Archive for May 2015

Bulletin for Pensions Managers

Welcome to the March/April 2015 issue of our Bulletin for Pensions Managers. This issue covers developments to the end of April 2015.

In this issue:

1. Pensions news
2. Pensions finance
3. Pensions litigation
4. Mayer Brown events
5. Dates to note over the next 12 months

click here for the full update

Legal developments in construction law

We are delighted to share our latest Construction Legal Update.

Key topics in this update include:

Current issues
1. Procurement award challenges – the disclosure dilemma
2. On-demand bonds – pay now, argue later?
3. Court of Appeal axes 20 year service life obligation for turbine foundations
4. CDM 2015 – and what if it all goes to penalties?
5. Building Regulation changes in October
6. CDM 2015 – the HSE client short guide and construction phase plan

The update can be accessed here.

UK Employment Law

Episode 71The View From Mayer Brown

The three recent cases reviewed by Nick include cases on age discrimination , whether an employer could dismiss an employee after he had disobeyed an instruction not to contact the ICO, and whether a disciplinary hearing should have been adjourned in the light of grievances raised by the employee.

To follow Nick on Twitter, please go to Nicholas Robertson@NicholasRober11 to receive links to all the cases mentioned.

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UK Pensions Law

Episode 14The View from Mayer Brown

Richard Goldstein talks about the problem of overpayments, including the trustee duty to recover overpayments, correcting overpayments, possible defences that may be raised to a recovery attempt, the approach that the Courts generally take to recovery of overpayments, and what happens where an overpayment is not recovered.

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UK Employment Law

Episode 70The View from Mayer Brown

Nick looks at three important recent cases. One case looks at whether an employer can ever rely on a final written warning which was given in bad faith. The second looks at the Tribunal’s powers to exclude evidence which is of limited relevance to a discrimination claim. The third case looks at awarding costs against a claimant who currently lacks the means to pay the costs award. To follow Nick on Twitter, please go to Nicholas Robertson@NicholasRober11 to receive links to all the cases mentioned.

(If you're having trouble playing the podcast, please download it.)

To keep a record of what you have listened to, please register here.

The Trade Secrets Directive: A new framework to protect confidential information

In November 2013 the European Commission published proposals for a Trade Secrets Directive with the intention of improving the protection of information that is fundamental to the success of many businesses. The final draft of the Directive is expected to be published mid-2015 with each member state required to implement the Directive into national law within two years.

Currently trade secret laws are inconsistent across Europe and where the legislature has built in protection for commercially sensitive business information, it is often unconsolidated and complex: In Germany trade secrets are protected by scattered provisions in different laws and regulations and in the UK trade secrets can only be protected under the umbrella of the tort of breach of confidence in common law. In pursuit of the EU’s 2020 vision to create a community-wide freedom to innovate and to exploit trade secrets, the European Commission aims to consolidate trade secret law across all members states. The Directive introduces a multitude of harmonisation provisions, which includes a basic description of what constitutes a trade secret. The creation of a legally enforceable right to protect confidential business information, which already plays a pivotal role across many industries, could result in a major shift in the way intangible asset portfolios are valued.

Proposed changes
The draft Directive:

  • Defines a “trade secret” as any information that is secret, has commercial value because it is secret, and has been subject to reasonable steps to keep it secret;
  • Establishes a set of circumstances in which conduct could be considered unlawful, particularly the acquisition, use, or disclosure of a trade secret;
  • Preserves the confidentiality of trade secrets during litigation proceedings. This includes restricting access and references to the trade secret in hearings and documents and the making available of non-confidential versions of judicial decisions;
  • Allows those who wish to exercise their rights in relation to their trade secrets two years to initiate legal proceedings. This two year period will start on the date on which he or she became aware, or had reason to become aware, that the last fact giving rise to the action occurred;
  • The remedies available to someone who has had their trade secret unlawfully acquired, used or disclosed include damages, cessation, destruction and prohibition of the use or disclosure of the trade secret.

How does this differ from the current UK law on trade secrets?
There is currently no trade secrets legislation in the UK. Actions relating to trade secrets must be brought under the tort of breach of confidence, and whilst the protections afforded at common law are similar to those proposed in the draft Directive, it should be easier for trade secret holders to take action against infringers under the draft Directive than under UK common law. For example, the sale of infringing goods, i.e. those created using a trade secret, should be much easier to stop under the Directive than can be currently achieved under the common law.

Criticisms
The proposed definition of a trade secret is very broad. Whilst it is similar to the definition of a trade secret in the WTO Agreement on Trade Related Intellectual Property Rights, further clarification is needed on what constitutes “commercial value” and “reasonable steps”. Currently, the definition arguably includes any commercially sensitive information held by an organisation, meaning that it will be very difficult in practice to guarantee that the use of information doesn’t infringe someone else’s rights.

Following the implementation of the Directive, there may be an increased number of disputes between businesses in the same sector over an organisation’s right to utilise what might otherwise be described as the general knowledge accumulated by employees who have changed jobs. A company could assert that a former employee knows a particular trade secret and that a new employer cannot take advantage of that information. With such a broad definition of trade secrets, transferring jobs within the same sector could become difficult for employees. An employee may not be able to use his or her particular skill set or competencies without exposing themselves to an action brought by their previous employer for breach of trade secrets legislation.

Finally, the importation of products into the EU that have been produced legally outside the EU may be affected by the Directive. Under the current draft of the Directive, an organisation will be able to bring a claim in the EU to have such products destroyed on the basis that the products infringe its rights despite being legitimately produced outside the EU. To overcome this risk, importers will need assurances from manufacturers that they have not acquired any trade secrets, which in practice will be very difficult to obtain.