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Jerôme Kerviel trader’s case: 19 December 2018

On 19 December 2018, the French Court of Appeal of Paris (RG 16/09186) stated that the dismissal of Jerôme Kerviel, French trader from SGCIB (Société Générale Corporate and Investment Banking), the investment bank of Société Générale is fair (on the basis of a gross negligence – faute grave).

This overrules the decision (jugement) of the Conseil de Prud’hommes (French jurisdiction dedicated to labour law) dated 7 June 2016, whereby the dismissal was considered unfair (i.e. without a material and true reason) (cause réelle et sérieuse). In this first instance, Jerôme Kerviel obtained not only €100,000 because of the unfair dismissal but also (i) €20,000 due to the vexatious nature of the dismissal, (ii) €18,083.32 as regards to compensation in lieu of notice (indemnité compensatrice de préavis), (iii) €1,808.33 in relation to unpaid vacation pay (congés payés), (iv) €13,609.23 in connection with conventional severance pay (indemnité conventionnelle de licenciement) and (v) €300,000 as to the unpaid bonus for 2007 (plus €2,000 in relation to article 700 of the French Code de procédure civile).

The ratio decidendi of the Court of Appeal of Paris is based on the characterization of the conduct of Jérôme Kerviel during his contract. The blames in the letter of dismissal are considered grounded by the Court of Appeal of Paris (even if previously been ruled purged due to the knowledge of them by the employer). In particular, the blame considered crucial by the Court is the taking of directional positions (i.e. at a highest analyzed value), while at the same time going over authorization (€50 billion for an authorization of €125 million for the whole desk only).

The Court of Appeal of Paris states however that the wilful misconduct (faute intentionnelle) is not characterized: Jérôme Kerviel did not mean to cause the loss of the estimated circa €5 billion. The position of the Court is in line with the statements of Jérôme Kerviel who considered himself as being part of a spur gear (as mentioned in his book “L’engrenage, mémoire d’un trader”). This decision gives a warning to the traders: taking inconsiderate risks could lead to a dismissal (with maybe prison), and at the same time a balance: a bank which loosens internal regulations (or admits implicitly / explicitly / or maybe intentionally some inappropriate derogations) cannot fully blame a trader.

The ratio decidendi of the Court of Appeal of Paris is also grounded on the force of res judicata (for res judicata pro veritate habetur – autorité de la chose jugée). This means that, once the decision is final, such a decision is considered as representing the judicial truth. Jérôme Kerviel was indeed convicted with offences (délits pénaux) by a distinct decision of the French Cour de cassation dated 19 March 2014 (Ch. Crim., pourvoi n°12-87416). In this respect, the Court of Appeal of Paris qualifies the force res judicata principle, as absolute. As a consequence, other civil French pending decisions are to be linked (and bound) by the decision of the French Cour de cassation. In this perspective, the conviction of the trader by the French Cour de cassation influes on, and binds the decision of the Court of Appeal of Paris, ruling the labor decision.

It should however be considered that the absolute feature of the force res judicata, as stated in the ruling of the Court of Appeal of Paris, should be subject to challenge. As such, since any legal concept, even considered as absolute, are, in a democratic country, subject to other legal concepts tempering (within the meaning of qualifying) such absolute rights.

It should also be considered that this characterization by the Court of Appeal of Paris is more in line with what would be acceptable in a context where the bank is considered as being itself in default, since being itself convicted by the French banking regulator – Commission Bancaire for the lack of control and monitoring of the trading systems.

In light of this, the Court of Appeal of Versailles ruled on 23 September 2016 (room 9 – RG: 14/01570) (ruling by a review of the case decided by the French Cour de Cassation dated 19 March 2014 (Ch. Crim., pourvoi n°12-87416)) that Jérôme Kerviel is only partially responsible for the prejudice caused to the Société Générale and convicts him to pay €1 million only (instead of circa €5 billion).

Up to date 19 December 2018

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The Wall Street Journal Reports Barron’s 2019 Top Adviser List

Greg Miller, CPA, CEO, Portfolio Manager and Co-Founder of Wellesley Asset Management, Inc., has been ranked #1 in Massachusetts for the fifth consecutive year on Barrons list of Americas Top 1,200 Financial Advisers. Featured in the March 14, 2019 edition of The Wall Street Journal, the Top 1,200 ranking is Barrons most comprehensive list of advisers which is published annually.

Following the ranking announcement, Greg Miller, a nationally recognised convertible bond expert with over 25 years of convertible bond experience, said, I am honored to have been ranked the top financial adviser in Massachusetts once again by Barrons. I believe this is a testament to our convertible bond investing strategy with the goal of principal protection, while at the same time, outperforming equities and fixed income over complete market cycles.

President, Portfolio Manager and Co-Founder of Wellesley Asset Management, Darlene Murphy, CPA, CFP, commented, It is truly an honor to be recognised again by Barrons as the top adviser in our home state of Massachusetts. This is a tribute not only to Greg Miller, but also to our team of professionals and to our loyal clients nationwide who inspire us to strive for excellence.

Michael Miller, CFIP, Chief Investment Officer added, We believe our success is directly related to investors concerns about possible upcoming market corrections and a desire for relative safety for their investments, while still pursuing equity-like capital appreciation. We believe properly selected convertible bonds offer this opportunity. In addition, convertible bonds are one of the few fixed income vehicles that have historically performed well during periods of rising interest rates.

To be nominated for Barrons Top 1,200 Financial Adviser listing, advisers must complete an extensive survey about their practice. Barrons also examines regulatory records, internal company documents, and 100-plus points of data provided by the firm. The criteria for inclusion are total assets under management and revenue generated, as well as the overall quality of the practice. Investment performance is not an explicit criterion, because it can be skewed by each clients appetite for risk. In many cases, the objective is preservation of wealth, rather than extraordinary returns.

About Wellesley Asset Management, Inc.

Wellesley Asset Management (Wellesley) is an SEC registered investment advisory firm located in Wellesley, Massachusetts specialising in the management of convertible bonds through separately managed accounts, mutual funds and a private fund. Wellesley is a trusted adviser to a diverse client base serving high and ultra-high net-worth individuals, registered investment advisers, institutions, pensions, and other investment professionals. Founded in 1991, by Greg Miller, CPA and Darlene Murphy, CPA, CFP, Wellesley invests in convertible bonds deploying absolute return-seeking strategies. Additional information about the firm is available at https://www.wellesleyassetmanagement.com/

About The Wall Street Journal & Barrons

The Wall Street Journal has been a trusted name since 1889 for unparalleled analysis and unique reporting of informing decisions that drive the world forward. Winner of 37 Pulitzer Prizes for outstanding journalism, the Journal includes coverage of U.S. and world news, politics, arts, culture, lifestyle and more. Barrons, published by Dow Jones since 1921, is Americas premier financial magazine. It is the trusted financial publishing brand that people active in the market turn to for information, ideas and insights they can use to increase their professional success and enhance their personal, financial well-being. The Wall Street Journal and Barrons are registered trademarks of Dow Jones & Company, Inc. All rights reserved.

Disclosures:

Past Performance is no guarantee of future results.

All investing involves risk, including the risk of loss. There is no assurance that any investment will meet its performance objectives or that losses will be avoided.

Rankings should not be viewed as representative of any one clients experience and should not be taken as an indication or guarantee of performance by Wellesley Asset Management and any of its clients. Rankings published by magazines generally base their selections exclusively on information prepared and/or submitted by the recognised adviser. Working with a highly ranked adviser does not ensure that a client will experience a higher level of performance or guarantee results.

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UAE Legal Update: Regulatory Alert (Healthcare)

Federal Law No.2 of 2019 – Using IT and Telecommunications in the Healthcare Sector

The United Arab Emirates Government Promulgate Federal Law No.2 of 2019 – Using IT and Telecommunications in the Healthcare Sector (“the Law”), which for the first time regulates healthcare data processed, controlled, transferred and stored electronically.

The Law contains 22 Articles, which includes, but is not limited to the creation of a central data base system, obligations in respect of data privacy and use of IT and telecommunication technology when processing, transferring and storing data. In addition, obligations are placed on media licensing, training and violations for breach of the Law.

The Law is unique insofar that it is the first federal privacy law relating to healthcare data and protection of personal and sensitive data in the UAE.

Healthcare providers, insurers, insurance intermediaries, third party medical claims administrators, technology companies in the healthcare space and others dealing with healthcare will need review an audit their current practices and comply with the Law.

The Law is expected to be gazetted in the coming weeks and will be implemented three months from that date.

BSA will provide a follow up detailed analysis of the law in due course.

About BSA Ahmad Bin Hezeem & Associates LLP

BSA is a law firm originally founded in Dubai with the primary mission of delivering top-tier legal services based on our comprehensive knowledge of local, national, and international law.

Since our inception in 2001, we have rapidly expanded to a leading full-service law firm, with offices throughout the Middle East and France. Our lawyers are internationally educated, bi-lingual in languages such as English, Arabic, and French, and dual-qualified in both regional and international jurisdictions, having rights of audience in every country within which we operate.

BSA is a law firm that truly reflects the energy and ambition of the Middle East.

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Law firm significantly strengthens Securities Litigation practice

Fox Williams has today announced that Andrew Hill, a dispute resolution partner specialising in securities litigation, has joined the City law firm. Andrew joined the firm from Stewarts Law LLP, where he was a partner.

Andrew is at the forefront of developing securities litigation in the UK, helping clients who are shareholders in UK public companies seek compensation when they have been misled. He drove the launch of the UK’s first such claim against a public company – the high-profile and ground-breaking case against Tesco PLC for a large group of institutional investors, following Tesco’s admission of a profit overstatement.

“We are delighted that Andrew has joined us. Andrew has deep expertise advising on complex, cutting edge and high-value litigation for sophisticated financial institutions and institutional investors including in group or ‘class actions’. His experience and capabilities complement our expanding dispute resolution practice and bolster our financial services sector expertise” said Paul Osborne, senior partner at Fox Williams.

“Andrew is a very experienced, accomplished and highly regarded litigator. He has been proactive in the new area of securities litigation in London. His expertise and proven ability in this area will enable Fox Williams to obtain redress for institutional investor claimants against public companies who mislead the market. Andrew is a valuable addition to the Fox Williams team,” said Gavin Foggo, head of the firm’s dispute resolution and litigation department.

Andrew Hill commented: “I am excited to join Fox Williams, a firm which already offers business clients a breadth and depth of experience and expertise that is an increasingly compelling alternative to the magic circle. Together, we can now help our clients protect the value of their investments, foster a more transparent market, and drive better corporate behaviour.”

Fox Williams has also appointed Adam Fortune, a barrister by background and an experienced litigator and arbitrator, to join the firm’s senior associate ranks. Adam has acted on a range of domestic and cross-border commercial disputes and specialises in corporate and investment banking litigation and IT disputes. He also has experience in civil fraud litigation and adds to the strength and depth of the firm’s offering to clients.

IP AWARDS - ADVISORY EXCELLENCE

Double wins for Burness Paull and Brodies at IP awards

Burness Paull LLP and Brodies LLP have scored double wins for their intellectual property teams at an international awards ceremony.

The Managing IP Awards saw Burness Paull named winners of the Scottish Patent Contentious Firm of the Year and also Scottish Copyright Firm of the Year awards at the event which took place in the Royal Lancaster Hotel in London last week.

Brodies was recognised for the seventh consecutive year, picking up the awards for Scotland’s Trade Mark Contentious Firm of the Year and IP Transactions and Advisory Firm of the Year.

Brodies’ IP team received the awards in recognition of excellence in innovation and specialist intellectual property work over the past 12 months.

Burness Paull’s IP practice is led by Colin Hulme, the only Scottish IP litigator ranked as band 1 in Chambers UK and as a “leading individual” in Legal 500.

He said: “The patents award is reflective of the ongoing work we are doing with AstraZeneca in the Court of Session and acting for both operators and major service companies on patent disputes in Scotland and internationally in the oil and gas sector.

“The breadth of our practice is underlined by the copyright award in recognition of our work for significant rights-holder clients such as the Harris Tweed Authority, Sky, PPL, PRS for Music and the enforcement of their rights across Scotland ensures we are the heaviest user of the Scottish IP Court by some margin.”

Robert Buchan, partner and head of Brodies’ contentious IP team, said: “IP continues to be critical in safeguarding the future of many businesses, encouraging innovation and improving the bottom line. This year we have worked on international patent and trade mark disputes and high value IP transactions, as well as using the local Scottish courts to successfully protect valuable IP rights.

“Receiving these awards from Managing IP for the seventh consecutive year is a great honour, and is testament to the hard work of the team at Brodies, not to mention our clients, who we thank for continuing to trust us with challenging and interesting mandates.”

About Burness Paull LLP:

Lawyers like data. So here are the numbers:

We have over 530 people.

We operate from three offices.

This year we have worked on over £42.8bn of deals in more than 60 jurisdictions.

And we have one goal. To be the Best Scottish Law Firm in the World.

But it’s not the numbers that make us special.

Don’t take it from us. Take it from our clients.

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Irwin Mitchell Charities of the Year 2019

The 12 month annual programme sees employees in each of our 13 UK offices vote for a good cause in the local vicinity to support through a range of fundraising events and voluntary work.

The initiative is part of the work of the Irwin Mitchell Charities Foundation (IMCF) an independent charity founded in 1997 which has since raised over £1.8 million for charities in the UK and abroad.

About Irwin Mitchell Solicitors:

Irwin Mitchell is unlike any other law firm. Nationally acclaimed, with a strong international capability, we offer a broad range of legal services to national and international organisations and institutions, small and medium-sized businesses and private individuals.

The firm was founded in 1912 by Walter Irwin Mitchell. With a concentration on criminal law, he aimed to provide the highest quality legal services to the general public from his small legal practice in Sheffield.

Today, Irwin Mitchell is the 11th largest law firm in the UK with one of the five largest Private Wealth teams in the country, operating out of 14 UK offices including a consulting office in Middlesbrough.

We currently employ over 2,500 members of staff, including over 1,000 legally trained personnel and have helped over one million clients in our 100 year history.

The Business Legal Services division is also the fastest-growing area of the firm, with an increasing number of global, national and regional companies choosing to work with us.

In 2012, we became one of the first companies to be approved as an Alternative Business Structure (ABS), allowing us to plan for growth and take advantage of the opportunities created by the changing legal landscape.