July 1, 2016 nº 1,760 - Vol. 13

"By ignorance is pride increased; Those most assume who know the least."

John Gay

In today's Law Firm Marketing, Increasing credibility key to marketing; name visibility a poor substitute


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  • Top News

Federal court rejects Visa and Mastercard class action settlements

In a unanimous ruling on Thursday, the US Court of Appeals for the Second Circuit rejected a settlement agreement between retailers and credit card issuers. Millions of retailers had reached a $7.25 billion antitrust settlement with Visa USA and MasterCard International in 2013. However, after determining that some of the merchants covered by the pact were inadequately represented, the Second Circuit found that the agreement violated Federal Rules of Civil Procedure Rule 23(a)(4) and the Due Process Clause of the Fourteenth Amendment. The case was filed as an antitrust class action by approximately 12 million merchants in 2006 against Visa, Mastercard, and various issuing and acquiring banks alleging conspiracy in violation of Section 1 of the Sherman Antitrust Act. The dispute mainly arose over the interchange fee, which is ultimately paid by retailers and other merchants to the issuers and banks. Among other deficiencies noted by the court, one class of merchants was eligible to receive money damages, while the other could only receive injunctive relief. There was also an opt-out provision, specifically reserved only for a particular class of merchants. Stating that the Due Process Clause requires the named plaintiff to "adequately represent the interests of all absent class members at all times," the court stated that the settlement failed to meet this requirement and the procedural requirements of FRCP 23(a)(4) and rejected the settlement as unreasonable and inadequate. (Click here)

Volkswagen settles US claims of cheating emissions tests and deceiving customers

Volkswagen AG has agreed to spend up to $14.7 billion to settle allegations of cheating emissions tests and deceiving customers in a settlement with US regulators announced Tuesday. The company will either to buy back or to terminate existing leases on model year 2009 to 2015 vehicles equipped with the company's 2.0 liter diesel and held by US consumers. Under this program the company is prepared to spend almost $10.03 billion compensating consumers. Furthermore, the company will spend over $4.7 billion to mitigate pollution from these cars in response to cheating emissions tests. The settlement comes after allegations from the Environmental Protection Agency (EPA) and California Attorney General's Office and the California Air Resources Board relating to Volkswagen's use of devices meant to cheat emission tests by using illegal software to alter engine functions when testing equipment was present. The settlements also resolve claims by the Federal Trade Commission (FTC) that Volkswagen's advertising of the affected vehicles as "clean diesel" and "low emission" was deceptive and unfair. In all, these settlements require Volkswagen to offer a buyback program and meet an 85% recall rate, provide EPA-approved modification to their vehicle emissions systems, fund Emission Reduction programs, finance improvements to Zero Emissions Technology, and provide injunctive relief and compensation to those who they deceived with their advertising practices.

Can the law stop Brexit?

As the dust settles after the UK vote to leave the EU, lawyers are picking over the landscape and legal opinions are emerging as to how the UK's departure from the European Union might be slowed or even stopped. They fall into three main areas: the operation of Article 50 of the Lisbon Treaty. a Scottish "block", or a second national referendum It has come as a shock to many that the referendum result itself is not legally binding in UK law and it alone does not trigger the UK's departure from the EU. That has to be done under the withdrawal process laid down in Article 50 of the Lisbon Treaty. In other words, the referendum has changed nothing legally but everything politically. In a piece co-authored by three legal experts, for the UK Constitutional Law Association, it is argued that under our constitutional settlement, the prime minister cannot issue a notification under Article 50 without being given authority to do so by an act of Parliament. However, it seems constitutionally inconceivable that Parliament would fly in the face of the Leave vote secured through a national referendum and refuse to pass an act that gave the prime minister authority to begin the "divorce" process. While lawyers may raise arguments, it seems impossible to see a legal challenge stopping the great democratic juggernaut now chuntering towards the EU's departure gate. There are times when politics simply outstrips the law. This feels like one of them.


1 - Couple win legal battle against ruling on dead daughter's eggs - click here.

2 - German Court Rules Against Headscarf Curbs for Law Students - click here.

3 - New York Banking Regulator to Publish New Rules to Fight Money Laundering - click here.

4 - Justice Department Won’t Alter Music Industry Royalty Rules - click here.


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  • MiMIC Journal

Chinese anger over 'sex degrades girls' textbook comment

A Chinese sex education textbook describing girls who have premarital sex as "cheap" has sparked a backlash. Premarital sex had a "tremendous negative psychological and physical impact on girls", said the High School Sex Education book. The textbook, by 21st Century Publishing Group, also added that "girls do not increase the love they receive from boys by sacrificing their bodies, but rather are seen as 'degraded' by their 'conquerors'. "As a result, sexual relations can cause women to lose love."

China implements new internet regulations for search companies

The Cyberspace Administration of China (CAC) on Saturday announced that search companies must abide by new internet regulations. The CAC stated that search companies must produce results in line with national interests and must clearly distinguish normal results from paid ads which may display illegal and misleading information. Search companies are also required to properly report illegal content which may threaten national security or negatively impact public judgment. The new regulations follow an investigation into Chinese search company Baidu Inc. which began six weeks prior. The investigation was a response to raised national concerns triggered by the death of a cancer-stricken internet user who used Baidu as a source of medical information. Baidu has declared that it will firmly comply with new internet regulations and has promised to provide more reliable search results.

  • Law Firm Marketing

Increasing credibility key to marketing; name visibility a poor substitute
By Trey Ryder

"Keeping their name in front of prospects" is often the reason lawyers choose certain marketing methods. But keeping your name in front of prospects is a very low standard.

When I choose a lawyer, it's not because I've seen his name over and over. It's because I want the benefit of that lawyer's knowledge, skill, judgment and experience.

That means, to make my choice, I must have some idea about the lawyer's knowledge and experience. That comes through educational methods the lawyer uses to communicate with me.

When you consider marketing tools, ask yourself what that tool does for you Does it increase your credibility by offering information and advice about your prospect's problem? Or does it simply "keep your name in front of them"?

Remember, any time you communicate with prospects, offer some amount of information and advice, even if it's just a small amount. This way, with each communication, your prospect learns something new. While these communications do keep your name in front of prospects, they also continue the flow of knowledge and experience from you to your prospect. This is a much higher standard and a much more effective way to market.

In this way, your prospect benefits from your communications. Without your knowledge in the form of information and advice, your prospect simply receives an advertising message, which he promptly tosses into the round file. But notes, letters, alerts, newsletters and fliers that contain information and advice are often kept -- sometimes for a very long time. I've seen prospects carry materials into my clients' offices as long as five years after we published that particular handout.

Bottom Line: In all of your communications, stay in the education mode. If you keep educating, your credibility with your prospect will continue to grow. This puts your marketing effort miles ahead of other lawyers who simply "keep their name in front of them."


© Trey Ryder

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  • Historia Verdadera


La compañía petrolera canadiense Pacific E&P entregará este viernes a la paraestatal colombiana Ecopetrol el centro Campo de Rubiales, al cumplirse el contrato de ocho año de explotación de ese yacimiento. (Presione aquí)


Canadá, Estados Unidos y México pidieron a los principales países productores de acero del mundo que asuman un fuerte e inmediato compromiso para abordar el problema del exceso de capacidad de la industria siderúrgica. A través de un comunicado conjunto, instaron a poner fin a los subsidios estatales y otras ayudas que mantienen artificialmente alta la capacidad. Estados Unidos ha actuado varias veces para hacer frente a lo que califica como dumping de parte de algunos productores de acero chinos.


Cuba y Suecia firmaron un acuerdo que regulariza la deuda bilateral, como parte de la instrumentación del convenio suscrito entre la isla y el Grupo Ad-Hoc de sus países acreedores en el Club de París. El documento fue rubricado por el vicepresidente del Consejo de Ministros de Cuba Ricardo Cabrisas y la encargada interina de negocios de la embajada del país europeo, Kristine Elsa Maria Erlandsson. En diciembre de 2015 el gobierno cubano y sus acreedores del Club de París decidieron regularizar un monto de US$ 2.600 mlls. por concepto de deuda vencida en un período de 18 años.


El embajador del Reino Unido de Dinamarca en Colombia, Lars Steen Nielsen, manifestó que su país está dispuesto a estrechar lazos de cooperación con el gobierno nacional, especialmente en lo relacionado con el posconflicto y las cárceles. Durante una visita al ministro de Justicia, Jorge Eduardo Londoño Ulloa, el diplomático recordó que su delegación está en Colombia hace ya dos años y que entre otros temas, ha colaborado en el apartado de la agricultura. Al tiempo, confirmó que ha establecido contactos con el Ministerio de Salud con el objetivo de intercambiar experiencias en el tema carcelario.

  • Brief News

No trade talks until full Brexit

The European Union's top trade official says the UK cannot begin negotiating terms for doing business with the bloc until after it has left. "First you exit then you negotiate." After Brexit, the UK would become a "third country" in EU terms, meaning trade would be carried out based on World Trade Organization rules until a new deal is complete. WTO rules restrict the circumstances in which countries discriminate in favor of each other in trade. Otherwise, they must apply to each other the tariffs they apply against the rest of the world. Detailed talks to shape the UK's new trading relationship with the EU should not start until after the process of leaving politically, under an Article 50 process lasting up to two years. There are actually two negotiations. First you exit, and then you negotiate the new relationship, whatever that is.

Obama warns on global growth after UK vote

Obama has said the UK vote to leave the EU raises "longer-term concerns about global growth". “Brexit would freeze the possibilities of investment in Great Britain or in Europe as a whole," he said. He appealed to the UK prime minister and other EU leaders to ensure an orderly process for the British exit. Earlier EU leaders warned that the UK must honor the principle of free movement of people if it wants to retain access to the single market.

Brexit aftermath: first thing we do, hire all the lawyers

Lawyers, accountants and consultants are bracing for an onslaught of work, as the UK’s vote to leave the European Union promises to unleash a major overhaul of regulations and contracts.

US opens investigation into Tesla after fatal crash

US authorities are investigating the first death potentially caused by self-driving technology. The driver of a Tesla car died in Florida in May after colliding with a truck. Under scrutiny is Tesla's Autopilot feature, which automatically changes lanes and reacts to traffic. Tesla said it appeared the Model S car was unable to recognize "the white side of the tractor trailer against a brightly lit sky" that had driven across the car's path. The US National Highway Traffic Safety Administration (NHTSA) will look at whether the Autopilot function performed as expected, or was at fault.

Slovakia assumes EU rotating presidency amid Brexit fallout

Slovakia assumes the six-month rotating presidency of the EU on Friday, as the bloc faces unprecedented pressure following UK decision to leave it. It is the first presidential stint for Slovakia, which joined the EU in 2004. Prime Minister Robert Fico has said the EU will have to "redefine" unsuccessful policies, particularly on immigration. Correspondents say the Slovak agenda, which also includes reforming the European Union's single market, will be eclipsed by the fallout from Brexit.

US military lifts transgender ban

The US military has lifted its ban on transgender members serving openly in the country's armed forces. The policy, which will allow members to transition gender while serving and will set standards for medical care, will be phased in over a year. It will ensure no-one can be "discharged or denied re-enlistment" based on gender identity.

ACLU challenges "authorized use" provision in federal computer law

The American Civil Liberties Union (ACLU) on Wednesday filed a lawsuit challenging a provision in the Computer Fraud and Abuse Act (CFAA) allowing for criminal prosecution based on access that "exceeds authorized use." The ACLU contends that the broad interpretation of the prohibition on unauthorized use to obtain "information from any protected computer" allows for criminal prosecution for violating a website's terms of service, which may prohibit "gathering or recording publicly available information, creating multiple accounts, or providing false information." The plaintiffs in the case, including academic researchers and a news organization, argue that the people "who want to use those methods for socially valuable research should not have to risk prosecution for using them". (Click here)

Austrian court to rule on far right poll result challenge

Austria's Constitutional Court is due to rule on the far-right Freedom Party's challenge to the result of last month's presidential run-off vote. It will determine whether irregularities were committed and the election should be held again.

Supreme Court to hear cases on multipart patent infringement, sentencing, redistricting

The US Supreme Court on Monday granted certiorari for two new cases next term, and noted probable jurisdiction to another. In Life Technologies Corporation v. Promega Corporation the Court has been asked to determine whether the sale of a single component of a multiple part invention from the United States constitutes a patent infringement under 35 USC. § 271(f)(1), making the manufacturer liable for all claims worldwide. The United States Court of Appeals for the Federal Circuit previously held that such sales do constitute an infringement under the statute. In particular, the court stated that a company need not seek to influence or persuade another company to create an infringement, but merely enable a violation under § 271(f)(1).

Belgium appeals court lifts restrictions on Facebook data collection

The Brussels Court of Appeals on Wednesday found that the Belgian courts do not have jurisdiction over Facebook's collection and processing of data from users in Belgium. The court noted that Facebook is an American company that bases its European operations, including data processing for European and some North American customers, in Ireland. As such, the court found that it had no jurisdiction over the processing of data collected by a foreign company in a foreign country. The Commission for the Protection of Privacy (CPP) said Wednesday's ruling vacating a lower court order preventing Facebook from any tracking of users within the country who have not signed up for the social networking platform meant that Belgians were unable to protect their private lives from foreign actors and would be exposed to massive violations of their privacy. The CPP also indicated that it is examining an appeal to Belgium's Court of Cassation.

Putin lifts ban on charter holidays to Turkey

Putin has lifted curbs on tour firms selling holidays in Turkey, brought in after a Russian jet was downed last year. The move was announced in a decree (in Russian), in which Putin also ordered trade talks with Turkey. The ban on charter flights hurt the tourist industry in Turkey, a favorite destination for many Russians. The lifting of non-travel trade sanctions will depend on the outcome of the trade talks, the Russian leader said in his decree.

India Supreme Court refers decision on challenge to homosexuality ban to Chief Justice

Two justices of the Supreme Court of India on Wednesday declined to rule on a petition challenging the constitutionality of the country's law prohibiting sex between consenting adults of the same sex. The petitioners, several prominent LGBT celebrities, had argued that their lives had been inexorably constricted and their rights infringed by Section 377 of the Indian Penal Code, which provides for punishment including life imprisonment for "carnal intercourse against the order of nature with any man, woman or animal." Justices Sharad Bobde and Ashok Bhushan deferred judgment on the petition and referred the case to Chief Justice T.S. Thakur to determine whether a five member panel should consider the petition. (Click here)

UN experts: Brazil taking "negative steps" in commitment to freedom of opinion

Recent measures taken by Brazil's interim president, Michel Temer, are "negative steps for a country known for its solid commitment to freedom of opinion and expression," according to a joint statement by UN Special Rapporteur David Kaye and OAS Inter-American Special Rapporteur on freedom of expression Edison Lanza. Several recent actions by Temer's government have caused concern, including the termination of the chief executive officer of the Brazilian Public Broadcaster (EBC) in May. The executive was reinstated in his position after appealing to the nation's highest court, but several journalists' contracts were terminated in this time because of an alleged political bias. The government also merged the National Controller’s Office (CGU), into the Ministry of Transparency, Monitoring and Oversight. The experts say this is troubling because the CGU played a critical role in promoting access of information in Brazil. According to news reports, Temer will also introduce a bill in the legislature that would dissolve the EBC's council and enact budget cuts that would lead to the shut down of TV Brasil. The human rights experts wrote that "“Brazil is undergoing a critical period and should ensure it preserves the progress it has made in the promotion of freedom of expression and access to public information over the last two decades."

Puerto Rico defaults on debt as Obama approves restructuring

Puerto Rico pushed a record amount of its bonds toward default by declaring a moratorium on debt payments after Obama signed a law sheltering the island from bondholder lawsuits as it seeks to arrest a financial collapse. It will mark the first time the US territory has failed to pay on its general obligation bonds, a $13 billion swath that the island’s constitution says must be covered before other expenses. Governor Alejandro Garcia Padilla announced the decision as Obama enacted legislation to install federal oversight of Puerto Rico and extend it the power to cut debts in court, potentially strengthening the commonwealth’s ability to wrest concessions from recalcitrant investors. The island and its agencies owe about $2 billion on various securities Friday.

Slowdown in merger deals attributed to political uncertainty

Mergers and acquisitions bankers and lawyers pegged the decline to concerns about antitrust regulation, the United States presidential election and last week’s Brexit vote.

Judge orders McKinsey to disclose confidential client roster

Corporate turnaround guru Jay Alix prevailed Tuesday in his long-running battle with consulting giant McKinsey & Co. Alix, who made his career helping distressed companies shed debt and shore up their bottom lines, has accused McKinsey of failing to follow bankruptcy rules by keeping secret the client relationships that could create conflicts of interest in its work advising bankrupt companies. McKinsey denies wrongdoing and has accused Alix of trying to cripple a rival to the consulting business he founded several decades ago. But an airing of the dispute Tuesday before US Bankruptcy Judge Kevin Huennekens, who is overseeing the chapter 11 restructuring of McKinsey client Alpha Natural Resources Inc., ended in a victory for Alix.


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