrow the remainder from some lender in an exchange for that money that you're borrowing, you're going to pay it back with interest and you're going to grant a security interest in the asset that you're buying. The leveraged buyouts work really similarly.  Adam: And for the acquisition financing, as far as footprint, domestic or do you go outside the U.S. as well for that?  Chris: You know, really all domestic for those. I think it's more the larger syndicated facilities where I see some foreign operations. Just typically, this is not universal, but in those larger syndicated deals that are more working capital facilities, we're looking at companies that are fairly well-established. Maybe they're publicly traded. So they're further along in their life cycle. They've gone past their initial maybe venture funding. Maybe they had a round or two with different private equity investors to help them grow. And now they've gotten to a point where they're publicly traded, larger, maybe have global operations at that point. Just happens to be that in my private equity acquisition financing practice, we're usually talking about companies that are a little earlier in the stages of their life cycle. They're taking on new investment for private equity. They might look to grow internationally, but that's not usually the norm in my practice.  Adam: Now when it comes to securing assets on the acquisition financing with some of the examples of asset classes you've worked with?  Chris: Oh, goodness. We've been all over the place. I would say, you know, most typically, it's going to be a senior secured loan that's secured by all assets. And what comes up most often is going to be a pledge of equity in the holding company and in all of the operating companies that are being acquired. And that's really important for a secured lender because really the smoothest exit in a downside scenario for a secured lender is to go out and find another private investor who just wants to purchase the entire enterprise. And so if you can just take the equity and lift it and sell it to somebody else, that's go

Adam Massaro meets with real estate partner Camille Bacon-Schulte to explore the legal challenges behind billion-dollar data center developments – from land acquisition and utilities to financing, leases, and risk mitigation. They also discuss the founding of Reed Smith’s Denver office, the importance of firm culture, and how to balance a demanding national practice with life outside the office. ----more---- Transcript: Intro: Welcome to Disputes in Perspective, a Reed Smith podcast. This podcast series will discuss disputes-related trends, hot topics, and developments occurring in the global legal landscape, and hopefully provide you with some helpful insights and practical tips. If you have any questions about any of the episodes, please feel free to contact our speakers.  Adam: Welcome back to the podcast. I'm Adam Massaro in the Denver office, and I have a special guest joining me. Camille, please introduce yourself.  Camille: Hey, I'm Camille Bacon-Schulte, and I'm also a partner in the Denver office with Adam.  Adam: And we are both founding partners at the Reed Smith office in Denver, and both had a chance to join early this year. Camille, how's it going so far?  Camille: It's been going great. Yeah, it's a great group we put together in Denver. The rest of the firm has been really welcoming. It's been a really seamless transition.  Adam: You were in private practice before this, right? Yeah.  Camille: Yeah, I've only ever been in private practice.  Adam: All right. And had you had a chance to form or found an office before this one?  Camille: No. And actually, the fact that it was a, you know, found an office opportunity is really sort of what drew me in in the first place. I think that's really special. It's a, you know, a great opportunity you don't get very often.  Adam: What is your practice area?  Camille: Real estate. Really broad real estate. A little bit of everything.  Adam: And within that, then, have you always done real estate or have you done any other type of corporate work as well?  Camille: You know, I started in environmental, and it was just a little too litigious for me. It was a lot of fighting with the EPA, and that didn't sit right. And then I just sort of fell in love with real estate along the way. And I just love how collaborative it is.  Adam: When you heard about an office being founded by Reed Smith, what were some of your expectations going into it?  Camille: Well, it's an office founding, and it's the first time Reed Smith has been in Denver. So, you know, I think I had the same expectations that all of the rest of us partners had, which was that we really need to hit the ground running and make a name for ourselves in the community and sort of build up a presence and a reputation. So that was sort of the expectation of my role going in, just leading with the best foot forward and building the right teams for the right clients.  Adam: Now, I know you've lived in some interesting spots over the years while still maintaining private practice.  Camille: What are some of the spots that you've lived in over the years? I started practicing in San Diego, moved back to Denver briefly, and then spent five years working remotely from a little village in Alaska, right outside Glacier Bay National Park. Middle of nowhere. True Bush, Alaska. You've got a boat or fly in. We get all of our electricity from a waterfall. Um, so that was, that was interesting. Um, and, uh, you know, I've, I've closed deals running my wifi on a generator because we've had a power outage through the whole town. Uh, not that I've ever told anybody that, um, but it can be interesting, but it's, it's totally doable. I think remote work, um, in the real estate practice is, is it goes well together.  Adam: You know, it's funny you say that I was just on vacation and we obviously did have some things for an expedited filing we had to do, we were en route from the mainland to an island. And so I was able to use Wi-Fi there. I got to the island. And then later on in the day, there was even a pocket where I found a little spot to get out a few things. So it's interesting to sort of see both finding those spots and being creative at the same time. But I think there's a way to balance too. It's just a matter of figuring it out as well. And if you're committed to, I think you can do it.  Camille: Yeah, absolutely. You know, it's interesting, too, especially with sort of broader remote work, because I do think on some levels, you know, practice is tough. And it's especially if you've been in there over a decade, it definitely takes its toll. So I think some of the ability to maintain is to have that ability to be able to check out and be in those different spots. How have you used things outside of work to balance the obviously the ongoing stress that is work as well?  Camille: Um, you mean like the dreaded work-life balance buzzword or just sort of like generally how you maintain an active practice in remote places?  Adam: Well, I think on the latter point, uh, in remote places, obviously some people, there's a concern, right? That, you know, you have to be with your, with the people and the decision makers in person. So on that point, you know, what, how do you, how do you make it work? Or how you make sure that you instill trust so that people feel like you can be accessible in that environment.  Camille: You know, I get in some ways where people are coming from when they have that concern, but in others, it doesn't resonate with me personally because my practice is so national. So even when I have practiced from an office and I have for about half of my career been in office. I wasn't often working with people physically in my office Even before the pandemic and before Zoom was so popular, you know, I was conference calling with people in, you know, Kansas City or, you know, Houston or somewhere in California. And so I was working across a lot of different offices within the same firm anyway. And so for my practice, at least, even if I'm physically in an office, I'm not usually working with someone who is, say, down the hall from me. So whether I'm in another office or I'm in Alaska or right now I'm in Steamboat Springs in Colorado, it's not really different. Maybe there's a greater distance between us, but we were never, you know, next door to each other. Um, and, and oftentimes our clients are really far away as well. You know, we'll have clients who are based out of New York and we're doing a portfolio acquisition, for example, of properties across the country. You know, even if I were physically in the Denver office, I wouldn't be, you know, face to face with that New York client on a day to day basis, um, anymore if I'm sitting there, if I'm sitting in Alaska. So to me, at least for my practice, I just have never felt like it's that different if I'm sitting in an office versus I'm somewhere remote because it's so national. But I will say I think that is a little bit different in our situation because we are starting an office and we're sort of building up our Denver firm culture. And so I do think right now it's more important to be in office at least a little bit just to get to know everybody and figure out, you know, how we can support each other's practices. So there is sort of that as well. But I'm definitely a proponent of remote work.  Adam: And then on the flip side, obviously, work-life balance. You know, in my view, it's a lifestyle. It's hard to just turn it off in that respect. And also if you want to do complex work, you know, just get to turn it off. That's the upside of all the complex work is that complex problems don't just solve themselves between nine to five. But at the same time, that can be grueling, especially a decade in or longer. So what do you do to balance those two things? Because those two worlds don't seem like they can be reconciled all the time.  Camille: Well, it's interesting. And I think that is one of the things that's harder when you're remote because your office is your home. And so you don't have that separation of going home at the end of the day. But also, a lot of my clients really expect me to be available to them, not 24-7 necessarily, but certainly if there's a question that comes up after hours. So, you know, whether I'm working from an office or working from home, I'm still checking my email, you know, after dinner. I think it's important, though, to set boundaries. Like people are going to respect your time as much as you respect your time. So I'm really careful to block off time to, you know, pick up my kids from school and have some time with them right afterwards and, you know, for dinners and bedtime and all of that. And I think you just have to really just be upfront with your colleagues and your clients that those times are family time and you're going to wear your mom hat during those hours. And if something requires your attention before the morning, you'll get back to it when you can. And just getting out. If you've got a break of 30 minutes and you know that your inbox is going to be silent, just get out. Take a walk. Don't be glued to your desk. But it's different for everybody and everybody's practice is different. So I think it's just important to find what works for you and just be really open with everybody so everyone has aligned expectations of when you're going to be available. Adam: We're in Colorado so what's your go-to winter sport.  Camille: Um well I'm still on the fence between snowboarding and skiing. I've been doing both which is good and bad they're really different and I'm not getting as good as quickly as I might if I just stuck to one, um but uh yeah one of the two um. And I'm in Steamboat Springs and then Howelsen's right across the way and they do this great program where you can just go ski for free on your lunch break if you're local um which is great because I can just pop out. It's five minutes, get a couple runs in, come back, l

In this episode, Reed Smith’s Niyati Ahuja sits down with Dr. Steffen Hindelang, professor of International Investment and Trade Law at Uppsala University in Sweden and executive director of the CELIS Institute. Together, they explore the growing global focus on foreign direct investment screening and why it has become a key element of policymaking in the EU and beyond. ----more---- Transcript: Intro: Welcome to Disputes in Perspective, a Reed Smith podcast. This podcast series will discuss disputes-related trends, hot topics, and developments occurring in the global legal landscape, and hopefully provide you with some helpful insights and practical tips. If you have any questions about any of the episodes, please feel free to contact our speakers.  Niyati: Welcome to Reed Smith's Disputes in Perspectives podcast. I'm Niyati Ahuja, senior associate in the New York office of Reed Smith. I work in the international arbitration and global commercial disputes group. I do both commercial and investor arbitration, as well as litigation in New York courts and white-collar investigation matters as well. Today, we are very pleased to welcome Dr. Steffen Hindelang to this podcast. Steffen is a professor of international investment and trade law at Uppsala University in Sweden. He's also the executive director of the CELIS Institute, an independent, non-profit, non-partisan research enterprise dedicated to promoting better regulation of foreign investment in the context of security, public order, and competitiveness. Steffen has advised the EU, European governments, as well as companies on investment tribute regimes, international investment disputes, and international organizations on the reform of the current international investment law regime. As you can tell, he has a very, very interesting background. He has been repeatedly invited by the European Parliament's INTA committee to prepare studies on the development of the EU's common commercial policy. He frequently acts as expert advisor before international tribunals and national courts and has served as an exit arbitrator. I also understand, Steffen, that you are organizing a very interesting boot camp in India next month in August on investment arbitration. I'd love to know more about that before we delve into the more serious topics we're going to discuss today about foreign direct investment screening. So I'd love to know more about this boot camp. Would you just share a few lines about that?  Steffen: Of course. First of all, thanks very much for having me. Delighted to be here and talk about two worlds which come together. And that's also the topic of the boot camp. We are jointly organizing with a leading Indian institution. The idea here is to explore crossroads of investment arbitration and economic security regulation. We are inviting students, public servants, attorneys which want to know more about this emerging topic and of course also issue how two worlds come together and possibly collide and how we can make that coalition as painless as possible.  Niyati: Yeah that sounds wonderful and is it in in Gujarat is that correct?  Steffen: Indeed that's in Gujarat It's going to be hot in a double sense. Temperature is going to be quite intense. But also the topic, I think, if I may say so, it's going to be quite hot. And we are at the forefront here, exploring how investment screening measures and others will trigger or may trigger investment arbitrations.  Niyati: Yeah, sounds very interesting. If you do want to, if anybody wants to know more about the boot camp, please do reach out to Dr. Steffen. Okay, now getting to the basics and the more serious topics, let's begin with the basics. What is foreign direct investment screening and why do you think it has become so central to policymaking in the EU and globally as well?  Steffen: I think originally, or let's say for the last 30 or 40 years, we have seen a hyper-globalization. The world has come or had come together very close. In many ways, the United States and China were basically also coming closer. The United States' only remaining superpower at some point may have felt a bit challenged by China and its practices, which the United States perceived as not fair. And more and more in the United States, but also in other areas and other places around the world, this open-door policy was questioned. And one basically started to think anew about foreign investment, not just seeing the undoubtedly positive effects on welfare and development, but also seeing the potential risks to national security, as the United States would put it, or to public order and security, as the Europeans term it. So what is it about? Investment screening essentially is a review of a foreign capital employment or deployment for risks to national security. So is it acceptable that, for example, an Indian company runs the rail networks in the United Kingdom? That's the question the investment screening authority has to answer. Does this pose a threat to the national security? In many other areas, you find that as well. It's not just infrastructure, it's also technology. Is it a threat to national security that certain chip companies are suddenly owned by Chinese? Or that German robotics companies are taken over by Chinese? That are the basic questions behind investment screening.  Niyati: That's very helpful for our listeners. My next question is actually related, and you mentioned invest infrastructure as well as technology sectors. So what kind of investments are typically subject to screening? Are there thresholds or sectoral focuses that listeners should be aware of?  Steffen: I mean, investment screening, there is not just one regime. Each and every state runs its own. And even in the European Union, there's very little harmonization on that. But I think we're going to talk about the EU's regime later. Each state decides for itself what are the sectors which are perceived as particularly sensitive in terms of national security or public order and security. And it relates, as said earlier, to critical infrastructure, telecommunication networks, harbors, ports. Airlines, rail, and so forth. Also, technology from chips over emerging technologies, artificial intelligence is another example. You come to social services, you have, for example, hospitals as an area of interest. Pharmaceutical companies are at the focus. But you have even, in certain countries, school cafeterias, which are perceived as a critical asset, which is screened when taken over by a foreigner. So I think there are very few sectors actually around the globe, which are completely free of any investment screen. Because on the one hand, each nation has its own sensitivities. And on the other, one must clearly say there's a trend towards screening broader and broader, which causes, of course, additional red tape for international capital transactions. Thresholds, again, you can't have a cross-the-border answer on that. It's really depending on what kind of economic policy that respective country wants to run. You see a trend that thresholds getting lower and lower. So in the old days, it was 25% typically when 25% of a share capital was acquired, then it triggered a review. These days, in particular sensitive areas, you have 5% thresholds. But again, there are other jurisdictions like Switzerland, which is very, very skeptical about investment screening, and they have a relatively high threshold. So it depends really very much on the policy priorities.  Niyati: Yeah, it seems like states are still exercising their sovereign powers over what kind of policy they want to develop relating to these foreign investments. My next question is related to, I think it's more specific in the way EU defines security and public order for the purposes of investment screening. Are these definitions, in your opinion, intentionally left to be broad?  Steffen: I think the European Union is a very particular animal in that respect because the European Union is something... In between an international organization and a federal state and the relationships between the, EU as the international organization, so to say, and its member states is highly complex. And you can't really have across the board an answer to that relationship, but you really have to look at the particular subject matter here, investment screening. This is largely an EU competence. So basically, for our audience in the United States, it would be a federal competence. However, interestingly here, you would expect that then the European Union runs its own unified regime. No, they delegated back the power to run investment screenings on the state level. So for the U.S. on the state level, and a language you would talk about member states level. And each and every member state, except for one, runs its screening mechanisms. And here as well, there are member states which have a long tradition in having investment screening mechanisms. for example, France, but also Germany has had an established screening mechanism, though a very narrow one. And then there are, for example, Sweden states, which thought they can do completely without. And of course, having different approaches requires for very open-ended terms. And public order and security, this is an open-ended legal concept, which is then further defined either by secondary legislation, that is the EU screening regulation, which provides some guidance, though it does not really restrict the member states. And then you have the court, the Court of Justice of the European Union, which in its case law, of course, has defined public order and security. However, again, it's case sensitive. So public order and security in pharmaceutical regulations means something very differently than here in investment screen.  Niyati: Yeah, no, that makes total sense. And I think it is also circumstantial, especially when it comes to courts issuing a ruling regarding what they would consid

Seasoned litigators Brad Funari and Adam Massaro unpack the unique dynamics of nonjury trials, as well as requests for equitable relief and evidentiary hearings held without jurors. Brad and Adam share practical strategies for witness preparation, streamlining trial logistics, and even how to read a judge’s demeanor mid-trial – illustrated through firsthand war stories gleaned from their trial experiences and hard-earned lessons in the courtroom. ----more---- Transcript:  Intro: Welcome to Disputes in Perspective, a Reed Smith podcast. This podcast series will discuss disputes-related trends, hot topics, and developments occurring in the global legal landscape, and hopefully provide you with some helpful insights and practical tips. If you have any questions about any of the episodes, please feel free to contact our speakers. Brad: Hello, and welcome back to the Reed Smith Disputes in Perspectives podcast. I'm Brad Funari, a litigation partner in the Global Commercial Disputes Group, resident here in Pittsburgh, Pennsylvania. With me is my new partner in our new office in Denver, Colorado, Adam Massaro. We're going to be talking today about a new topic. We're going to be talking about non-jury trials, requests for equitable relief, and evidentiary hearings where we don't have a box full of jurors. We're going to offer some practice pointers, some best practices, and probably tell a few war stories along the way. So without further ado, I'm going to turn it over to my new partner, Adam, who's going to introduce himself and his practice. Adam: Brad, I appreciate the introduction and allowing me to join today. Very excited. Today, actually, I believe marks right around the four-month anniversary from coming over to the new firm and helping to found the Denver office. We've been nice and busy, two trials already, and it's been really fitting well with, likewise, my national litigation practice, which seems to span states and spectrums across the way. So I'm looking forward to talking with you today. Brad: Great, great. Well, let's kick it off, Adam, and let's start with, I guess, kind of a threshold question, which is you as trial counsel often find yourself in a position where you may have a choice of whether you try the case to a jury or to a judge. When you are given that opportunity, and every case is different, obviously, what factors or what considerations do you give in advising a client about whether you go jury or non-jury? Adam: That's an interesting question. It's certainly something we raise in almost any case unless there's a clear jury waiver situation. Some of the things I think about, number one, are first, who are the main clients and how will they present in front of a jury? That's, to me, one of the biggest factors that I think about. The second factor, I do give some weight to subject matter. However, I've presented complex cases to jurors as well as complex cases to judges. And sometimes the jurors actually get it better, especially high-tech cases in that respect. So subject matter is less important. I think the individuals themselves, I will say if I'm looking at a case with a significant potential damage, that would also give me a real variable on both sides, especially as the plaintiff, I would likely then push towards a jury. Conversely, if I'm the defendant, my desire to be in front of a jury where I'm facing high damages exposure just is oftentimes too great of a risk to force the issue if the other side hasn't demanded a jury. How about you? What do you consider? Brad: Yeah, I think those are all good points. You know, I think credibility of witnesses, that's important. And maybe not even credibility, but just how a witness is going to come across. I know a lot of my cases involve high net worth individuals, very charged in emotional disputes over closely held businesses. Sometimes our witness, though as impassioned as they are, they don't really present well to a jury. So my experience, judges can kind of look beyond some of those factors and really kind of hone in on the story that the witness has to tell. I think the subject matter, you're absolutely right. What is a jury going to find interesting and what is a jury not going to find interesting. Subject matters, a lot of my practice, shareholder disputes, non-competes, those types of matters. We have a lot of the relief that we seek is equitable. So we're in front of a judge anyway. And from a cost perspective and from a scheduling perspective, oftentimes it just makes sense to schedule the entirety of the trial before a judge who can be sit both in a position to exercise its equitable powers, but also to make determinations, of facts and serve as the fact finder. Adam: You know, Brad, you raise questions about equitable pieces, and fairness is a huge fact, which we oftentimes more think about from a jury perspective, but from a judge, how do you sell the case and how do you present it when you do have to come to the court and seek equity? Brad: If I understand the question, Adam, I would say it's really no different than preparing for equity. For a presentation to a jury, going into a hearing, and we'll just use an injunction hearing, for example, in a non-compete case, the judge is going to be familiar with the legal standard that he or she needs to impose to afford our client the equitable relief or deny the equitable relief that's being sought against our client. So in terms of preparation, I go into cases like that, you know, assuming that the judge has some experience and has some knowledge and has been briefed on the applicable legal standard. I also like that in a proceeding like that, that especially when we're defending a case like that, that the judge isn't usually is not afraid to kind of impose herself or himself into the discussion. And recently here in state court in Pennsylvania, we were trying essentially an equitable case. It was a case to appoint a custodian to a closely held business. And in the judge, both kind of in our direct examinations, opposing counsel in my direct examination and on cross, the judge didn't hesitate to refocus the witness or to ask follow ups. I think judges are less comfortable doing that when there's a jury. So I think there's a certain efficiency that clients can take advantage of when we go in front of a judge and are trying something that doesn't involve a jury. So, Adam, we talked a little bit about the subject matter of cases that might afford themselves to a non-jury trial. Are there any cases that you can think of in recent history that you've been involved in or otherwise that, you know, really the subject matter is something that is best left to a judge? Adam: I certainly think that closely held partnership disputes oftentimes fit best with judges. There's normally a lot of history between the parties. They've often worked closely together, sometimes well, sometimes not well. There's going to be a lot of history. There's going to be a lot of knowledge of both good and bad facts by both sides. I think the judge does a nice job of deciphering what is noise and what they need to know. Whereas when you put those types of business divorce cases or closely held business cases in front of a jury, sometimes it's hard for the jury to understand what really matters and what is just sort of the ongoing bad blood between the parties. What are your thoughts? Brad: Right. I agree. Messy business divorces, cases where the theme of the case is rich people fighting over money or rich people problems, those types of subject matters, I prefer a judge. I mean, the judge oftentimes has been with the case for a little while, is familiar with the lawyers, the issues involved, the parties, which is often one of the challenges, you know, in these contentious business divorce type cases. They're emotionally charged, and I think the judge gets that. Adam, I want to switch gears a little bit and talk about preparing for a non-jury trial and an evidentiary proceeding. And be interested in hearing your thoughts on, is it simpler? Oftentimes the client asks the question, how can we streamline the case. Narrow the issues from a budgetary perspective? How can we make it a less expensive trial? Assuming those are all factors in play at the urging of the client, how do you prepare for a non-jury trial or an evidentiary proceeding differently than you would a jury trial, if you do at all? Adam: I certainly will emphasize a trial brief far more in a non-jury trial. Rarely do I need them in a jury trial unless it's maybe a discrete evidentiary issue or something I want to give the court a heads up. However, in a judge trial, I'll take a lot of time on the pre-trial brief. I will set the stage. I find judges actually read them in pre-trial mode on a bench trial. So that's certainly one area that it's worth putting the time in so that the judge knows what he's actually going to be deciding. And I'm not even afraid to make it pretty clear in the pretrial brief what I want the judge to rule on, what I want the judge to consider in those circumstances. So that's one way, I think, to streamline the process. The other thing, and I actually just did this recently in a case, was for experts, I had the judge propose and the parties agreed that both experts would tender their written reports as their direct examination. They got on the stand. They affirmed the reports, just said these are true and accurate. They capture our opinions. Judge read the report beforehand, and then the other side went and crossed right from the jump. I thought it was great. It was basically a proffer, but the judge knew what was going on. The other side jumped in for the cross, and then I was able to re-exam my own expert, and then we flipped and did the same way with the other side. But I thought it was excellent. It limited the amount of time, the extra spend on having the experts spend all this time developing their expertise. Both experts were

Tom Webley, partner in London, Steve Cooper, partner in New York, and Ranna Musa, senior associate in Dubai, explore the issues and complexities of cross border disputes. In this introductory session, they discuss the issues around discovery, enforcement and privilege and the different approaches of the England & Wales, New York and UAE legal systems. ----more---- Transcript: Intro: Welcome to Disputes in Perspective, a Reed Smith podcast. This podcast series will discuss disputes-related trends, hot topics, and developments occurring in the global legal landscape, and hopefully provide you with some helpful insights and practical tips. If you have any questions about any of the episodes, please feel free to contact our speakers.  Tom: Hello, and welcome back. This is another podcast in our Disputes in Perspective series. And today we're going to be looking at cross-border disputes, including a number of different jurisdictions. As you can all probably imagine, in a firm like Reed Smith, we've got 33 offices over a number of different countries, a sort of global footprint. So these are issues that we tend to see all of the time. It'll be unrealistic to get colleagues to join us from all offices, but we have managed to at least get a nice cross-section, I hope. My name's Tom Webley. I'm in the commercial disputes team in London. I'm delighted to be joined today by Ranna Musa, who's based in UAE, and Steve Cooper from New York. So two very different jurisdictions there. The scale of this topic is rather huge, to be honest. I mean, there's so many different issues that we see in litigation and arbitration involving a number of different jurisdictions, so we can't possibly cover them all in any detail today. What we're planning on doing in this podcast is more of an introduction, a sort of appetizer, if you like, just to flag some of the sort of issues which can arise, things that we see arising all of the time, with a view to then going into a much deeper dive into each of them in subsequent podcasts. So on that basis, I think to start off with, I mean, one issue that certainly tends to crop up quite a lot for us and something that we see which has international elements to it tends to be in relation to documentary discovery or disclosure. And Steve, as we've got you on the line with your U.S. perspective, I mean, I think it's fair to say that a lot of our clients over this side of the pond absolutely balk at the idea of getting involved in U.S. domestic litigation from the discovery point of view, the scale and the scope of it. But apart from that in relation to U.S.-specific disputes, do you ever see more international issues arising in relation to discovery? Yeah. Steve: Yes. Thanks, Tom. We see quite a bit of discovery from foreign disputes in the U.S., and there are a number of reasons for that. I mean, primarily, the U.S. is a notoriously wide-open, broad discovery forum. It permits a wide-ranging document discovery. It permits depositions, which is something that is not always available in other jurisdictions, that it is, of course, pre-trial testimony that is taken down by a court reporter. The whole thinking in the U.S. is to permit as much discovery as possible in order to avoid trials. Let each side know what the other side's information is, and hopefully. One, the case settles, or two, nobody is blindsided at trial. So as a result, we get a lot of requests in connection with foreign proceedings. Primarily, we see it in the 1782 context, that is 28 U.S.C. 1782, which is a very, very useful tool for foreign litigants that permits discovery in the U.S. in connection with foreign actions. We also see enforcement collection of judgment proceedings quite a bit because many defendants have assets in the US and also the discovery rules are quite favorable here when it comes to locating assets. And of course, we see a lot of issues involving the Hague Convention and the New York Convention on the Enforcement of Arbitration Awards, which we can discuss a little later or perhaps in a subsequent podcast. But the overarching idea is that the U.S. is a very ripe forum for discovery and very useful for foreign litigants. Tom: That's really interesting, Steve. I think one point that really sort of struck me on that was the idea that discovery hasn't just sort of created itself into this huge process over there, but that's almost deliberate. And actually, it is there to maybe reach the end goal a bit quicker. And not only for the solely U.S. disputes and litigation, but actually also for any party either looking to enforce or looking to support litigation in another jurisdiction. So that's very interesting. I mean, Ranna, I don't know about the position in the UAE. I mean, is it very different from that in the UAE? Ranna: Thank you very much, Tom. When we're talking about discovering the UAE, perhaps first of all, we should first explain the distinction between the different legal systems in the UAE itself. So in the UAE, we have two separate legal systems, the onshore legal system, which is based on the civil law. And then we have the offshore legal system, which is a common law system that exists both in the DIFC, i.e. The Dubai International Financial Center, and then the ADGM, which is the Abu Dhabi Global Market Courts. And then on the onshore legal system itself, we then have two layers. The first layer is the federal court system, which basically covers the jurisdiction of the Emirates of Fujairah, Umar Al-Qawain, and Ajman. And then we have the local court system, where the federal court system has no jurisdiction. And this system covers the Emirates of Abu Dhabi, Dubai, Ras al-Khaimah, and Sharjah. On the topic of discovery in the onshore courts or in the onshore legal system, and contrary to popular belief, the UAE law does permit parties to seek disclosure in ongoing proceedings. So long as, of course, the parties that are seeking disclosure demonstrate the document's relevance, comply with various requirements, and, of course, provide specific requests to the court. Then the court may order disclosure of the documents. In addition to that as well, the UAE has entered into various bilateral agreements with various countries, and some of those bilateral agreements do permit taking evidence in the UAE for ongoing proceedings in another jurisdiction. So this is another very interesting point. From an offshore court perspective, which is a common law system, I believe that really follows the general perspective or practice, rather, in the common law system. So, for example, in the DIFC courts, disclosure is expected, basically. Parties are to expect being required to disclose evidence either by the court's own discretion or if either of the parties do request such disclosure. And the same will then apply for the ADGM as well. Tom: That's absolutely fascinating. The difference between the onshore and the offshore then, even for something like disclosure, really is marked in that case. It's incredible to see varying degrees and scope and extent of the disclosure and discovery which might be required. It's certainly something that not only clients should consider if that jurisdiction is going to become relevant for anything they do. But I think it warrants a topic in its own right on one of the subsequent podcasts. So we may well be digging further into that later on. From an English perspective, I mean, one point, does arise quite a lot in relation to litigation involving either a number of jurisdictions or connected proceedings in a number of jurisdictions that I think is worth mentioning is what we call the collateral use restriction. This means that as part of the disclosure process over here, if a document is disclosed to a party, that party can only use it for the purpose of the English proceedings. That is a very strict procedural rule. You can't then take that document and go and try and use it elsewhere. If you wanted to do that, you would need to apply for the court and you can get permission from the court if you are able to show that in the precise circumstances of that particular matter, there was a real reason why it would be beneficial for you to use it. And that overrode the public interest in the idea that litigants deserve of privacy in the documents that they provide as part of the litigation. So it's really important because it's such a strict restriction that it's very easily breached, even, for example, discussing it with legal counsel in another jurisdiction, just to see if there is a claim that can be brought. So I think a lot of people fall foul of that. So that's certainly something that's worth bearing in mind as well. Really, really tough. And it is, as I say, very much a procedural rule. Moving on to a point I think you mentioned, Steve, actually, I mean, going on to enforcement. Probably, I think it's fair to say, but you both might disagree, one of the times that we see a sort of multi-jurisdictional cross-border element actually comes post-judgment. It's when a party's got either a judgment or an award that they need to enforce. Increasingly, I think, you know, parties and defendants against whom these things are being enforced have assets, all over the globe. And so that's when these issues really can arise. We've had issues in the past, I think, trying to enforce judgments in certain jurisdictions. One thing that your clients always need to bear in mind is they need to think from the outset exactly what sort of judgment they need to be able to enforce it where they need to enforce it. For example, we've had issues in the past where enforcing judgments in default or judgments which haven't been considered fully on the merits, that you haven't been able to enforce them in certain courts, in certain jurisdictions. And that's something that you obviously need to bear in mind before going out and getting those judgments, because then it won't be worth the paper that they're printed on

Niyati Ahuja sits down with Kasturi Venkatesh, currently senior consultant for ethics and compliance at WSP USA, to discuss the complexities of conflicts of interest in professional settings. This episode examines the distinctions between real, potential and apparent conflicts, and how these issues can impact organizational trust and integrity. Listeners will gain actionable strategies for navigating ethical dilemmas and mitigating risks with transparency and fairness. ----more---- Transcript: Intro: Welcome to Disputes in Perspective, a Reed Smith podcast. This podcast series will discuss disputes-related trends, hot topics, and developments occurring in the global legal landscape, and hopefully provide you with some helpful insights and practical tips. If you have any questions about any of the episodes, please feel free to contact our speakers.  Niyati: Welcome to Reed Smith's Disputes in Perspective podcast. I'm Niyati Ahuja, a senior associate in the Global Commercial Disputes and International Arbitration Group in New York. I'm dual-qualified in New York and India. My practice involves international arbitration, both commercial and investor state, litigation in New York courts, and some white-collar investigation. Today we have Kasturi Venkatesh with us. Kasturi is currently a senior consultant, ethics and compliance at WSB. Kasturi holds three degrees in law and has worked in compliance across different industries, including technology, civil engineering, immigration, and construction. She specializes in conflicts of interest, third-party risk management, and developing and implementing policies and procedures in-house. She also enjoys creating custom ethics and compliance programs for clients. Welcome, Kasturi. We're very pleased to have you here today.  Kasturi: Hi, Niyati. Thanks so much for inviting me to talk about conflicts. I want to start off by saying that all views are my own. They're not representative of my employer. And I'm doing this in my individual capacity. All examples are hypothetical. Thanks so much for having me again.  Niyati: Thanks, Kasturi. So getting right into it, please tell us more about your role and your background and how this area of law that is ethics and compliance interested you in the first place.  Kasturi: So this is really odd, but I knew I wanted to be a lawyer since eighth grade, right? And I was born in the US and mostly raised in India. And the education system there differs a lot from the US in the sense that you decide your path pretty much by 16, 17, 18. And you could specialize in science, math, or art. I chose science as it gave me the most options. But the back of my mind, I was like, oh, I know I want to do law. So end of 12th grade, my parents were like, what do you want to do? And I said, law. Right now, I hold three degrees in law, mostly focusing on business law. I was the teaching assistant for banking and finance law at a point, taught a few classes there. Now, my very first job out of my first law school was at a technology company. And I worked in the ethics and compliance department. Very green at that point. But the more I worked in it, the more I knew that this was something I could actually look at doing in the future, something really fun. I pivoted into immigration compliance after that, came back to ethics and compliance, and I truly enjoy it. It's like every day is a strategy or a logic puzzle. Where answers aren't black and white, you operate in a lot of gray in any company dealing with ethics and compliance. And there's always so much to learn in the field. I love interacting with people. There's a lot of that in the field. And a very strong community that wants to help.  Niyati: That is excellent. You've had a great career path so far, Kasturi. I'm sure it's going to only grow in the future. I wanted to, for our audience members, I wanted to ask a more basic question. Can you define what a conflict of interest is and explain why it's important for both individuals and organizations to recognize them?  Kasturi: Yeah, absolutely. So conflicts of interest and very broadly, let's say there are two interests and these could be multiple interests as well. that a single person holds, right? And one of them could be or is prejudicial to the other interest. Now, the interesting part is sometimes these interests may not necessarily be prejudicial or cause harm to the other interest. But when there is some aspect of a duty of care or a fiduciary duty to one interest. Holding both or multiple interests could appear conflicting. And because of this, identifying and mitigating these conflicts is so important. And of course, there are guidelines and disclosure requirements as well. But sometimes it's the liability repercussions. And when I talk about liability, I mean, financial, revenue-based reputation. It's a loss of time, loss of revenue, loss of reputation. And when we look at the term interest here, Niyati, so broadly defined, it could be a role that you hold, a financial interest, personal relationships, good or bad, right? Professional affiliations. And as human beings and individuals, sometimes conflicts occur because of the nature of our personal life. So let's say close personal relationships, including people you may have a terrible relationship with, which could be material depending on the circumstance. And some of these come about because of career progression, people you've worked with, financial interests, or even subject matter expertise, because that makes people want to be part of organizations or dialogues.  Niyati: How do you distinguish or one distinguishes between real potential and apparent conflicts of interest in everyday business situations?  Kasturi: So I'd love to go through hypotheticals to illustrate this. And some of the hypotheticals here might be just glaring conflicts of interest, but they illustrate it pretty well, I guess. So if you look at real conflicts of interest, let's say Jack and Jill, they're part of the same organization. They work for the same organization. Jill is in Jack's reporting line. Now, Jack supervises Jill at work, and he's the sole person responsible for Jill's performance evaluations and career progressions. This is a real conflict of interest and a very, very obvious one. Now, it's a very obvious example. This could be a conflict of interest in most, if not all industries, in all roles. Let's look at a potential conflict of interest. Let's say Jack owns 20% stock in company X. Jack works for a different company, and the company that employs Jack, they want to contract with company X. Now, this whole contract or the work with company X, this isn't related to Jack's department or work right now. But this could be a potential conflict of interest where measures can be put in place to ensure that Jack is separated from activities regarding company X, if he could, you know, foreseeably be a part of that at some time in the future. Let's say promotions or just natural career progression. So again, a very simplified version of what a potential conflict of interest could look like. Now, apparent conflicts of interest, this is where it really gets tricky because it's all about perception. And apparent conflicts exist where it could be perceived or it appears that a person's interest could influence the performance of their duties. And the kicker is whether or not this is the fact. So it may absolutely not influence the performance, but if it appears to do so, it's an apparent conflict of interest. So let's say Jack is in a really high visibility role and he works for a small company. And let's go back to the facts of the potential conflict of interest. So he owns 20% stock, Company X. Company X is a vendor to the company that employs Jack. Now, even if internally measures are already put in place, that Jack will recuse himself when it comes to activities concerning company X. He can't evaluate company X's work. But to a reasonable third person who's like, oh, I know about Jack's role with this company that employs him. I know about his stake in company X. This might appear to be an apparent conflict of interest. And they may say, oh yeah, of course, Jack's company is conducting business with X. That's because of Jack's role with the company. It's all about optics there. And if you replace financial interest here with, let's say, a close personal relationship, we're looking at the same apparent conflict. And apparent conflicts might become potential conflicts if it could be reasonably deduced that, oh, Jack may have to work closely with X in the future due to his role.  Niyati: I see. That's some super helpful hypotheticals. It is definitely important to be able to at least recognize there might be a potential conflict. And I think that's where you step in, where you're identifying these potential conflict of interest areas.  Kasturi: Absolutely, yeah.  Niyati: What is the process really for testing whether an apparent conflict is truly problematic and why does one, either individual or organization, need to address these apparent conflicts, even if they don't pose, for the lack of a better term, a real risk?  Kasturi: No, that's an excellent question. I'm going to start off by talking about the importance. On a very high level when we're looking at processes and procedures and all aspects of work we're looking for a certain fairness and process and oftentimes even the perception of unfairness just a perception that can undermine impartiality can undermine confidence and going back to the concept that some relationships have some sort of fiduciary duty or an actual fiduciary duty or a duty of care. And that's why so many places have added the concept of apparent conflict of interest as part of their bigger conflict of interest program or guidelines or policies. And in my opinion, the importance of apparent conflicts of interest, this increases when a person is client-facing or they're in a high visi

Reed Smith labor and employment partners Cindy Schmitt Minniti, John McDonald and Mark Goldstein discuss significant employment law updates, including the Department of Labor overtime rule being struck down, future expectations for non-compete agreements, anticipated reversals of National Labor Relations Board decisions and key upcoming Supreme Court cases. The partners also provide guidance on what employers should do before the end of Q1 2025. ----more---- Transcript: Intro: Welcome to Disputes in Perspective, a Reed Smith podcast. This podcast series will discuss disputes-related trends, hot topics, and developments occurring in the global legal landscape, and hopefully provide you with some helpful insights and practical tips. If you have any questions about any of the episodes, please feel free to contact our speakers.  Cindy: Welcome back to Reed Smith's Disputes in Perspective podcast. Today's discussion will be around some of the key issues that will affect employers in the United States in 2025. My name is Cindy Schmitt Minniti, and I'm the global chair of Reed Smith Labor and Employment Group. I sit in New York office, and I'm joined today by two of my partners. I'll turn it over so they can introduce themselves. John: Hi, this is John McDonald. I'm also a partner at Reed Smith. I work out of the firm's Princeton, New Jersey office principally. Mark: Hi, everyone. Mark Goldstein, a partner in Reed Smith's New York office and also a member of our Labor and Employment Group. Cindy: Thank you both for joining me in this discussion today. The new year always brings an opportunity to review employment practices and HR policies and usually brings a host of new laws, new regulations, and new focus for administration. And this year, I think particularly given the new administration, employers should really be mindful of some significant changes from an employment law perspective. John, what do you think employers should be most aware of? John: Thank you, Cindy. I think one of the key things might be a slight reversal in time and looking forward after we had a very big decision out of the state of Texas, the very end of the year in 2024, which has been important for employers because they were facing another change in law that was supposed to go into effect on January 1st of 2025, which is now put off. So let me cover that briefly. As folks listening to this podcast may be aware, under the Federal Labor Standards Act, employers can pay employees via salary, and if they meet certain job duties and the salary is high enough, employers can treat those individuals as exempt from both overtime and minimum wage requirements. We often refer to the main exemptions, which are the executive, the professional and administrative exemptions, as the white-collar exemptions. Earlier in the year, the current administration through the Department of Labor, had put forth a proposed rule that raised the salary threshold for sex exemptions, first on July 1st, from where it currently sits at $35,568 per year, up to $43,888 a year. And that, again, went into effect on July 1st, even with the pendency of several legal challenges, which I'll get to in a minute. But there was supposed to be yet another increase on January 1st. Of 2025, all the way up to $58,656 a year. In November of this year, the Eastern District of Texas came out with a decision that invalidated this rule, such that even the July 1st raise that most employers had already been dealing with is now no longer the law. And the January 1st employees were expecting to the salary threshold will not go into it. So what that does is it currently means that the salary threshold for paying employees sufficient enough salary to avoid having to pay overtime provided they meet the requisite duties tests remains presently at the 2019 rule level of $35,568 per year. It was expected that these changes and these increases is we're going to sweep millions of additional employees into being subject to overtime and therefore employers are going to have to worry about budgeting. Changing, and making sure employees were keeping track of their time every day so that employers could properly play their employees overtime whenever they work more than 40 hours in a given week. So with this decision out of the Eastern District of Texas on November 15th, all that Department of Labor rules is indicated and will not go into effect. And with the new administration coming to the office, coming into office soon, it's doubtful that anything will change with regard to that, because obviously with the decision being from the Eastern District of Texas, the Department of Labor certainly has the option to file an appeal or had the option to file an appeal to the Fifth Circuit, but is expected that that will not take place with the new administration coming in. Mark, what are your thoughts about that? Mark: Thanks, John. You know, in the next portion of today's podcast, what we want to talk about briefly is the U.S. Supreme Court and the forthcoming term or the ongoing term that started recently. And just like John outlined with some of the federal agency actions, we're likely in this term to see some substantial decisions out of the U.S. Supreme Court that will affect employers nationwide. But it's important to put any decisions forthcoming in this term in the context of where the court stands. Over the past decade or so, we've seen the court move increasingly in an employer-friendly way. Perhaps one of the most notable ways was in this past term, in June 2024, when the court issued its decision, many of you are familiar with, overturning so-called Chevron deference. And essentially what that decision did, a decision called Loper Bright, essentially what that did was reduce the deference that federal courts are required to give to federal government agencies. Any U.S. Employer will know that you'll frequently have to deal with federal agencies like the U.S. Department of Labor, the National Labor Relations Board, the EEOC, and these regulatory agencies typically will issue numerous interpretations of law and regulations. And since the Chevron decision was handed down in 1984, federal courts have generally deferred to federal agency interpretations of law, particularly where there's an ambiguity in the law. And so the decision in Loper Bright was important because it changed the standard by which federal courts are required to defer to federal agencies. And it'll be interesting to see, particularly with a new administration incoming, whether or not President-elect Trump tries to overturn certain agency rulemaking under President Biden. Specific cases that we're going to see coming up this term, there's three key ones that employers should be paying attention to. One relates precisely a topic that John was talking about, and that's exemptions under the Federal Fair Labor Standards Act. So the first case is basically not necessarily about who qualifies for an exemption and when they qualify, but the standard of proof an employer needs to show to prove that an employee does indeed qualify for an exemption. So in order to be allowed to pay an employee a fixed salary, as John said, the employee needs to meet two tests in order to qualify for an exemption to the FOSA. But the circuit courts are divided at present on the standard the employer needs to prove in order to show that an employee's role qualifies for an exemption. So in the first case that is going to be heard, the court's going to decide whether or not preponderance of the evidence standard will apply or a more rigorous, clear and convincing evidence standard. And again, the circuit courts are divided on this and it'll be interesting to see which way the court goes in that regard. If they go with the clear and convincing evidence standard, it will make it more difficult for employers in the U.S. To argue that their employees qualify for exemptions to the FOSA. Another interesting case that is going to be heard is Ames versus the Ohio Department of Abuse Services. And what's interesting about this case is it follows somewhat of a trend that we've seen since the Supreme Court's decision in the Harvard-UNC affirmative action case a few years ago relating to so-called discrimination claims brought by majority groups. And precisely that's what was that issue in Ames, is essentially a heterosexual male, white male, bringing a claim of discrimination against his employer. And the court, in that case, is being asked to grapple with whether or not somebody who's from a majority class needs to prove anything in additional, demonstrate that they've been subjected to discrimination. So in the underlying decision out of an Ohio federal court, the court determined that somebody who's in a majority protected class or protected group needs to demonstrate additional background circumstances, suggesting that the employer is the unusual employer who discriminates against the majority. So the Supreme Court now will be asked, do employees from majority protected classes, are their discrimination claims held to the same standard as all other groups? Or is there a heightened standard when an employee who's a member of a majority group is bringing claims of discrimination? And the final case that is particularly important to U.S. Employers is whether or not the Americans with Disabilities Act applies to former employees. Now, most employment laws across the country apply to job applicants, pre-employment, of course, during employment, and often post-employment. However, the ADA's language is a little bit unique, and there's a circuit divide as to whether or not the ADA applies to former employees. So in this particular case, a former city firefighter claims that certain benefits were denied to them after their employment ended, but with a discriminatory animus towards their age. So the court's going to be deciding in that circumstance, whether or not plaintiff can ava

Reed Smith’s Niyati Ahuja interviews Eric Ives – Attorney Advisor, International at the U.S. Department of Commerce, Office of the General Counsel’s Commercial Law Development Program – about his global work in advancing Alternative Dispute Resolution (ADR). Eric shares his journey from private practice to public service, discussing the unique challenges of adapting international ADR standards to diverse markets in Central Asia, Pakistan and the MENA. ----more---- Transcript: Intro: Welcome to Disputes in Perspective, a Reed Smith podcast. This podcast series will discuss disputes-related trends, hot topics, and developments occurring in the global legal landscape, and hopefully provide you with some helpful insights and practical tips. If you have any questions about any of the episodes, please feel free to contact our speakers.  Niyati: I’m Niyati Ahuja, Senior Associate in the New York office of Reed Smith. I work in the Global Commercial Disputes Group and International Arbitration Group. I'm qualified to practice law in New York and India. I do both investor state and commercial arbitration work, as well as some white-collar investigations and commercial litigation work in the New York Court. Today, we have with us Eric Ives. Eric is an attorney advisor international at the U.S. Department of Commerce's Commercial Law Development Program, where he leads the agency's ADR development work in Central Asia, Pakistan, and MENA, and works bilaterally with Uzbekistan on finance and digital trade law. Prior to joining the CLDP, Mr. Ives was an associate in White & Case’s International Arbitration Group in New York, where he worked on international commercial and investor state arbitrations. He advised corporate and sovereign clients across a range of industries, including insurance, pharmaceutical, telecommunications, and post-M&A disputes under all major institutional rules. Thank you so much, Eric, for joining us today and sharing your career path, what you’ve discovered, because you did make a switch from a big law firm to the government. So I'm very, very interested in what you have to say about all the questions we have for you.  Eric: Niyati, thank you so much for having me. I'll just say briefly at the outset that I'm here solely in my personal capacity and anything that we touch on today is solely my own opinion and doesn't constitute the opinion of the US Department of Commerce or the Commercial Law Development Program as an agency. And it's great to be here on the Reed Smith podcast. Looking forward to our discussion today.  Niyati: Getting right into it, Eric, tell me, could you share a little bit more about your role as an attorney advisor with the Commercial Law Development Program?  Eric: Yes, absolutely. I mean, as much as you can put in a bio, the work at CLDP is far ranging, covers the globe, and it covers pretty much every area of commercial legal development. The agency is about 30 years old. It was founded post-fall of the USSR to sort of create favorable investment environments for post-Soviet states. Now, 30 years on, that work has expanded to, well, around the world and covers pretty much every single area you can think of. In particular, coming from an ADR background, I focus on ADR law development in Central Asia, Pakistan, and MENA. So that's contract enforcement rights, and that sometimes veers into rule of law and access to justice issues as well. Arbitration, mediation, I think we often think of them as commercial topics, but they also touch public rights as well. And so it's actually been quite nice to see ADR in these new circumstances. Aside from alternative dispute resolution, I also cover finance law and digital trade issues in Uzbekistan on a bilateral basis. Central Asia is incredibly interesting to work in. It sits the middle of a lot of different regulatory approaches, and they're really choosing their way forward. So CLDP tries to show them what the American experience has been, particularly for their capital markets, their commodities markets, and digital trade regulation.  Niyati: Well, that's very interesting, Eric. But I was curious, and I'm sure our other listeners are as well, very curious to know what led you to transition from private practice, which was at a big law firm in New York to a government role with CLDP.  Eric: Yeah, I, I have to say I sort of cheated, I acted as an ADR expert, sort of an intermittent subject matter expert with the commercial law development program in Central Asia, specifically, while I was still in practice. So over the course of about a year and a half, I gave sort of lecture series to Viz Moot students. That's the Willem C. Viz International Commercial Arbitration Moot Court. For those who don't know, it's an international commercial arbitration competition where about 350 universities compete on a mock problem. And a part of CLDP's portfolio is, of course, educating law students around the world on this very fundamental ADR experience that many people have. So as part of that program, I gave a series of lectures in, well, in Bishkek, in Dushanbe, and in Latvia over the course of about a year. And I was like, shocked that the US government was one doing this kind of work. And two, that I could maybe parlay a commercial law background into the public service. You know, for me, that was like an opportunity that was too good to pass out.  Niyati: Yeah no that's that absolutely I think you made a great it seems like you're very happy with with the kind of opportunities you have and it seems like it's very wide-ranging which is excellent as a lawyer. Just out of curiosity how does managing ADR portfolios in regions that you are capturing Central Asia, Pakistan and MENA differ from your work as an associate at a big law firm in the US or just generally US versus different regions, but also working as a US government persona?  Eric: Yeah, it's a very different practice. At a firm, you know, you're constantly working on specific cases with very clear win-lose outcomes. In that sense, the stakes are pretty well known. In this role, you know, it's sort of about conceptualizing a larger theory of change and sort of taking it step by step, and executing on it. So that takes both a lot of planning and then very clear idea of how your logic model is going to flow, you know, what specific steps do you need to do to get a country, for instance, from, you know, actually, I shouldn't say this as an American, but an outdated arbitration law, for example, to you know, a modern international best practices piece of legislation. For a lot of modern commercial law issues, what works is pretty clear, like what encourages FDI to enter a host country is fairly clear. But getting to that outcome is very different in every jurisdiction. It's going to be very different in Uzbekistan as it is from from Pakistan, as it is from from from North Africa. So that's, I think, the biggest difference is that you're shifting from a case based approach to practice to sort of a larger systematic legal change practice.  Niyati: Yeah. And so since we were just talking about how it was working in private practice, are there any specific skills or lessons that you learned in your time in private practice that you find particularly useful or helpful in your current role?  Eric: Yeah.  Niyati: I’m sure the experience obviously comes with you, but are there any specific skills or lessons that you learned in your time?  Eric: Yeah, absolutely, Niyati. I'll say there's no substitute for hard work, for diligence, no matter where you are. I think at a very basic level, you can use responsiveness from a law firm to your advantage in the public sector, and you can combine it with a bit of diplomacy, especially when you're working with your partner governments to drive some sort of larger change forward. I think even just this very basic sort of approach to work shows your commitment, especially in jurisdictions where things can take time, but if they see the Americans very eager and moving fast, I think it helps generate momentum on their end.  Niyati: Yeah. And could you also share any experiences where your private sector or working in a private practice background provided insights into local or internationally in your practices? I know as arbitration practitioners, we often have to kind of understand what laws are applicable in terms of especially when there are investor state disputes, we have to understand how the state functions and what actions it should not have taken, or it shouldn't have taken, and it did not. So curious to know from you if there's anything specific that you could share with us.  Eric: Yeah, for sure. I will say at the outset, I'm not allowed to advise on any individual case, much as we do get the crazy factual matrices sent our way, nonetheless. In terms of actual skills from a law firm that I think have been a huge benefit, actually doing commercial mediations has been the biggest advantage. So in private practice, I worked on a few high value international commercial mediations. And as an agency, we are actually seeing a ton of interest in developing mediation writ large sort of new mediation regimes, and in particular, to develop a sort of group of qualified commercial mediators. And I think experience with those kinds of disputes sort of gave me a baseline to work backwards from. And I think it also sort of dovetails with the larger shift in even just the ADR industry away from arbitration and towards mediation. There will always be a place for arbitration, but I think the use of mediation is just going to see more use. So I'm happy to see that sort of on the forefront in the development discourse.  Niyati: Yeah, as an arbitration practitioner, I take offense, but I'm sure, no, I'm kidding. But it is true. There's several modes of, I mean, I'm seeing a lot of clauses now, not a lot, but I am seeing more and more clauses which have sort of a prior mediation

In this episode, Ed Mullins and Rebeca Mosquera explore the complexities of section 1782, a powerful tool for obtaining U.S.-based evidence for foreign proceedings. They discuss the various types of evidence that can be requested, the requirements and procedures for filing applications, and how to respond to such discovery orders for the defense. With insights from recent Supreme Court rulings, they analyze the implications for practitioners and offer practical advice on leveraging section 1782 effectively in the evolving legal landscape. ----more---- Transcript: Intro: Welcome to Disputes in Perspective, a Reed Smith podcast. This podcast series will discuss disputes-related trends, hot topics, and developments occurring in the global legal landscape, and hopefully provide you with some helpful insights and practical tips. If you have any questions about any of the episodes, please feel free to contact our speakers.  Rebeca: Welcome to Disputes in Perspective. I am Rebeca Mosquera, a senior associate in our New York office specializing in international arbitration and litigation. Joining me is my wonderful colleague, Ed Mullins, a partner in our Miami office. Ed and I have had the pleasure of working together on several international arbitration and cross-border disputes. Today, we're exploring a topic that regularly generates a lot of discussion, Section 1782 of the U.S. Code. So, let's dive right in. Essentially, Section 1782 is a federal statute that allows individuals involved in legal proceedings outside the United States to request assistance from U.S. Courts to obtain evidence located within the U.S. It's like a legal bridge between foreign courts and U.S.-based evidence. I want us to visualize this. So, for example, imagine that you're part of a lawsuit in, say, Brazil or Germany, and you realize that crucial evidence or testimony is sitting with a company or an individual in the U.S. So instead of jumping through international hoops and letter of rogatories, Section 1792 lets you go straight to a U.S. District court to request the evidence. It is a powerful tool that promotes international cooperation and can significantly impact the outcome of foreign disputes. When I say it promotes international cooperation, that was precisely the spirit of this statue when it was created. The U.S. created this statue in the hopes that other countries will replicate similar laws and statutes. But I don't think that's happened. But in any case, now you might be wondering about the type of evidence you can request, what are the elements, or what does your application might have to include. And for that, I would like to turn it over to Ed so he can tell us more about the requirements that we need to meet for a Section 1782 application.  Ed: Thank you. I'd really enjoy talking about 1782 because I think it's a pretty unique statute. I can find out more information about a case before it's even filed for a foreign proceeding than I can domestically. And it's a very powerful tool. You can get not just documents, but you can get deposition testimony as well. And the lawsuit that that issue doesn't even have to be filed yet. So let's talk about the statute itself. I agree with Rebecca that the idea was that we were supposed to be able to get evidence for our cases in the United States in foreign countries that hasn't really worked out. And so there is an imbalance here where you can get more evidence for a foreign proceeding than you can for a case here looking for discovery in a foreign country. So there's different ways to talk about the elements. I think the logical way you see most cases look at it, the elements are an interested person doesn't necessarily have to be a living person. It can be a corporation. The evidence needs to be for use in a foreign proceeding. And the target, often called the target, it has to be found in the district of the 11th Circuit and other circuits. So the fourth element that it has to be, you have to be looking for evidence. But since you get documents of deposition, that's not really an element that ever has to be met. So those were the three elements. And we'll start with an interested person. It's a pretty easily met standard. You typically, it often is a litigant, if you will, in the foreign proceeding. So that's easily met, but it doesn't necessarily have to be. Courts have allowed it to be a shareholder of the company that’s suing in the foreign proceeding. It could be an officer and it could be other related entities. So there is some litigation about an interested person, but it's not a particularly hard element to meet. The second element is for use in a foreign proceeding. There is more litigation on this one. One issue is that is the case that you're looking for discovery or is it over? There have been cases where the proceeding's over and it's up on appeal, had litigation over an issue as to whether or not you could bring new evidence in on appeal in the foreign proceeding. It was a battle of the experts in the court to confirm that they could not, then found that the evidence sought was not for use for a foreign proceeding. There are cases talking about whether or not you can use it to collect on a judgment. There are procedures to obviously enforce a foreign judgment. If you're not really looking for evidence for the foreign proceeding, but actually looking for evidence to find assets to collect on a judgment, the court could find that's not actually for use in a foreign proceeding. And there's been another line of cases more recently where, coming out of New York, where the courts have found that it's not really that your elements, you're not really looking for use for a foreign proceeding. What you're really looking for is to get evidence to bring in action here. And so one case recently, the judge asked the applicant, are you going to tell me you're not going to sue here in the United States? And the applicant's lawyer would not make a concession, and then the court denied the the application saying that, look, I mean, I don't believe that this is simply for use in a foreign proceeding. It looks like this is for use in domestic proceeding. Therefore, you are not properly using the statute. So I think that's part of a line of authority where the courts are kind of pushing back on the statute a little bit because it is so heavily used that, you know, It is a lot of these 1782s around the country. We have used them all over California, New Jersey, Delaware, New York, Georgia, South Carolina, many in Florida. There are cases all over the country that we've had and others have had. So the courts are starting to get used to this. And also, kids kind of swamped the boat in any event. But the last thing I want to talk about before use is, I mentioned earlier, the case does not have to be filed. All it's required is reasonably contemplated. The circuits are not necessarily consistent of what that means. There's a much more liberal standard in 11th Circuit where I am. Some courts have said it's got to be much more. You can't just be looking for evidence to determine whether or not you want to sue. But it's pretty consistent that if you're going to do this, you need to have the lawyer that's probably going to file a case say, this is what I'm going of file. These are the elements. This is why I need this discovery. But what's critical to this is, and I think this example I had used earlier. This is not something I can do generally for a domestic case. Hey, I'm thinking about a settlement. This is the evidence I need, and I want to find out about it. It's harder to do that in some courts than possible to do that for a domestic case, but you can do it for a foreign proceeding with 28 U.S.C. 1782, which makes the statute pretty powerful. And finally, found in the district, my wife and I, Professor Rima Mullins at FIU, wrote a chapter in a book about this element, part of a treatise co-edited with Lawrence Newman. And we're in a second edition if you want to read about this more. And the idea is, you know, is somebody found the district? The standard typically is, the easy one is if it's a human person that's where the person lives. That's the easy one. I think deposition found the district where the person lives. Typically, if it's a bank account you're looking for, you can use this to find bank accounts from people, et cetera. Where does the account live? You know, where is the account? And if it's a company, where is it incorporated? A principal place of business. So those are the easy ones. So again. That's the, you know, where the company is, where the person is. But the standard that the courts have also talked about is continuous and systematic. Those of you that remember the old general jurisdictions, I remember that. That's how we used to have general jurisdiction over people, personal jurisdiction. And so the courts have done a sort of a general jurisdiction, old general jurisdiction analysis that you don't necessarily have to incorporate there, but if you have to use a systematic context, that's enough. But the second circuit has even gotten broader. In that circuit, they have actually gotten broader and actually looked at a personal jurisdiction analysis of the civic jurisdiction and looking at the context of the evidence in the lawsuit and whether or not there's minimal context for 28 U.S.C. 1782. It's much broader. And I think, Rebecca, you were going to talk about the founding of a district in another way when we got you, correct?  Rebeca: Yes, I mean, definitely that element or that concept of being found, I agree with everything you've said, but some courts have been very liberal or expansive in interpreting this concept. And it was in the Second Circuit where a court found that a person was traveling through New York for a number of days. That also meant that that person was found in the district and it was served with a 1782 application. So I completely agree that t

There are two new corporate offences under the Economic Crime and Corporate Transparency Act 2023: the senior manager offence and the failure to prevent fraud offence. London-based Global Regulatory Enforcement partners Rosanne Kay and Patrick Rappo are joined by London senior associate Emma Shafton to discuss the new offences and their relevance to disputes lawyers. ----more---- Transcript: Intro: Welcome to Disputes in Perspective, a Reed Smith podcast. This podcast series will discuss disputes-related trends, hot topics, and developments occurring in the global legal landscape, and hopefully provide you with some helpful insights and practical tips. If you have any questions about any of the episodes, please feel free to contact our speakers.  Rosanne: Welcome back everyone to Disputes in Perspective. My name is Rosanne Kay. I'm a partner in the London office specialising in white-collar crime and I am joined today by two colleagues also from Reed Smith's London office and also specialising in white-collar crime, Patrick Rappo and Emma Shafton. And what we wanted to do briefly today is to talk about the new corporate crime offences, and in particular, explain how they are relevant to disputes and litigation. To start with, though, I'm going to ask Emma to just give us an overview of these new offences and why they're significant.  Emma: Well, there are two new offences under the Economic Crime and Corporate Transparency Act of 2023. The first is the senior manager offence and the second is the failure to prevent fraud offence. So dealing with the senior manager offence briefly first, this has been enforced since the 26th of December last year and it introduces criminal liability for companies of any size for a wide range of financial crimes. So that includes things like money laundering, breach of sanctions legislation fraud bribery and a company can be held criminally liable where any of those offenses are committed by its senior managers. Previously corporate liability could only be attributed where the prosecution could show that there was a directing mind and will of a company involved in the offending and as a result historically it's been really difficult for prosecutors to successfully prosecute companies for financial crimes. So that's the first offence, and that's the strict liability offence. And the second, which is not yet in force, is the failure to prevent fraud offence. That will come into force when the UK Home Office publishes guidance. And as of the date of recording, which is the 23rd of September, that guidance hasn't been published yet, but it could come in the next few weeks or the next few months. And what this offence does is introduces criminal liability for large organisations and their subsidiaries where an associate commits fraud. An associate could be an employee, an agent, or somebody that performs services for or on behalf of the organization. So a consultant maybe or an intermediary. And that associate must intend that the fraud benefits the organization or any other person to whom the associate provides services for or on behalf of the organization. So that could be a customer, for example. Now the failure to prevent fraud offence is strict liability offence and it will be made out unless the organisation can show that it has reasonable preventative policies and procedures in place and the guidance that I've referred to will detail what will be expected of companies. The offence will come into force following a brief preparatory period which could be as little as six months and that will be confirmed once the guidance is published. So that's a brief summary of the two offences and really the introduction of them cumulatively represents a seismic shift in the law on corporate criminal liability in the UK and they've both been welcomed by prosecutors such as the Serious Fraud Office. One other point that's very important to note is both of those offences apply extraterritorially so they can apply to non-UK companies operating in the UK conducting business here. And the failure to prevent fraud offence can be committed by all large organisations and their subsidiaries wherever they are incorporated or formed or carrying on business. So it appears to have a much broader reach than the failure to prevent bribery offence under the UK Bribery Act, which our listeners will no doubt be familiar with already. So that sets out the two offences, Rosanne, but perhaps I can ask Patrick at this stage, what do you think the investigation, prosecution, conviction risks are of these two new offences?  Patrick: Thanks for that summary, Emma. That was great. I think when looking at this, the important thing to note is that, as you say, this is a seismic change in the UK law, and particularly the senior manager regime. I think the view is that there's going to be much more appetite in relation to that, which, as we'll hear shortly, has more linked defences to it than the failure to prevent regime, and applies to a wider range of offences than just fraud. So the fact of the matter is that on the senior manager offense. If a senior manager commits a bribery matter, which is dealt with by the SFO, if a senior manager commits a money laundering matter, which will often be an FCA, financial conduct authority type offense, or commits a tax evasion offense, which will often be HMRC dealing with enforcement in relation to that. at. So the senior manager regime has a much greater range of potential enforcers looking at it. And I think at the minute, there's a race in order to be the first entity to bring a conviction successfully under this legislation. So I think there's a much greater appetite for enforcement generally, and specifically to use this new tool in the armory. And effectively, there's a race to try and get there first. So I think there's a much bigger investigation risk because all of those agencies are investigating these cases in order to effectively show their value to the new government, which is in place in the UK. In terms of the prosecution risks, as I mentioned before, the reality is the fact that there is a quite wide-ranging defense available to the failure to prevent offence, which is that of having reasonable procedures in place, and the fact that that's limited to large companies, which again we'll explain shortly. Will mean that there's a much smaller group of companies that that can apply to, and a much broader range of offences. So I think the prosecution risk for failure to prevent is probably lower, but there are things that you have to do in order to limit that risk to yourself as a company. But in terms of the senior manager regime, I think in relation to that, the prosecution risk is very significant because now companies will be liable for the activities of their senior managers in the course of their perceived work that they're doing for the company. So that massively expands corporate criminal liability risk. And therefore, in terms of conviction, I think the risk really is in relation to that side of things for activities of senior managers to do fraud measures or AML measures or bribery and corruption or sanctions violations or tax violations. But again, the proof will be in the pudding, and we'll have to see what sort of happens in the near to medium term in relation to this. But I think the next question really is back to you, Rosanne, in terms of what I was alluding to there, of what are the defences for companies and the prospects of success for the state when they bring investigations and prosecutions in relation to both of these sets of offences?  Rosanne: Yeah, I mean, I think, I mean, I'm sort of echoing what's already been said, which is that it's the senior manager offense, which is actually the one that creates a real difficulty for companies because the definition of senior manager is quite vague and there is no defence to the senior manager offence. So, there's nothing that a company can sort of anchor itself to, to avoid liability if a senior manager commits one of the relevant offences. Obviously, it's of assistance if the company has a strong compliance culture and structure in terms of its policies and procedures, A, to prevent the offence occurring in the first place, but also to act as some kind of mitigation, even though that's not formally recognised in the offence. That's obviously different from the failure to prevent offence, where there is a reasonable procedures defence in the sense that if a company can demonstrate that it had reasonable procedures in place to prevent the fraud, then that will help them in their defence. So the prosecutors are going to find it easier to prosecute for the senior manager offence and harder to prosecute under the reasonable procedures, the failure to prevent offence. But as with all the failure to prevent offences that we've seen before, Bribery Act in particular, we're likely to see some DPAs. But I think what's really the sort of nub of what we wanted to discuss today was the relevance of these two offences to disputes lawyers. And Patrick, maybe you could start by telling us a bit about that topic from a sort of civil litigation perspective.  Patrick: Well, certainly I was sort of heading up the bribery and corruption divisions at the Serious Fraud Office when the failure to prevent bribery offence came out. And it's no sort of hidden secret that at that time, the serious fraud office was mad keen to use those powers and was looking to investigate as much as possible. And one of the ways to do that was look to see what's happening in the civil courts and see which cases are happening there, which are bribery related. And if there's any potential action that could be taken on the criminal side. And again, it's a great source of information, which has potentially already been pre-prepared by a number of companies or entities that are facing off against each other in civil litigation proceedings. So a lot o

In the U.S. and UK, issues relating to ESG risks are expanding and evolving rapidly and continually for commercial entities. Organizations have a part to play in promoting good ESG conduct, but this comes with the responsibility of managing potential liability and litigation. In this podcast, Tom Webley, partner in our Global Commercial Disputes Group in London, Mark Goldstein, partner in our Labor and Employment Group in New York, and Mark Pring, partner in our Insurance Recovery Group in London, discuss topical issues relating to ESG risks and steps directors can take to mitigate these risks in both the UK and U.S. ----more---- Transcript: Intro: Welcome to Disputes and Perspective, a Reed Smith podcast. This podcast series will discuss disputes related trends, hot topics and developments occurring in the global legal landscape, and hopefully provide you with some helpful insights and practical tips. If you have any questions about any of the episodes, please feel free to contact our speakers. Mark P: Welcome back, everyone, to Disputes in Perspective. My name is Mark Pring and I'm a partner in our global commercial disputes and insurance recovery teams. I'm delighted to be joined by my partners and colleagues, Mark Goldstein, a labor and employment lawyer in our New York office, and Tom Webley, a commercial disputes and regulatory lawyer in our London office with extensive experience, particularly in the financial services sector. In this short podcast, we'll be addressing some topical issues relating to disputes arising out of ESG risks. We think it's fair to say that people have long been aware of the risk of litigation in the ESG context, but we're starting to sense that the litigation landscape and indeed the regulatory landscape is changing in a number of jurisdictions, including the UK and the US in relation to litigation. The focus of attention previously was on class action claims against the likes of polluters and governments directly responsible for environmental damage or impacts on communities, but now there are myriad other risk exposures. Tom, if we can start with you. Do you get the sense that the UK risk landscape is changing? Tom: I do. Mark, I mean, I think it's not just changing, but it's fair to say that in relation to ESG risks and litigation risks, it's probably expanding and expanding quite rapidly and continually. You mentioned that a lot of the previous claims were against what we probably could look at as primary infringes. So for example, anyone who's directly responsible for any pollution or emissions or environmental harm. But that certainly isn't what we are seeing claims limited to now and probably increasingly so, ESG and particularly the E. So if we think about climate change, this is seen as something for which all commercial entities have some sort of responsibility to drive change for the good, to improve their own conduct in their own performance in that sphere. And I think the net result of that is likely to be an increased amount of claims against a much wider range of potential defendants, almost to the point where actually any single commercial entity could be in the firing line. And if we take an example of how this has manifested in practice, you could look at the action that's been taken by organizations like ClientEarth. You may well be aware a lot of people will. That client brought a claim against directors of Shell. Again, that's much more focused on the more primary infringer type claims, but they've also been writing to wider organizations like trustees of pension funds, reminding those trustees that people investing money also have an obligation to the wider community to ensure that the investments drive change in a positive way. So that's an example of the expansion away from the original target for those claims into something completely different. And it's likely not just to be pension funds and the asset managers and people with large amounts of money to invest banks and lenders have really been put on a pedestal as an industry, which is at the forefront of change, forefront of promoting good practice and ensuring that all organizations are moving in the right direction. And with that responsibility comes potential liability as well. So I mean, I think the scope really has expanded dramatically from only those directly involved in certain industries, certain sort of higher risk industries being the potential targets to actually it being much broader. And I think it's almost fair to say, Mark, that it's difficult to imagine any sort of commercial entity or organization these days that doesn't have a part to play in promoting good ESG conduct and therefore takes on some responsibility and potentially some sort of liability for doing so. Mark P: Yeah, yeah, no, I agree. Can we explore a little bit further what might actually be driving a lot of those claims? Maybe not all of them, but from a sort of social context, what do you see in terms of underlying currents that might be driving a lot of those claims? Tom: I think in its most basic market, a lot of them are driven by genuine passion and desire and a really strong sense of feeling. I mean, if you look at compared to Mark Goldstein compared to the US where class actions are very well established practice, we have only had a few class actions group litigations strike claims being brought over here by comparison, but a lot of them are financially driven, whereas the sense that I think we're getting particularly again going back to the environmental side of the ESG claims is that people feel very, very strongly about this. I mean, all you have to do is look at some of the other activities that people do, the activist activities such as people who are going out of their way to take physical steps to stop certain types of what they see as harmful activities and risking prison sentences increasingly in the UK as well, that people do feel strongly about this and they feel that litigation is a very powerful tool which can be used to change how people behave to hold wrongdoers to account and promote good conduct. And so therefore, I think part of this is being driven by that real genuine desire for change and seeing that litigation be a part of that. Social media as with so many other things, plays an important part as it means people can combine together, they can unify, there's a real sense of power in numbers as people can coordinate activities, which makes these sort of claims much easier to bring rather than individuals trying to do it themselves. And I think also there's a wider opportunity for there to be causes of action. And I think there are a number of reasons for this. One is an increase in legislation. There's much more pro ESG legislation that's being brought out. That means that companies and organizations are under more legal pressure and legal obligations, which the more obligations you have, the easier it is to breach them. So that can trigger causes of action. And there's also the greater ability for claimants to actually bring the claim. If you go back, Mark, to the sort of the primary infringer point that you raised earlier, often any action or any negative action would really affect relatively small communities. They could have catastrophic effects, but they would still be quite localized. For example, in oil spill emissions, something that came out of a particular factory or mine, whatever it is. But because the focus on climate change is such a global one and everyone sees it as now an issue that's affecting absolutely everybody. On the one hand you have this being looked at as almost a human rights issue, which gives everyone the ability to bring a claim because they've been affected by it or more narrowly. If you take a look at, for example, anyone who's choosing which companies to use, who to invest in whatever it is, consumer behavior is being much more driven by ESG related criteria. And that means people are being induced or people are being convinced to take certain action to buy certain goods, to invest in certain companies on the back of their ESG credentials. And that means that there's much more opportunity to argue that there was, for example, a misrepresentation which caused you to take certain steps, which meant you suffered loss. So that I think is increasing the opportunity for claims to be brought as well. As I mentioned above, there's a much wider pool of potential defendants out there against whom to bring the claims, but none of that would be possible without the funding to bring them. I mean, I think it's fair to say that litigation, particularly in the UK, is incredibly expensive. It's very, very challenging to get enough money to get these claims off the ground, let alone run them to completion. And that's where litigation funders come in and they've been very vocal as an industry, I think in promoting ESG claims as a potential source of their funding or potential home for their funding. And they do see this as a big growth market for that sort of investment. And that will very much help drive these claims as well, I would've thought. So what it really is is a combination of a groundswell of genuine feeling added to more opportunities to bring the claims and then the available funding in order to be able to bring them and take them through. And that I think has created a potential perfect storm in relation to the growth and development of ever increasing ESG related litigation. Mark P: Yeah, lots of food for thought there, Tom, and we'll pick up on one or two of those strands. I think later on. I'm very conscious we want to bring Mark in on the US side as well. But just briefly alongside and perhaps interlinked with the litigation risk, there's a perception of greater, if I can put it, regulatory risk as well. And how are the regulators from the UK context at least behaving and responding to this new litigious environment or landscape? And two, those systemic ESG re