Leading IPO Attorneys Unanimously Think China Will Be a Major Contributor t0 2011 IPO Issuance

KCSA Strategic Communications conducted a survey and found that the United States is losing its position as the global leader for IPOs.

KCSA conducted an in-depth survey of approximately 50 securities attorneys whose firms advised on 75 percent of the initial public offerings listed on major U.S. exchanges in 2010. According to the results of the independent survey, 71 percent of securities attorneys think the U.S. is losing its share of global IPOs.

"The simple fact is that as the U.S. regulatory environment has become more restrictive, other global exchanges have become more sophisticated and liquid and therefore have gained market share," said Joshua Ford Bonnie, Partner, Simpson Thacher & Bartlett. "Given the difficulties of listing in the U.S., more foreign companies are choosing to list on their home exchange."

"This data confirms that as transaction activity continues to erase geographic boundaries, it is imperative that companies take into account the various audiences with whom they communicate," noted Jeff Corbin, CEO of KCSA Strategic Communications. “Regardless of where investors are located, here in the U.S. or overseas, clear communications transcends language barriers and helps companies achieve a fair valuation."

Despite the U.S.'s declining share of global IPOs, the survey respondents unanimously agree that China will be a strong driver of U.S.-based IPO issuance in 2011.

“We expect that Chinese companies will, at least in the near-term, continue to list on U.S. exchanges due to the more clearly defined listing rules and regulations and the perceived stability and prestige of the U.S. markets," commented Colin Diamond, Partner, White & Case.

In addition, the attorneys surveyed expect increased IPO issuance from other foreign countries.

When asked which foreign countries will drive global IPO issuance, 37 percent of respondents said Brazil and 30 percent said India.

Private Equity backed companies are also expected to dominate the IPO landscape in 2011, according to 74 percent of attorneys surveyed.

All in all, sentiment for next year's IPO market is highly positive, with 77 percent of those surveyed anticipating a stronger IPO market in 2011.

"Over the course of 2010, the IPO market changed significantly. In 2011, we will continue the breathtaking pace of 2010's fourth quarter," commented Richard Truesdell, Partner, Davis Polk & Wardwell. "This is likely driven by the overall improvement in the economy, stabilization of the capital markets and pent up demand for equity offerings."

While the strict regulatory regimes of the early 2000s that led to Sarbanes-Oxley may have had a profound impact on pre-IPO companies, 81 percent of those surveyed think that the Dodd-Frank bill will have no impact on IPO issuance in 2011.

"There is a significant number of companies that are preparing to go public, should go public and most likely will go public in the U.S. markets regardless of increased regulatory requirements," said Michael Littenberg, Partner, Schulte Roth & Zabel. "These are in many cases high quality companies that are at the point in their life cycle where being public makes sense."

Other key findings from the survey include:
a. Better Valuations: 11%
b. Good Market Performance: 18%
c. Increased Demand: 29%
d. Investor Confidence: 20%
e. Strong Pipeline: 22%
What industries are driving IPO issuance?
a. Consumer/Retail: 11%
b. Financial Services: 7%
c. Green Tech: 6%
d. Internet: 10%
e. Life Sciences: 20%
f. Natural Resources: 10%
g. Technology: 28%
h. Other: 9%

(Image curtesey of Swadron)

Tweeting in the courtroom? Yes we can!

The Lord Chief Justice in the UK allows journalists to report some court proceedings by using Twitter, texting and email. He made it clear though that it would not happen if it could influence witnesses.

Media organizations and journalists can now apply for permission to use social media on a case-by-case basis. Non-journalists could still be barred in order to ensure the "proper administration of justice". This would prevent distractions in court and limit the potential for interference with courts' own recording equipment. The guidance applies only to courts in England and Wales.
For now, anyone who wants to tweet in court needs to get the judge’s permission. In criminal trials tweeting will quite likely be forbidden when there is a risk that witnesses who are out of court would be able to find out what is happening inside.

The Lord Chief Justice explained: "The judge has an overriding responsibility to ensure that proceedings are conducted consistently with the proper administration of justice, and so as to avoid any improper interference with its processes. There is no statutory prohibition on the use of live text-based communications in open court. But before such use is permitted, the court must be satisfied that its use does not pose a danger of interference to the proper administration of justice in the individual case. Subject to this consideration, the use of an unobtrusive, handheld, virtually silent piece of modern equipment for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court is generally unlikely to interfere with the proper administration of justice."

Interesting enough, the Twitter guidance comes days after WikiLeaks Assange's court hearing. Mr Justice Ouseley ruled during that hearing that supporters and journalists should tweet about was happening in real time. At an earlier bail hearing, district judge Howard Riddle did allow tweeting from Westminster Magistrates Court, saying journalists could send messages if they were discreet and did not interfere with the judicial process.

If the same policy would apply to let video cameras in court, justice would be seen on TV, online and on mobiles. Is this the way to go?

On the other side of the Pond, U.S. District Judge Thomas J. Marten allowed in 2009 a reporter to Twitter court proceedings in a trial of six Crips gang defendants taking place in his Wichita, Kansas courtroom.

"The more we can do to open the process to the public, the greater the public understanding," the judge said when asked about lawyers' concerns that jurors might be influenced by the tweets.

So where will it end? Does tweeting serve a purpose in court room?

To quote Andrew Cohen: “The difference between a reporter tweeting in the courtroom and a reporter doing the same during the breaks and phoning it in is not that great."

Ita Est

(Image courtesy of MorganPR)

Juridisch advies betreffende de aangekondigde KPN verkeerstarieven

Vele bedrijven hebben onlangs een brief ontvangen waarin KPN een vereenvoudiging van haar verkeerstarieven vaste telefonie heeft geïntroduceerd.

Voordat een bedrijf zich verbindt met een meerjarig contract, is het van belang te weten dat bestaande kortingen van een CPS provider vervallen bij het aangaan van een 2 en 3-jarig KPN contract.

Verder kan een bedrijf ook met aanzienlijk hogere belkosten geconfronteerd worden.
Afhankelijk van belgedrag kunnen de kosten met 5 tot 10% toenemen.

Indien er niet tijdig gereageerd wordt op het KPN aanbod in de brief, gaat automatisch een geldig jaarcontract van start.

Wat dit inhoudt?

• Starttarieven gaan omhoog met circa 39%;
  
• Verhoging van abonnementskosten, inclusief tarieven voor nummerblokken en doorkiesfaciliteiten;
  
• Het nieuwe contract gaat 1 januari 2011 in, en wordt jaarlijks automatisch verlengd;
  
• De betalingstermijn wordt teruggebracht van 21 naar 14 kalenderdagen.

Als juriste raad ik u aan om de tijd te nemen om verschillende opties te overwegen voordat u zich vastlegt.

Indien u de antwoordkaart voor 31 december retourneert met “Ik wens geen jaarcontract en ontvang geen kortingen op al mijn telefoongesprekken” heeft u ook in het nieuwe jaar uitgebreid de tijd om te berekenen welke aanbieder voor u het meest gunstig is.

De beste wensen voor een succesvol 2011

Google launched its improved copyright plan

Google (GOOG) pledged to change its policy and to act on copyright takedown requests within 24 hours. According to the Digital Millennium Copyright Act (DMCA), content hosting sites are generally not held responsible for infringing material on their sites providing they immediately follow up on takedown requests.

"As the Web has grown, we have seen a growing number of issues relating to infringing content. We respond expeditiously to requests to remove such content from our services, and have been improving our procedures over time," Kent Walker, Google general counsel, wrote in a blog post. "But as the Web grows, and the number of requests grows with it, we are working to develop new ways to better address the underlying problem."

Starting with Blogger and Web search, Google announced that it will build tools in Blogger and Google search to make it easier to submit DMCA takedown requests.
Walker promised that Google will reduce its average response time to 24 hours or less for copyright owners who use the tools responsibly. Google will also improve its "counter notice" tools for people who think their content was wrongly removed.

Google will also improve its AdSense anti-piracy review. Apart from banning AdSense on websites with pirated content, Google will also identify violations.

Google is also looking for ways to make authorized content (e.g., music clips) easier to index and to search for, which is applauded by the Recording Industry Association of American (RIAA). Mitch Bainwol, chairman and CEO of the RIAA, wrote in a blog post. "We look forward to working with Google on all the steps necessary to effectively combat infringement."

Geoff Taylor, the chief executive of music industry body the BPI, also welcomed the new Google policy. However, he noted that further to eliminate digital piracy should be taken. He stated that Google search overwhelmingly directs consumers looking for music and other digital entertainment to illegal sites. He urges Google to work together with the BPI to find a "technical solution that points music fans to sites that reward artists and everyone involved in creating music".

(Image courtesy of Google Public Policy Blog)

How The Use of Social Media Can lead to Mistrials

Do AV Software providers have an anti-trust case against Microsoft?

Many anti-virus software companies are upset with Microsoft (MSFT). The Redmond-based behemoth recently distributed AV software through a Windows' update service. Starting 11/1, Microsoft began offering Security Essentials to PCs running Windows XP, Vista and Windows 7 that lacked antivirus software.

Trend Micro questioned Microsoft's decision to offer its Windows users free Security Essentials software through the operating system's patching and program update services. Trend Micro’s Carol Carpenter commented: "We're concerned that Microsoft may be using its OS-based market leverage to box out other choices. If that were to happen, it would not be good for consumers or the industry. "Commercializing Windows Update to distribute other software applications raises significant questions about unfair competition."

Panda Security was also quite verbal about Microsoft’s AV download. Luis Corrons, the director of Panda's research lab, lamented: "If [Microsoft's] objective is truly to protect users from malware, then why doesn't Microsoft allow [Security Essentials] to install in pirated copies of Windows? He went on to claim: "Microsoft should make a serious development effort to secure the OS from the ground up, and not limit the security tools currently available to its users." Sour grapes, anyone?

From a legal standpoint, does Trend Micro cum suis have a case against Microsoft? According to Hillard Sterling, a partner with the Chicago-based law firm of Freeborn & Peters, not really. "It would be a long shot at best. It would be difficult if not impossible to show any anticompetitive impact." In other words, they don’t have a (legal) leg to stand on.

Since the Microsoft download is optional, it does not form any barrier to competitors. As we all know (free) security products are available from a multitude of channels e.g., from websites offering free downloads, such as AVG and tucows or from media websites such as CNET.

Furthermore, Microsoft does not prevent other companies from getting their products onto PCs, nor does it prevent installation of other providers’ security software on new PCs.

As Sterling points out, having a competitive leverage is a far cry form posing an antitrust violation. As he quite correctly emphasized: “Antitrust laws are designed to protect consumers, not competitors." The Obama administration has been cautious about antitrust litigation, especially in the technology sector.

Also in the EU things are not that simple for the AV companies. As Microsoft knows too well, the European Community has aggressive antitrust regulators, but does not hinder competition.

The conclusion is that AV providers have to live with the uncomfortable truth that they cannot fight Microsoft on antitrust issue. May be providing a superior product is the way for AV providers to go?

Lawyer sues Yellowbook for misspelling “justice”

Manuel de Castro, a Sioux Falls lawyer, is suing Yellowbook for a mistake in his advertisement in its phone book. De Castro ordered a half-page color ad with the headline “The Trial Lawyer Fighting For Your Justice”.

The lawyer was not amused when he found out that the published ad read "The Trial Lawyer Fighting For Your Justics". Furthermore, a hyperlink appearing under his name directs users to a defunct website.

Although Yellowbook never showed a copy of the ad before going into print, and also took responsibility for the mistake, they still want De Castro to pay in full. When he didn’t pay, the company threatened to take him to a collection agency.

To me, this doesn’t make any sense, since the amount ($6,780) is small for a company such as Yellowbooks, which is part of the Yellgroup. It also harms their brand, and therefore their business. Last but not least, it’s not wise to cross swords with lawyers – they thrive on lawsuits.

Mr. de Castro promptly sued Yellowbook, asking a jury to award him $6,780 for the ad, lawyer fees, and damages resulting from "humiliation and loss of business." As he explained: “All things being equal, when someone looks for a service in the phone book, they're going to choose the person that knows how to spell." Excellent point, confrere!

Yellowbook's PR person, Elizabeth Opacity of the PR company Weber Shandwick , gave the standard PR spin reaction: "the company doesn't comment on pending litigation". Yawn.

My (free) legal advice to Yellowbook: settle this issue quickly and discretely. In the mean time, Mr. de Castro, enjoy your free publicity courtesy of Yellowbook.

The Drive-thru law firm - gimmick or new trend?

The Kocian Law Group has opened a drive-through office in an old Kenny Rogers Roasters.

The Kocian lawyers are keeping the drive-thru window to use it as an easy and efficient way to exchange documents and to give clients quick advice. A paralegal working at the window hands out documents and answers questions. Consultations and meetings with lawyers are scheduled for the office.

According to attorney Nick Kocian, it's convenient for his clients. He explained: “We represent a lot of injured people. If you have somebody who's in a wheelchair or somebody who's hurt, it's convenient." He also has several clients who visit the firm once a week to pick up workers compensation checks.

“We have drive-thrus for ATMs and we have that customer convenience. Why not a law firm?” he added. Kocian wanted to make things convenient for customers to easily drop off and pick up documents. “They really love it. It’s convenient for them,” said Rosa Castillo, one of the firm’s paralegals.

This is the first drive-thru legal service in Connecticut and possibly the country. Besides the drive-thru, the firm is also open during nights and weekends. "It's really something that law firms should have done a long time ago," said Kocian.

Most lawyers quite like the idea. Lawyers, Tigers, and Bears (a legal blog) wrote: “You know, this is a pretty good idea. I know when I practiced, there were many times when I had to have someone come by to pick up a check or sign something. And I had free surface parking--with a lot of downtown firms, parking and traffic is a total pain in the ass. Having a paralegal available is very good, and you can have extended hours. Hmmm. Now, for corporate law firms, this isn't needed--but if you have a lot of regular clients, this might be a pretty effective option for a firm.”

But Elie Mystal lamented: “If it makes sense to turn law firms into fast food joints, then it would make sense to turn law school into a six week correspondence course.”

In my opinion, it’s a great idea for various reasons:

• It makes clever use of the drive-thru feature of the building

• It makes optimal us of paralegals

• It is client-friendly

• It is a great marketing & PR tool

I wonder how many law firms will follow…….

(Image courtesy of NBC Connecticut)

The Case of the Desperate Would-Be Lawyer

As every lawyer can tell you, finding a job is not easy. Clever would-be lawyers try to stay ahead of the competition in innovative ways. One of the more creative efforts is this YouTube clip:



Personally, I like to see him rap in front of a bookcase and would have covered Pinocchio with a picture of the Supreme Court justices. The rapper seems to be Tommy Severo, winner of a "Beauty and the Geek" season. He is a graduate of Suffolk University Law School.

Personality, I quite like it. As one commenter pointed out: "Why not? You're clearly not going to big law firms or even mid-sized law firms if you're not there upon graduation, so maybe some quirky criminal defense firm sees this and emails the guy."

Indeed, hiring a young, eager lawyer with savvy marketing sense is not a bad idea.....

Landmark Supreme Court ruling on pre-nups

The Supreme Court ruled for the first time that prenuptial agreements should have "decisive weight" in English divorce courts. They are binding providing they are fair.

The pre-nup in question was signed by Nicolas Granatino in Germany when he married German heiress Katrin Radmacher in 1998 after meeting her in the Tramps nightclub. The couple got married in Westminster and had two daughters, now age ten and seven.

French-born Granatino was an investment banker at JP Morgan until 2003, when he quit his banking career and is annual earnings of £330,000 to become a £30,000-a-year researcher at Oxford University. He kept on enjoying the good life at the expense of his wife. The couple parted ways in 2006.

Granatino was seeking £6million in a divorce settlement. Although he had agreed not to make any claims on her fortune if they split up, he was awarded £5.85m for his own use by a high court judge in 2009.

But due to the current Supreme Court ruling, he has to settle for “only” £1m and the use of a £2.5m home until his younger daughter is 22. Radmacher’s wealth is estimated at more than £100m, largely inherited from her family’s paper firm.

The Supreme Court ruled that the prenuptial agreement that Radmacher signed with her ex-husband to protect her fortune should be binding in England, even though it was signed in Germany.

Both parties were well represented. Radmacher's legal team included Ayesha Vardag, one of London’s famous divorce solicitors, and the eminent QC Richard Todd. Granatino’s legal team included Fiona Shackleton and Nicholas Mostyn, QC, who represented Sir Paul McCartney against Heather Mills.

Unlike the US and the rest of Europe, prenuptial contracts had little force in divorce settlements in England. Marital assets are normally divided equally between the former spouses.

Interest in prenuptial agreements is at an all-time high, also due to the rise in second marriages. Spouses have children and assets to protect from their previous marriages.

Before tying the knot, get a pre-nup. If everything goes well, you never need it. In case you and your spouse do break up, it is one thing less to fret about…..

(Image courtesy of www.funfacts.com.au)

Trademarks in the guitar industry

A trademark can be a name, a logo, a product shape or any visual element that is distinctive of a product and distinguishes it from its competitors. Famous elements are “the swoosh” of Nike and the Coca-Cola contour bottle. In DavidonTM’s blog “Three Chords and a Lawsuit: A Brief History of Guitars and Trademarks” of Jeffrey Davidson, trademarks in the (highly competitive) guitar industry are analyzed.

The first infringement case involved Fender Guitars. Fender originally named its current Telecaster guitar “the Broadcaster”. During the transition period, Fender sold a small number of Broadcaster guitars without a sticker. These no-name guitars are rare and premium goods in the vintage guitar market.

However, Gibson and Fender, the market leaders and manufacturers of the legendary and iconic models, chose not the challenge copycats, unless they are virtually identical to their originals. Most copy guitars are low-cost and foreign-made.

Ibanez started out as copyist and was faced with so many infringement threats, that it started to develop its own models. In true poetic justices, their own models are now targeted by copycats.

To protect themselves from copycats, elite guitar started to certain specific elements of the guitars. Gibson energetically enforces its rights in the "open book" design at the top of its guitar headstocks. Fender protects headstock shapes, and especially those of its iconic Stratocaster and Telecaster models. Paul Reed Smith protects its headstock, its signature “birds in flight” fretboard inlays, and the beveled edge of its cutaway. Rickenbacker has protected both body shapes and headstock shapes of its guitars for decades now.

It shows that the (legal) devil is indeed in the details…

(Illustration by Long for Robotech, the role-playing game, showing the LV-1200 Stratocaster Bass Guitar)

Google's Chinese Legal Trouble

Google finds itself in hot water again – this time from a Chinese novelist. Mian Mian, a counterculture writer known for her lurid tales of sex, drugs and nightlife, has filed a lawsuit against Google for scanning her latest novel "Acid House" without permission and putting it in its online library. Mian Mian is quite a colorful character (the pic is a file photo). Based in Shanghai, she shot to fame in 2000 when she published the novel "Candy," which caused a stir with its graphic depiction of heroin use. Most of her work is banned in China, though pirated copies are widely available. “Candy” is translated into English and widely available for purchase online.

At the court session, which consisted of a two-hour hearing, a Beijing judge told the two sides to hold talks on a settlement. Mian Mian is seeking damages of 61,000 yuan ($8,950) and a public apology.

A Google spokeswoman in Beijing, Marsha Wang, said the company removed Mian Mian's works from its library as soon as it learned of the lawsuit, adding that Google had no further comment on the suit or Tuesday's hearing. She added that Mian Mian's lawsuit was the first that she knew of in China over the scanning plan. The company has removed Mian Mian's works from its libraray.

Mian Mian’s lawyer stated that a negotiated settlement was a possibility and the court set no deadline, adding "we think even if they remove Mian Mian's work, their previous behavior is a violation of her rights. We demand a public apology."

This is the latest snag in Google's efforts to crate an online library, where printed works are available online. Previously, Google was under attack from writers in the United States and Europe (among others). Google reportedly has already scanned more than 10 million books, many of them still under copyright. Google negotiated a $125 million settlement last year with American authors and publishers, and it trying to avoid potential copyright infringement in Europe by only books scanning books over 150 years old. The European Commission said in October 2009 that it might change copyright law to make it easier for companies such as Google to scan books and distribute copies over the Internet.

In China, the China Written Works Copyright Society (a government-affiliated group) is taking on Google and negotiating compensation for Chinese authors whose work is scanned into its library. Mian Mian however, doesn have any connection to the Chinese writers' group. Commenting on Mian Mian's lawsuit, the group called on Chinese writers to band together to negotiate terms with Google instead of suing. It said it is due to hold settlement talks with the company in January. According to the group, Google has scanned more than 80,000 works by Chinese authors into the library.
It will be interesting to see how the Google’s Chinese troubles will pan out….