Duo interviewNew kids on the block: Rick & Richard

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And much more

Global viewHow to tame a wild horse:managing litigation

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Social MediaFaster than the speed of law

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Client interviewAppetite for innovation 1753 –D.E Master Blenders

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The Litigation Magazine of De Brauw Blackstone Westbroek // Issue 2 - July 2014

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Client interviewAppetite for innovation 1753D.E MasterblendersA duo-interview with Jacq-Anne van Olphen and Gertjan Kuipers International strategyWe should be where our clients areGaby Smeenk on De Brauw’s move to Shanghai

Social mediaFaster than the speed of lawSome background on De Brauw’s working groups

Partner interviewNew kids on the blockA duo-interview with Rick van ‘t Hullenaar and Richard van Staden ten Brink Global viewHow to tame a wild horseMartje Verhoeven-de Vries Lentsch on managing litigation

TechDE BRAuW iNTRoDucEs A DAWN RAiDs App

Media coverageDE BRAuWiN THE MEDiA

ColumnDEvELopiNg A quALiTy AND EFFiciENT LEgAL sTRATEgy

OpinionREsoLviNg MAss LiTigATioN?coNsiDER THE NETHERLANDs

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cALENDAR

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We stand beside our clients wherever they operate globally. Since 1871 this is the keystone of our focus. Whether in the Netherlands or abroad, we deliver a powerful corporate and finance practice, a centre of excellence in litigation and arbitration, and an unparalleled team of compliance experts.

Our role of trusted advisor is rooted in our history as a firm, and is integral to who we are today. From our home office in Amsterdam, we advise more than 70 per cent of the largest companies headquartered in the Netherlands. And we also stand beside our clients in their international transactions, litigation and compliance work. This is why we have offices in strategic locations like Brussels, London, New York, Shanghai and Singapore and why we work closely together with top-tier local counsel in all jurisdictions.

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client interview

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AppETiTE FoR iNNovATioN 1753

D.E Master Blenders 1753 has been located in the centre of Amsterdam - on ‘t IJ waterfront, a stone’s throw away from Central Station - since 2013. This choice of location fits the corporate philosophy: to be at the centre of the market. The consumer is the key to success. And Amsterdam is representative of the market’s international character and historically the epicentre of Dutch trade. Behind the Case talks about innovation and patents with Jacq-Anne van Olphen, Vice President of Legal Affairs at D.E Master Blenders 1753, and Gertjan Kuipers, partner at De Brauw.

Legal Affairs D.E Master Blenders 1753 closely involved in innovation processes

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Issue 2, July 2014

Discussing a patent can produce an excellent business case: new arrivals create a bigger market

client interview

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Jacq-Anne van Olphen joined the Douwe Egberts legal department in 1996. As Vice President of Legal Affairs, she now leads a team of more than 20 lawyers in 12 different countries. A demanding position at such a high-profile company? Van Olphen: “Oh no, I have the best job ever!”

How important is innovation in the corporate strategy of D.E Master Blenders 1753?Van Olphen: “Innovation and differentiation are the key business drivers for our organisation. Developing new brands, products and concepts is crucial in our market. ‘Growing Brands’ is one of our strategic spearheads.”

is senseo an exponent of that innovation strategy?“Most certainly, but not exclusively,” says Van Olphen. “Senseo has become extremely successful because we focused on the market and trends, rather than on our product. It was developed based on a convenience concept: making your own cup of coffee, an individual flavour, any time you like. And with worldwide sales of coffee machines totalling 26 million, Senseo remains a substantial product category. In our market - which has a strong consumer profile and brand loyalty - there is great variety in preferences: small versus big households, filter coffee versus espresso, and loyal consumers usually want their own coffee brand.” According to Van Olphen, the well-timed anticipation of the individuality trend has been the

strength, but many D.E Master Blenders 1753 divisions are involved in the innovation funnel of ‘go create’ to launch. Every ‘gate’ encounters moments where we, as a team, decide to proceed to the next phase. In addition to Legal and IP, that team comprises Research & Development, Supply Chain, Procurement, Value Chain, Finance and Marketing, of course.”

Hot innovation issue in recent years: L’or Espresso capsules for Nespresso® machines. What innovation is left to develop that would not infringe the 1700 patents Nestlé allegedly owns?Van Olphen: “Of course we knew that Nestlé would not let our capsule innovation for use in Nespresso machines pass unnoticed. After the launch of Senseo, we also tried to protect our innovation. We have been on both sides of the patent table. Together with De Brauw we looked at the possibilities of marketing our coffee in the capsule product category without

key to Senseo’s success. “But of course this doesn’t happen every day, marketing an innovative breakthrough on this scale,” she adds.

What place does Legal Affairs have in the chain of innovation processes at Douwe Egberts?“Our legal department is always very directly involved,” says Van Olphen. “We are small enough to quickly switch focus, and large enough to take care of practically everything. Supervision of acquisitions, review of marketing material, staff training, procurement, contracts, and advice on environmental permits: we have the complete range of legal expertise that D.E Master Blenders 1753 requires and more specific knowledge in the team when it comes to some specialised areas. If we do not have the necessary know-how in house, we involve external specialists like De Brauw.”She adds: “Marketing is the main factor driving our innovative

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We have been on both sides of the patent table

client interview

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infringing rights of third parties. This means primarily: doing a lot of market and legal research and making various assessments from a legal and litigation perspective. How likely do we think it is that we would have to withdraw prematurely?”

De Brauw’s Gertjan Kuipers adds: “This type of product launch naturally involves huge investments: product development, production lines, marketing and distribution. Considering the nature and life cycle of the existing patents, we certainly felt comfortable as advisors, in close consultation with the legal team at D.E Master Blenders 1753, in giving a positive recommendation to the board about a go to market strategy. I should mention that the CEO at the time asked us this

situations too. There should be a personal compatibility, and their legal expertise is a fact. We always look for relationships with professionals that do not merely bring in the legal expertise but also have a good feel for the business issues. As business opportunities tend to run parallel to patent law issues, we need De Brauw’s involvement.”

Was the launch ultimately your call, or was it joint advice?Van Olphen: “Together with De Brauw, I have a responsibility to be objective and scrupulous, and to be able to advise my board well. Evidently, the launch was a very critical moment, but we felt comfortable. In the end, Nestlé only brought up a few patents, an important part of which has already been revoked by the European Patent Office.” Gertjan Kuipers: “We did a lot of research with Douwe Egberts into legal and technical aspects, and based on that the client takes a calculated risk. For L’Or Espresso capsules, we looked for technical solutions with Douwe Egberts that would not infringe patents and could in turn be protected. From a business perspective, D.E Master Blenders 1753 does of course want a share in this market, but it also simply wants consumers to have more choice and to offer everyone the brand they know and love.”L’Or Espresso capsules were eventually launched in 2010, in France of all places. “In the lion’s den perhaps”, says van Olphen, “but more importantly, in the country with the highest number of espresso machines. Initially, we took a lot of time to come to a

question of conscience: “Would you stake your own money on this advice?”Van Olphen: “The answer was a definite ‘yes’, and we all supported the advice. De Brauw knows us well, going back to the launch of Senseo coffee pads 13 years ago. What is important to us is that we get along well, in international

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Issue 2, July 2014

What innovation is left to develop that would not infringe on the 1700 patents Nestlé allegedly owns?

Profile // Gertjan KuipersPartner at De Brauw Blackstone WestbroekT +31 20 577 1042E gertjan.kuipers@debrauw.comLink to profile

client interview

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sound decision, but now we are quickly and effectively rolling the product out in various countries.”

How ironic is it that, having had to protect senseo in the past, you now find yourself on the other side of the table with the L’or Espresso capsules?“Previous experiences are always helpful in establishing your position later”, according to Van Olphen. “Senseo has a clear consumer proposition and from an innovative point of view this was a big breakthrough. But as the coffee pad turned out to be hard to protect, more suppliers could enter the market. That turned out to be a blessing in disguise: it enabled us to market those 26 million machines with Philips, a multiple of the espresso machines sold.“

Van Olphen: “In the case of the Senseo pads, certain technical specifications turned out to be insufficient for patent protection. In the case of L’Or Espresso capsules, we found a nice technical solution which is innovative and protected by our patents. Our appetite for innovation and enterprising attitude means that we always want to market new products as quickly and carefully as possible. Don’t innovations sooner or later end up in discussions about patents?“No, because you do not automatically have patents on every product, so not everything gets protected”, says Van Olphen. “When it comes to innovations, the patent strategy plays an important role, but this does not have the same relevance for every product. A patent discussion may even lead to a very good business case: more newcomers will only help to create a bigger market.

But ultimately, a patent strategy of course aims to achieve protection for product innovations.”

De Brauw assists D.E Master Blenders 1753 in this case. What expertise does it need to have?Legal expertise at the highest level and a good knowledge of this market are obvious requirements. What we value in particular is a practical attitude: no endless documents that I did not ask for, just tell me in a few sentences what the key issue is. It is better to send brief advice that you are behind 100% than a hefty report explaining options but not deciding on any. And whether we enter new or existing markets, our advisers should be familiar with these, because an international network is essential to properly supporting us. De Brauw meets these four requirements, but we will continue sparring with each other to ensure that we can work together at this level”.

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Profile // Gaby SmeenkResident partner De Brauw Shanghai T +86 21 6157 5132 E gaby.smeenk@debrauw.comLink to profile

Gaby Smeenk is the resident partner of our Shanghai office. She explains: “One of the reasons why I have been given the opportunity to be the resident partner of our new Shanghai office is that I have been involved in many transactions for Dutch multinationals with Asian – Chinese or Japanese – counterparties over the last years. These transactions include the TV joint venture between Philips and the Chinese TPV and the sale of Robeco to the Japanese ORIX. Shanghai will in effect be a continuation of my practice in Amsterdam with the difference that I will be able to assist our clients even better by being on the ground with knowledge of the local market and how business is

We have several Chinese senior associates to be able to communicate and advise in Mandarin

WE sHouLD BE WHERE ouR cLiENTs AREIn conversations with our clients during the last year we have often heard that they will continue to expand their international activities to, among other areas, Asia. Our office in Singapore is therefore well positioned. But many of our clients’ activities in China are located in Shanghai. And because our strategy is to be where our clients are, we decided to open an office in Shanghai.

opinion // Gaby Smeenk >> Resident partner De Brauw Shanghai

conducted in the region”.Gaby continues: “In China it is essential to be able to communicate and advise in Mandarin of course. This is why we have several Chinese senior associates, both in Amsterdam and our offices in China. Our experienced Chinese associates have proven to be of great value in dealings between our Dutch clients and their Chinese counterparties by offering high quality advice in both English and Mandarin”.We have already supported Dutch companies in their activities in China from our office in Beijing for more than four years. During this time we have gained practical knowledge on the manner of doing business in China

and created a solid network of Chinese lawyers and other advisers. “It is now time to take the next step”, according to Gaby.Hengeler Mueller, also part of the Best Friends network, will be opening an office in Shanghai as well.

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social media

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Social media and online presence have evolved from a “nice to have” to a “need to have”. D.E Master Blenders 1753 and Philips realised this early on and approached De Brauw in 2011 asking if other clients were also trying to work out how to deal with the new phenomenon. They were, and wanted to join the discussion. Adidas, Danone, Heineken, Sanoma, Shell and PVH (Tommy Hilfiger/Calvin Klein) came forward and the Social Media Working Group (aka “SomeWing”) was born. The first meeting was held in February 2012, and two years later both social media and this working group are here to stay.

In new issues, you sometimes prefer user experience above authority guidelines

sociAL MEDiA: FAsTER THAN THE spEED oF LAWClients sharing experiences @De Brauw

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social media

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In social media, technological development and communication opportunities move at too fast a pace for codes of conduct and legislation to keep up. The cross-border nature of social media demands an awareness of global trends from clients. In the absence of guidelines, they have to anticipate international developments and industry self-regulation. For example, codes of conduct for advertising in social media already emerged in the US in 2012, and similar rules have been in force in the Netherlands since 1 January 2014. According to Philips, “In new issues, you sometimes prefer user experience above authority guidelines. Individual topics are easily shared. Different industries allow us to be very open”. “But if necessary, you keep things more in general perspective”, say PVH and Adidas.

clients decide what’s on the agendaSomeWing was created by and for clients, and accordingly its aim is to use the meetings to tackle obstacles that they come across on a day-to-day basis. Danone: “De Brauw is playing a useful role in removing these obstacles, and enables us to ask any question. The most important one: “What is it that I need to bear in mind and are not yet aware of?”

SomeWing meets four times a year and is supported on De Brauw’s part by Tobias Cohen Jehoram, Alex van der Wolk, and Margot Verbaan. Tobias Cohen Jehoram notes: “Not De Brauw, but the participants set the agenda. Depending on what is happening, the topics can be legal ones, but

The most important question: “What is it that I need to bear in mind and are not yet aware of?”

not necessarily.” A client: “These meetings exceed their legal value. We are also enhancing negotiation positions, exchanging know how and new contacts”.

The meetings are held either at De Brauw or at participants’ offices. Shell, D.E Master Blenders 1753 and Adidas have already hosted meetings. An outside expert is often invited to give his or her view on an agenda item, from a particular, non-legal angle. Recently, IT security experts Christian Prickaerts and Kevin Jonkers of Fox IT attended a meeting to make the participants aware of security aspects of the cloud. On another occasion, the country manager of Facebook, Arno Lubrun, responded to questions to give participants a better idea what opportunities Facebook can offer to businesses.

stay connectedEntirely in line with the social media concept, De Brauw also offers its own platform

for participants to exchange information and know-how and stay in touch. This type of knowledge sharing is innovative among law firms. Margot Verbaan of De Brauw: “Keeping clients abreast of all developments in social media requires more attention than simply having our meetings. The online platform Connect enables participants to keep up to date and interact outside the regular meetings. On Connect, we can share blogs with the latest developments, presentations and tailor-made products. And besides that, we touch base during short webinars.”

The essence: bringing together knowledge and experience, and giving legal advice on a subject that requires a specialist understanding of communication impact. De Brauw facilitates the process and discussions, and gives (or seeks) guidelines on the legal aspects of social media. This can be done by specific advice, but also by developing

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pensions René Maatman - LInk

sale and purchaseDaan Beenders - LInk

someWingTobias Cohen Jehoram - LInk

social media

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tailor-made work products at the participants’ request, such as a Social Media Code of Conduct and a Moderation Policy Model.The activities of this and other De Brauw working groups are all part of developing new forms of collaboration between De Brauw and our clients.

Knowing what is going on “If we want to continue providing services of the highest quality we should really know what is going on in our clients’ businesses and what issues they have to deal with”, says Alex van der Wolk of De Brauw. “That means listening more, being more intent on receiving than sending.

Global ComplianceLokke Moerel - Link

Global Data ProtectionLokke Moerel - Link

That is also the future for our profession: not only sharing our legal advice with our clients, but also our knowledge, contacts, and relationships. That is what the market wants, and we are adapting our services to that.” And this is how something new is created, taking its place alongside De Brauw’s traditional legal services: using the clients’ shared challenges to look for common solutions.

What do the participants think?Clients are enthusiastic. Danone: “We have to draft internal guidelines for our organisation, with a clear connection to use of social media and blog writing.

We want to know what the developments in social media are and what we need to take into account”. Sanoma: “Internet and social media touch the core of our services; as a publisher, we play a defining role in that. Sharing experience with others in a confidential and interactive setting is compact and of a high quality”. Adidas: “We hear peers struggling with similar topics. We learn from the general overview and legal aspects on social media. It’s good to bring specific services to specific clients in this setting. It’s good for clients, and it’s good for new clients too.”

stay relevantIn SomeWing, De Brauw brings clients together, facilitates, advises, and develops products. “But the overall objective is more important”, concludes Tobias Cohen Jehoram, “and the same goes for all initiatives that we as a law firm are taking for our clients. That is, stay relevant to your clients. Through market insight, legal knowledge, and answers to current issues. We see it as our mission to inspire people in our network by connecting them to each other, to relevant themes, and to legal solutions”.

global Records ManagementLokke Moerel - LInk

M&ATon Schutte - LInk

DE BRAuW WoRKiNg gRoups

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Using the clients’ shared challenges to look for common solutions.

Profile // Patrick Ploeger, Partner at De Brauw Blackstone WestbroekT +31 20 577 1955E patrick.ploeger@debrauw.comLink to profile <<

Patrick Ploeger, partner at De Brauw and one of the initiators of the app: “Clients want to prepare as well as possible for a dawn raid. A lot can be at stake, and during the hectic moments of a dawn raid, many things can go wrong. This app is an answer to our clients’ needs to have a clear overview of the process of a dawn raid and shows who should do what at what time”.

The app shows you what to do during a dawn raid and what follow-up steps to take after the raid. The app also provides practical instructions to receptionists and IT specialists at organisations undergoing a dawn raid and guidance on how to answer potential questions and on supplying confidential information. In addition, the app contains contact details of De Brauw’s dawn raid specialists who can assist during a dawn raid.

The app provides practical information on what to do and what not to do during a dawn raid by the European Commission, the ACM, DNB, the AFM, the CPB or the Public Prosecution Service.

DE BRAuW iNTRoDucEs A DAWN RAiDs App

Tech // Patrick Ploeger

An answer to our clients’ needs to have a clear overview of the process of a dawn raid

Download // The app is available for iOS - LInk and Android - LInk

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partner interview

In March 2006, at the age of 24, Rick and Richard started together in De Brauw’s training program for junior associates, De Brauwerij. As of January this year, both are now partners in the expanding Regulatory & Criminal Enforcement practice group.

NEW KiDs oN THE BLocK

Richard van staden ten Brink & Rick van ‘t Hullenaar // Partner: since January 2014Specialisms: Regulatory and criminal enforcement matters, including cross-border investigations. Personal: Richard lives in Oegstgeest, the netherlands, together with his wife karlijn and their son Scott (4). Rick lives in Amsterdam, together with his wife Marie-Christine.

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There is an enormous change in the Netherlands when it comes to investigations and prosecution of corporate crimes, particularly bribery

partner interview

To come straight to the point, you both made partner at the age of 32 in the same practice group at the same time. quite an achievement. Were you surprised? Richard: Well, obviously we hoped we would both make partner but as you can imagine, but it was actually quite exciting and nerve-wracking for us until the very last moment. So when we finally got the word, we sure did throw a party with families, colleagues and friends.Rick adds: We know that we have to keep expanding our Regulatory & Criminal Enforcement practice group to be able to advise our clients on their issues, now and in the future. De Brauw started this practice group 10 years ago, and since then there has been a continuously growing need. Having said that, it was not a foregone conclusion that both of us would make partner, so we were of course very happy to celebrate this professional milestone.

you have recently become partners, so a new job may not be the first thing that will cross your mind now. But if you had the chance to have another job for six months, what job would that be?Richard: Without doubt: working for a U.S. District Attorney’s Office. For me, it would be great to experience the “other side” and represent the U.S. government in the prosecution of criminal offences. Rick: I’m sure this guy would be a very thorough, uncompromising prosecutor. He would not be sensitive to soul-wrenching arguments. Not the type of prosecutor our clients would be happy with…

Richard (laughing): so what would you be doing then? Rick: Can I choose anything regardless of my skills and diplomas? Well, then I would definitely wish to be the principal conductor of the Royal Concertgebouw Orchestra for some time. When I was young, I played piano at a reasonable level. I seriously considered

applying to the conservatory but eventually I decided not to because I knew I would never be a virtuoso. I was not that good. And a career as a fulltime piano teacher was not appealing to me. All those parents bringing their kids to you every week, hoping that you can make them little Mozarts. So that did not work out. But music is still very important to me and I do still play the piano. Not only at home, but also in De Brauw’s house band. Well, I play keyboards there, so a bit different.

How do you see the future of the ‘corporate crime’ era? is there a trend that you spot?Richard: Yes, definitely. There is an enormous change in the Netherlands when it comes to investigations and prosecution of corporate crimes, particularly bribery. Rick: Until recently, the Netherlands hasn’t had an impressive foreign anti-bribery enforcement record. In a report >>

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partner interview

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Profile // Richard van Staden ten Brink Partner at De Brauw Blackstone Westbroek T +31 20 577 1922 E richard.vanstadentenbrink@debrauw.comLink to profile

Profile // Rick van ‘t Hullenaar Partner at De Brauw Blackstone WestbroekT +31 20 577 1616 E rick.vanthullenaar@debrauw.com Link to profile

that was unthinkable. Richard: It seems that the Dutch Prosecution Service is now more or less doing the same thing as U.S. and U.K. authorities, but what you see is that the public debate is different. While in the U.S. is it accepted and common practice for prosecutors to settle cases, in the Netherlands there are many voices, including in parliament, that cases must be prosecuted in court instead. I am not sure how this debate will develop over time, but one thing is for sure: criminal enforcement towards corporations is on the rise in the Netherlands, and the landscape has changed drastically.

Has your role as a lawyer changed over the years, too? Rick: Yes, definitely. Clients nowadays generally want to know if a situation is one way or the other. While everyone understands that each matter has different sides and angles, the “on the one hand, on the other hand” approach is actually no longer accepted. Richard: We are expected make decisions, to set the direction –and quickly. In the cases we’re dealing with, for example after a dawn raid, there simply is no time for long reflection overnight and the next day. Rick: One of the interesting elements in our field is that our

clients expect from us more than purely technical legal advice. Don’t get me wrong, I do not mean that it doesn’t happen in other practice groups, but I notice that we also give more strategic advice to our clients, about a host of topics that are more on the periphery of the legal advice.

one of the partners of your practice group, Marnix somsen, will be heading for New york this summer to start an enforcement practice there. How do you feel about this move?Richard: Our aim is to represent Dutch and European clients when they find themselves in often difficult positions when confronted with investigations and enforcement by U.S. and other foreign authorities. This is why Marnix Somsen will move to our New York office this summer. We are responding to our clients’ growing demand for assistance in Regulatory & Criminal Enforcement cases with a U.S. nexus. Rick adds: The U.S. authorities are increasingly shifting their attention to practices of non-U.S. companies abroad, for example in bribery cases. By assisting our clients in these matters from Amsterdam and – together with local firms – from New York, we will enhance the quality and depth of our services. And we expect our RCE practice to expand as a result.

We are expected make decisions, to set the direction –and quickly

issued a couple of months ago, Transparency International put the Netherlands in the ‘limited or no enforcement’ category. Recent developments clearly show that the Dutch authorities are determined to change this. We were recently involved in a number of cases where our clients reached million euro settlements with the Dutch authorities. Just a few years ago,

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DE BRAuW iN THE MEDiALaw firms in 2014: ‘De Brauw strongly in the lead’ De Brauw Blackstone Westbroek with its 285 lawyers is again this year the largest law firm in the Netherlands. The positions of law firms and notaries offices for 2014 were published on Friday, 21 March.

Martijn snoep in NRc: ‘Legal education should be broader’ Managing partner of De Brauw Martijn Snoep published an article in the NRC Handelsblad, along with four other managing partners of large law firms. They feel that students who have followed another degree program than a pre-law bachelor’s should be admitted to law school.

Advocatenblad: De Brauw is students’ favourite De Brauw received four of the six awards during the NJC Awards for best recruitment and employer branding. De Brauw was also elected favourite firm by students during the National Career Event.

De Brauw partner Jaap de Keijzer interim legal adviser KpMg boardKPMG has appointed Jaap de Keijzer as legal adviser for an interim period of one year. Jaap has been made available for 50%

of his time for this position by De Brauw. He will devote his time at KPMG to lead the restructuring and bolstering of KPMG’s legal department in the coming year and will work with the Executive Board to support and embed the governance changes being announced today.

The Lawyer: De Brauw confirms shanghai launchDe Brauw has announced that it is opening an office in Shanghai.

Arne grimme M&A lawyer of the year 2013De Brauw partner Arne Grimme has been named ‘Best M&A lawyer of the year 2013’ by the Dutch M&A Community.Arne received the award during the 14th edition of the M&A awards in Amsterdam. He was given this award because he has acted as lead partner in many significant M&A deals in 2013

global investigations Review: paul Hastings and De Brauw partners lead sBM offshore investigationDutch oil platform company SBM Offshore has discovered evidence of possible bribery involving foreign officials in Angola and Equatorial Guinea during an internal investigation. Partners Timothy Dickinson, Corinne Lammers, Kirby Behre and of counsel Jennifer Riddle at Paul Hastings in Washington, D.C. and De Brauw Blackstone Westbroek partners Marnix Somsen, in

Amsterdam, and Jaap de Keijzer, in Brussels, conducted the investigation. Paul Hastings hired forensic accountants from PricewaterhouseCoopers to help with the investigation.

The New york Times: De Brauw 7th most successful M&A law firm worldwide In 2013 our firm lead all Dutch league tables, based on both deal value as well as on number of deals. In Europe, we were ranked as the number 1 M&A firm, based on deal value. Worldwide, we were the 7th most successful M&A law firm, also based on deal value.

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Media coverage

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HoW To TAME A WiLD HoRsE

These days, litigation and compliance are some of the biggest risks for the average large multinational. Litigation in particular seems difficult to control, especially if you are on the defending side. After all, you cannot control who decides to sue you, right? And no matter how hard you try, you cannot control the outcome of the case, true? Having had a taste of US litigation during my time at Shell’s Global Litigation Group in Houston, I would like to share some thoughts on how to address these issues.

For some companies litigation can truly feel like trying to ride a wild horse – holding on for dear life, praying for it to be over

Managing litigation in Texas

global viewIssue 2, July 2014

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Living in Texas, rather than an analogy between litigation and a dragon that needs to be slain, it seems fitting to compare litigation to taming a wild horse instead. Because at times, for some companies litigation can truly feel like trying to ride a wild horse – holding on for dear life, praying for it to be over.

It is true that litigation can throw a company off, and there is rarely any real certainty. So how do you deal with that? Getting the best counsel there is and just roll with the punches? No. You try to manage that litigation. So how do you do that – how do you tame that wild horse?

First and foremost, let’s agree that we cannot control who decides to sue us, we cannot go back and change the facts, and there is no way we can be 100% sure about the outcome of a case. Such is life. What we can do, is find a way to deal with that and control how we respond to – or in other words: manage – litigation.

During my 6-month secondment at Shell’s Global Litigation Group, I experienced how Shell takes on this challenge. In September 2013, I went from external counsel at De Brauw in Amsterdam to in-house counsel at Shell in Houston. On the 45th floor of the One Shell Plaza. Instead of writing long briefs and threatening letters to counterparties, I have been managing litigation following Shell’s guidelines for its in-house counsel. Shell’s Global Litigation Group, set up in 2012 and consisting of around 70 in-

global view

Shell’s Global Litigation Group, set up in 2012 and consisting of around 70 in-house lawyers and approximately 65 professional support staff, lives and breathes litigation management

house lawyers and approximately 65 professional support staff, lives and breathes litigation management. Because much like running an operational business unit, Shell’s philosophy is that litigation too should be managed as a business. In order to do so, it has not only set up a separate in-house litigation department with experienced litigators, but also changed many of its processes. The three changes below can be implemented in any legal

department, and may help you to manage your litigation more efficiently.

First, early case assessment can enhance your grip on a matter from the start. It’s like getting that saddle up on the horse. The in-house litigator and the relevant people from the business identify the critical elements and the facts of the dispute, assess the business’ potential exposure, and determine the business objectives of the litigation. This guarantees the relevant people from the business are involved and engaged from the start, providing vital information on the dispute. Being aware of the business objectives and risks, it also enables the in-house litigator to determine the best route to resolution, including alternative dispute resolution options. Finally, and most importantly, this type of early case assessment ensures that the litigation is aimed at supporting the business, and it avoids merely litigating rights. At Shell, the results of the early case assessment are included in a case management plan. Conducting >>

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a full blown case assessment and drafting a case management plan may seem tedious and difficult at the start of a procedure, but having completed a case management plan at Shell myself, it made me reconsider some of my initial assumptions, re-assess some of the facts, and find more creative solutions. At De Brauw, I have also conducted several early case assessments for different clients, but the practice is by far not universal.

Another big litigation challenge revolves around costs. Not only the sheer amount is relevant here – predictability is just as important. As lawyers, we tend not to like surprises – let alone when we treat litigation as a

global view

Profile // Martje Verhoeven-de Vries LentschSenior associate at De Brauw Blackstone WestbroekT +31 20 577 1384 E martjeverhoeven-devrieslentsch@debrauw.comLink to profile

At Shell, the results of the early case assessment are included in a case management plan

business! Determining a budget based on the case management plan at the start of a case allows for cost control and monitoring. To stick with the analogy – you can consider these the reins. At De Brauw cost control takes the form of the Project Management & Budget Control tool that was discussed in the previous edition of Behind the Case.

The third and final tool is related to knowledge management – just like how you would conduct a thorough investigation and consult experienced horse trainers on how to tame the beast. Providing in-house lawyers across the globe with access to case-related information through one system can significantly

improve knowledge sharing. It also helps the overall tracking of pending litigation, and thus the assessment of risk. In addition, after action review allows the legal team and the business to share lessons learned and prevent repeat litigation. To enhance knowledge sharing between the in-house lawyers, Shell also holds case review calls. During such a call, a pre-selected case is discussed by the lead attorney, and colleagues can ask questions and provide creative input in an effort to identify new arguments or alternative ways to resolve the dispute. Also, an annual litigation conference is held, where all in-house lawyers meet and exchange views and share experiences. This allows the group to really tap its collective knowledge and share learnings between in-house lawyers that are working in different regions. At De Brauw, I have been involved in many knowledge sharing sessions, which always prove to be a great forum to exchange thoughts and lessons learned, and discuss specific scenarios that in-house counsel deal with on a daily basis.

I have seen and experienced first hand that the three tools above have worked for Shell. Hopefully they provide some inspiration and help you to tame your own wild horse.

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Issue 2, July 2014

DEvELopiNg A quALiTy AND EFFiciENT LEgAL sTRATEgy

Legal has a key role to play in recognising and managing devel-opments like these. Providing only reactive technical legal advice on a case by case basis no longer fits the bill. The strategies of legal departments are increasingly tailored to the specific organisa-tional needs. The Shell litigation story elsewhere in this publication provides a good example of that.Designing and implementing strategy may sound complicated for legal professionals, but it is actually pretty straightforward. Basically it means following a few sequential steps and aligning all choices along the way. First iden-tify all internal needs and external expectations, set the right priorities and define desired quality levels – your legal mission. Then analyse the organisation’s dynamics and decide on a matching approach with clearly allocated responsibili-ties, efficient tooling and appropri-ate staffing – your legal strategy. And then execute, monitor quality and efficiency and further refine the strategy along the way.

A simple illustration: when a technical project company grows in “difficult” countries, organising for compliance with bribery and competition standards will be one of your key responsibilities. You specify the current definition of adequate behaviour and set your company objectives accordingly – your legal mission. Next you select your strategy to achieve these objectives. Each business has its unique dynamics, so the idea of a universal “best practice” is shifting toward a tailored “best fit” strategy that matches the organisation’s unique defining characteristics. In our example two defining characteristics are the coordination principles (a decentralised organisation) and the personalities of key employ-ees (local management with short term sales incentives).

In this context a new top-down initiative from legal will prob-ably take too much time. A more practical path is aligning with an already operational method.

The relevance and methodology of SHE (Safety, Health & Envi-ronment) is fully accepted. By piggybacking bribery and com-petition on the SHE awareness, eLearning and training platform, implementation will be faster and acceptance will be easier. And in another practical move, the regu-latory content itself can be bought from a law firm that offers similar services to other international companies.

Just an example of a practi-cal strategy that increases ac-ceptance and saves resources. Obviously there’s much more detail to it, but it illustrates how a consistent approach to plan-ning results in a targeted, aligned, efficient legal strategy that is also pragmatic. This is not to say that achieving results is a walk in the park. Realizing impact requires creating awareness, softening resistance, monitoring progress and continuous refining - with lots of devil in the details. But that’s for some other time.

“We used to provide a licence to operate. We now provide a core competence”. This quote captures the essence of where legal depart-ments are heading. Clearly documenting relationships with clients and suppliers continues to gain importance. Public expectations and transparency around company behaviour is increasing rapidly. Swiftly adapting the organisation to developments like these increases com-mercial capacity and operational efficiency. Slow adaption, on the other hand, means risking business interruption and reputational damage that translates into additional costs and decreased revenue.

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Issue 2, July 2014

column // Harm Cammel >> partner at Baskerville

>>

The WCAM provides parties to a settlement agreement with the possibility of jointly requesting the Court to declare the settlement agreement binding. If the Court declares the settlement agreement binding, the agreement then binds all persons covered by its terms, unless such person decides to opt out.

On 1 July 2013 an important amendment to the WCAM came into force: the WCAM can now be applied to settlements reached if the liable person is declared bankrupt in the Netherlands. Before this amendment, a trustee in bankruptcy had to examine all claims of the creditors individually - a costly and time

Dutch law does not provide for an “American style” class action. However, it has a mechanism that facilitates the implementa-tion of collective settlements in a somewhat similar fashion to US class action settlements. This mechanism is rooted in the Act on the Collective Settlement of Mass Claims, known in the Netherlands as the “WCAM”. In recent years the Dutch courts have been prepared to apply the WCAM in international situa-tions. Thereby, the Netherlands has become a viable venue for resolving mass litigation.

REsoLviNg MAss LiTigATioN?coNsiDER THE NETHERLANDs

opinion // Jan de Bie Leuveling Tjeenk

The WCAM can now be applied to settlements reached if the liable person is declared bankrupt in the Netherlands

requesting the Court to declare a settlement binding (between the estate and the foundation/association that represents the interested persons). In May 2013, the first request to declare a settlement agreement binding in a bankruptcy was made to the court. In the DSB Bank case, about 100,000 customers may have claims that DSB Bank violated its duty of care. The settlement brought before the court provides for an arrangement that intends to compensate all customers of DSB Bank for the possible violation of its duty of care. The court delivered a second interim decision on 13 May 2014, in which it gave the parties the opportunity to amend the settlement agreement on certain points, given that it deems the compensation offered so far not reasonable in certain respects. If the court approves the settlement, it will be the first ever with regard to a bankrupt entity.Separate and apart from the bankruptcy amendment, the court, thus far, has rendered six final decisions within the framework of the WCAM.

consuming process. With the amendment, the WCAM provides for an efficient way for a trustee in bankruptcy to settle all claims at once by

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Issue 2, July 2014

To date, no other European country has a mechanism comparable to that of the WCAM

The Netherlands has become a viable venue for collective settlements in international cases

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Two of the cases, Shell and Converium, had substantial international scope. Both cases concerned financial loss suffered by shareholders allegedly caused by misleading statements by the company in a certain period. In Shell, one

Profile // Jan de Bie Leuveling TjeenkPartner at De Brauw Blackstone WestbroekT +31 20 577 1661E jan.debieleuvelingtjeenk@debrauw.comLink to profile

of the Shell entities involved was Dutch (and listed on the Amsterdam Stock Exchange) and the other was English. The majority of the shareholders who bought or sold Shell shares during the relevant period were not residing in the Netherlands. In Converium, both entities involved were Swiss and neither was listed on the Amsterdam Stock Exchange. Also, only a minority of the shareholders who bought or sold shares during the relevant period were residents of the Netherlands. In both cases the Dutch Court accepted international jurisdiction to hear the case.

What this means is that the Netherlands has become a viable venue for collective settlements in international cases. To date, no other European country has a

mechanism comparable to that of the WCAM. Companies that are confronted with mass litigation, whatever their home country is and wherever their shareholder base resides, should be aware of this option for resolving mass disputes.

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Issue 2, July 2014

opinion

THE 10This is a selection of ten interestingrecent developments or news items in international and national law chosen by the editorial board.

1 DNB “good practices” guide on combating corruption - LInk The Dutch Central Bank has recently published a brochure with information and guidance for banks and insurance companies on how to combat corruption, including many examples of ‘good practices’.

2 Dutch competition Authority’s new digital dawn raid guidelines - LInk The Dutch competition authority, the Authority Consumer and Market (ACM), has published new dawn raid guidelines specifying how it uses its powers to inspect and copy digital media.

3 Hyperlinks to freely available content are permitted - LInk In the highly anticipated Svensson-case, the CJEU handed down a land-mark decision holding that websites that redirect internet users through hyperlinks to protected works that are already freely available online do not infringe on copyrights of those works, even if a website uses embedded links.

4 EcJ: Right to be forgotten - LInk On 13 May 2014, the European Court of Justice honoured the so-called “right to be forgotten”. People have the right to request information to be removed from Google’s (or any other search engine’s) search results, if this information appears to be inadequate, irrelevant or no longer relevant. Link

5 uNciTRAL launches transparency registry - LInk UNCITRAL launches the Transparency Registry which is a central repository for the publication of information and documents in treaty-based investor-state arbitration.

6 The Netherlands ranked 5th in worldwide Rule of law index - LInkThe Netherlands has placed fifth overall in the World Justice Project’s Rule in which 99 countries were surveyed for various categories including government accountability, civil justice and regulatory enforcement.

7 New Anti-piracy Regulation - LInkThe scope of the new Anti-Piracy Regulation has been broadened and the Regulation now relates to practically all possible IP rights.

8 New claw-back legislation - LInkEffective as of 1 January 2014, pursuant to the new claw-back legislation companies will be able to revise and claw back directors’ bonuses if they are excessive or wrongly awarded.

9 EcJ declares the Telecom Data Retention Directive invalid - LInkThe ECJ concluded that the Directive disproportionally interferes with the fundamental rights of European citizens to private life and protection of personal data.

10 Downloading from unlawful sources is copyright infringement - LInkThe ECJ ruled that the private copying exemption only applies to copies derived from lawful sources.

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Developments

4 September 2014 Back to the lecture hall – criminal liability of companies and directors Roan Lamp

4 & 5 September 2014WhistleblowingLokke Moerel & Sharon Oded

11 & 12 September 2014Risk management of directors liability at multinationalsRené Clumpkens & Jeroen van der Schrieck

18 & 19 September 2014Recent developments in corporate restructuringRuud Hermans & Reinout Vriesendorp

25 & 26 September 2014Best value procurementBart van Reeken

2 October 2014Legal updates: Dutch tax developmentsFrank Pötgens

2 & 3 October 2014protection of technological innovationGertjan Kuipers & Tjibbe Douma

28 October 2014Back to the lecture hall – new employment lawStefan Sagel

Editors // Tobias Cohen Jehoram, Edward van Geuns, Amanda Kemshaw, Diane Živkovic and Paul Tjiamconcept and graphic design // CSbluephotography // Heijdendael & Annegarn,Arjan Doevendans

www.debrauw.com

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calendar contributors

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14 November 2014Master class Big DataLokke Moerel 20 & 21 November 2014Master class cybercrime and Data BreachesRichard van Staden ten Brink & Wanne Pemmelaar

27 & 28 NovemberMaster class Tax developments for corporate lawyersPaul Sleurink and Henk van Ravenhorst 11 DecemberLegal updates: Employment lawEvert Jan Henrichs & Barbara van Duren-Kloppert 11 & 12 DecemberMaster class inquiry proceedingsHarm-Jan de Kluiver & Jeroen van der Schrieck

DE BRAuW cALENDAR

Issue 2, July 2014

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