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Club Level Feature: Morgan Lewis & Bockius LLP

‘BREALITY CHECK’—BREXIT UPDATEs AND THIRD COUNTRY PASSPORTING IMPLICATIONS

By: Morgan Lewis Partners Simon Currie and William Yonge

Recent April 2017 Update

On 24 January 2017, the UK Supreme Court by a majority of 8-3 found that the UK government could not decide to trigger withdrawal from the EU under the relevant Treaty without the prior approval of Parliament. In early March, the UK Parliament confirmed the result of the referendum on 23 June 2016 by voting in both Houses in favour of the European Union (Notification of Withdrawal) Bill which received the Royal Assent on 16 March. On 29 March, just over 44 years since the UK joined what was then called the European Economic Community on 1 January 1973, Prime Minister May notified the European Council in accordance with Article 50(2) of the Treaty on European Union of the UK’s intention to withdraw from the EU. The UK government’s Department for Exiting the European Union then published a White Paper entitled “Legislating for the United Kingdom’s withdrawal from the European Union” in which it published its plans to bring to Parliament a Great Repeal Bill which will repeal the European Communities Act 1972, the statute that gives effect to EU law under UK law and renders EU law supreme over UK law; that repeal will take place on the day the UK leaves the EU and the Great Repeal Bill will also convert EU law as it applies in the UK into UK domestic law to facilitate an orderly transition and confer powers on the UK Government to correct or remove the laws that would otherwise not function properly once the UK has left the EU on a case by case basis from time to time.

There are three stages of Brexit, the first being the period that occurred prior to the UK submitting notice of its intention to withdraw. Stage two began when the government gave notice to the EU of its intention to exit the EU and began the process of exiting. Stage two will be by far the most significant stage embodying the UK-EU negotiations for Brexit, which will shape UK-EU relations and Britain’s post-Brexit future for decades to come. The timetable for that process is initially set at two years, but with power to extend. Strictly in terms of EU legality, stage three is when the exit process is complete and the UK is able to “go it alone” in negotiating its post-Brexit future with the rest of the world; however, the UK is understandably reluctant to wait for the actual exit before embarking on stage three, which will last for years, so will begin stage three early (or, at least, early in the eyes of the EU) once it has given notice to quit. The reality is that, overall, although an exit from the EU will be on a two year time frame, the entire process could last five to ten years.

Any Brexit deal will encompass a wide range of workstreams covering Britain’s legal separation from the EU; a withdrawal agreement under which existing assets and liabilities will be allocated; a free trade agreement covering the UK’s future relationship with the EU (EU-UK FTA); a transitional phase between Brexit and commencement of the EU-UK FTA; accession to full membership of the World Trade Organisation; new free trade agreements to replace those between the EU and 53 other countries; and cooperation in the realms of defence, foreign policy, and security. Negotiation of fair and mutual transitional arrangements will be key for the economies of the UK and the EU to avoid adverse results of the “cliff edge” variety upon the UK’s exit.

There is a spectrum of possible outcomes of any Brexit deal, bookended by “hard Brexit” and “soft Brexit”. However, neither of those terms can clearly be defined. Some define “hard Brexit” as rejecting privileged access to the EU single market in return for submitting to some EU laws and institutions, While the swirl of day-by-day posturing, partisan commentary, and reluctance of the UK and EU authorities to reveal their negotiating hands make it challenging to discern probable routes forward and plan accordingly, there is no reason why even a “hard Brexit” cannot encompass access to the single market for financial services companies.

 

In this article, we explore how the established EU concept of third country passporting for financial services firms could mitigate the adverse effects of any exit from the EU single market for London as a leading world financial centre.

Passporting

The City of London is one of the world’s leading financial centres, vying only with New York City for the top spot. As such, many financial services firms choose the UK to headquarter their businesses, anchoring themselves in a convenient time zone and location from which to access the European and global markets. Post-referendum, the primary concern of financial services professionals is whether they will be able to continue to access the European single market for financial services. This begs the question of whether the UK, in its Brexit trade deal negotiations, will accept the fundamental European principle of the free movement of people in order to gain such access.

The importance of the EU passport and access to the single market should not be underestimated. According to the European Banking Authority, there are more than 2,000 UK investment firms carrying on Markets in Financial Instruments Directive (MiFID) business which benefit from an outbound MiFID passport:

  • Nearly 75% of all MiFID outbound passporting by firms across the EU is undertaken by UK firms into the EEA;
  • 2,079 UK firms use the MiFID passport to access markets in other EU countries; and
  • more than 50% of all investment firms authorised under MiFID are based in the UK.

 

In addition, the European Securities and Markets Authority’s (ESMA’s) opinion of 30 July 2015 on the functioning of the Alternative Investment Fund Managers Directive (AIFMD) passport noted that out of 7,868 AIFs notified for marketing in other EU member states, including sub-funds of umbrella AIFs, 63.8% of those (5,027 AIFs) were from the UK.

In addition, out of the 1,777 non-EU AIFMs marketing AIFs in EU member states, 1,013 (57%) were marketing AIFs in the UK. The figures are clear—the UK generates a significant proportion of the EU’s MiFID and AIFMD passporting business. Conversely, the UK financial services sector benefits hugely from the EU passport and access to the single market. For completeness, passporting rights also exist under the Insurance Mediation Directive, Mortgage Credit Directive, Electronic Money Directive, Capital Requirements Directive and Solvency II. However, those directives are outside the scope of this article.

In a recent wider analysis by the UK Financial Conduct Authority (FCA) which took into account all the passporting directives, FCA found the following:

 

Total Inbound from

EU27 into UK

Outbound from

UK into EU27

Number of passports in total 359,953 23,532 336,421
Number of firms using passporting 13,484 8,008 5,476

 

Many firms hold more than one passport; hence, there are significantly more passports than firms.

The optimal outcome for UK financial services firms that wish to retain their current access to the single market in financial services would be a bespoke deal, but if not achievable, the third country passport can mitigate the issues arising from withdrawal of passporting rights.

Upon the UK’s withdrawal from the EU, the passporting regime will, broadly, cease to apply to UK-authorised firms. In other words, the following will be the case:

  • Investment firms, banks, and fund managers will no longer be able to passport into, or establish branches in, the remaining EU member states.
  • Firms will not be able to market Undertakings for Collective Investment in Transferable Securities (UCITS) and AIFs EU-wide on a passported basis.
  • Firms will only be able to market AIFs EU-wide using local private placement regimes.
  • Investment managers will need to acquire local authorizations to conduct investment activities in each EU member state in which they operate.
  • Many investment firms, banks, and fund managers would need to consider whether to relocate their base of operations in an EU country while retaining a substantial UK foothold in order to retain the passport.

Options if the UK Does Not Negotiate Continuing Access to the Single Market

The EU has already recognised the concept of non-EU or third country access to the passport, provided that stringent (but, in our opinion, entirely achievable) conditions are met. The best current examples of that are the AIFMD, the European Market Infrastructure Regulation (EMIR), and to some extent, the Prospectus Directive. In addition, MiFID II—due to come into force in January 2018—provides for such access, albeit in the non-retail sector only. However, the UCITS regime does not envisage the extension of its regime to non-EU countries, as by definition UCITS and their managers must be domiciled in the EU.

AIFMD Third Country Passport

AIFMD contemplates that non-EU AIFMs in eligible third countries may benefit from the right to manage AIFs and/or market units or shares of AIFs throughout the EU with a passport. At present, no such passports have been granted. However, the process for doing so is well underway. Canada, Guernsey, Japan, Jersey, and Switzerland have recently been given a “favourable opinion” by the ESMA in its advice to the European Commission on the extension of the AIFMD passport. In addition, ESMA has given favourable but qualified opinions regarding the same in respect of Australia, Hong Kong, Singapore, and the United States, but has not yet been able to provide definitive advice in relation to Bermuda, the Cayman Islands, and the Isle of Man. The Commission is deliberating on the timing, and it is not clear when the third country passport will become available to AIFs and AIFMs based in a third country that has already been given a favourable opinion by ESMA.

If the UK was to leave its current AIFMD-compliant regime in place, it ought to be technically straightforward, following Brexit, for the AIFMD passport to be extended to the UK. If so, UK AIFMs managing EU AIFs and/or non-EU AIFs could become authorised under AIFMD by achieving authorised status in an EU country and could continue to use marketing and management passports subject to a positive opinion from ESMA and a decision by the Commission that the UK qualifies for such treatment under the applicable criteria. However, political considerations would be inherent within any such decision and would likely complicate it.

MiFID II Third Country Passport

The Markets in Financial Instruments Regulation (MiFIR), which is due to come into force in January 2018 (and forms part of the MiFID II regime), entitles “third country” investment firms to provide investment services only to professional clients across the EU upon registration with ESMA. Registration will be contingent upon a range of conditions, including a decision made by the Commission that the relevant third country’s prudential and business conduct framework is equivalent to EU standards.

Would the UK pass the third country test?

In our opinion, yes. On 24 June, the FCA made it clear that firms are to continue down the road to implementation and are to comply with all EU legislation until further notice. As such, if the UK implements in full the provisions of MiFID II, it ought to be a relatively simple process, following Brexit, for the MiFID II passport to be extended to the UK, thus providing firms with non-retail single market access. However, political considerations could trump that.

EMIR Third Country Passport

EMIR is the product of an international initiative of the G20 developed in the wake of the Great Recession. With this in mind, the UK is unlikely to want to unravel EMIR post-Brexit. Since in a post-Brexit world a UK undertaking would no longer be established in the EU, under EMIR, UK undertakings that are currently financial counterparties or non-financial counterparties would become third country entities (TCEs) for EMIR purposes and no longer directly subject to EMIR. However, EMIR does impact TCEs when they trade with EU counterparties, and to that extent EMIR will continue to impact the same post-Brexit.

The City of London boasts some of the world’s largest clearing houses, and at least three of them are currently permitted under EMIR to provide clearing services to clearing members and trading venues throughout the EU in their capacity as ESMA-authorised central counterparties (CCPs). Post-Brexit, however, a UK CCP would become a third country CCP. Under EMIR, a third country CCP can only provide clearing services to clearing members or trading venues established in the EU where that CCP is specifically recognised by ESMA. This would require, among other things, clearing houses operating out of London to apply to ESMA for recognition, the Commission to pass an implementing act on the equivalence of the UK’s regime to EMIR, and relevant cooperation arrangements to be put in place between the EU and the UK—a lengthy process overall and one thrown into doubt by Brexit.

Encouragingly for the UK, since 27 April 2015, 19 third country CCPs have been recognised by ESMA emanating from Australia, Canada, Japan, Hong Kong, Mexico, Singapore, South Africa, South Korea, Switzerland, and most recently the United States. Clearly, there is an appetite within ESMA and the EU for third country CCPs to provide services within the EU, and post-Brexit, we believe that financial institutions based in the EU will certainly want to continue to access UK regulated markets and CCPs.

Prospectus Directive Third Country Passport

As an EU member state, the UK is currently a participant in the Prospectus Directive’s passporting regime for prospectuses. Any failure by the UK to secure continued access to the single market would bring challenges. Notably, prospectuses approved in an EU member state in connection with a listing on a regulated market in that member state would need to be recognised by the FCA in order to be approved for UK listing purposes. Conversely, prospectuses approved in the UK would need to be approved afresh by the regulatory authority in an EU member state under applicable Prospectus Directive standards for the prospectus to be used for a listing on a regulated market in that state.

However, under the Prospectus Directive, an EU member state regulator is able to approve a prospectus approved in a “third country” if the Commission is satisfied that the prospectus was drawn up in accordance with international standards, and that the relevant third country’s prospectus content requirements were equivalent to those in the Prospectus Directive. Provided the UK’s prospectus requirements do not change dramatically from what are currently in place, we believe that the UK’s requirements should be considered equivalent to the Prospectus Directive requirements for the purposes of listing in the EU.

UCITS

UCITS funds and their managers (but not necessarily the delegates of their managers), by definition, must be domiciled in the EU. Unlike AIFMD, EMIR, MiFID II and the Prospectus Directive, the UCITS regime does not envisage the extension of its regime to non-EU countries. In other words, UK UCITS funds would no longer qualify as UCITS. Instead, UCITS would become AIFs. This means that UK-based UCITS funds would no longer be automatically marketable to the public in the EU and would therefore become subject to local private placement regimes. Conversely, a UCITS fund established, say, in Ireland or Luxembourg, would no longer be marketable in the UK to the general public, and a management company based in Ireland or Dublin would no longer be entitled to provide management services to a UK-based UCITS fund.

During any Brexit negotiations, insertion of a “third country” equivalence test into the UCITS regime may be used as leverage by the EU negotiating team in exchange for concessions by the UK. Any third country equivalence regime that is substantially similar to that under AIFMD and MiFID II would be well received in the City of London and would provide the necessary reassurance for financial services firms operating in the UCITS space.

What Should You Be Doing Now?

There are a number of actions we recommend that firms consider taking in order to prepare for the eventuality of Brexit:

  1. Monitor Brexit developments and consult your legal services providers to help you understand these developments as they unfold.
  2. Develop a contingency plan for a “hard Brexit” and how to respond to withdrawal of passporting rights and the absence of a third country equivalent mitigant.
  3. Consider a review of your existing contracts:
  • The jurisdictional scope of your contracts may be limited. The definition of “EEA” may need to be redefined to continue to cover the UK in the event of Brexit.
  • Current investment strategies may require updating. In particular, investment strategies that permit investments in the EEA may need to be amended in order for investments in the UK to continue to be permitted.
  • There may be force majeure implications. Uncertainty may drive parties to look for an exit from contracts that are no longer profitable or are underperforming. EU law provisions may render contracts incapable of being performed as originally anticipated. Parties looking for flexibility in such circumstances should consider including Brexit in their force majeure provisions.
  • Termination rights. Those wishing for the option to withdraw from potentially loss-making contracts should consider drafting termination rights which will apply in the event of a Brexit (i.e., consider drafting and quantifying withdrawal rights in the event of a “material adverse financial event/downturn” in the markets).
  1. Lobby the UK government:
  • We recommend lobbying the UK government, either directly or through your relevant trade association, to ensure that your voice is heard and that key financial services sector considerations will be on the agenda when a Brexit deal is negotiated.
  • In addition to the range of sectoral trade associations, there are various lobby groups in existence, such as TheCityUK, whose aim is to preserve access to the European markets; the European Financial Services Chairmen’s Advisory Committee which is chaired by Shriti Vadera, former Labour business minister, and the Financial Services Negotiation Forum.

Resources

For further information on the implications of Brexit, please visit Morgan Lewis’s Brexit Resource Centre.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
US

Michael Pedrick

London

Simon Currie

William Yonge

 

About Morgan Lewis

Morgan Lewis offers more than 2,200 lawyers, patent agents, benefits advisers, regulatory scientists, and other specialists in 30 offices* across North America, Asia, Europe, and the Middle East. The firm provides comprehensive litigation, corporate, transactional, regulatory, intellectual property, and labor and employment legal services to clients of all sizes—from globally established industry leaders to just-conceived start-ups.

 

 


Club Level Feature: Bartlett & Company Inc.

Bartlett & Company Inc. – Over 75 Years of Global Service

In a globe-straddling twist on the family-owned regional agency, UK-owned Bartlett & Co. Inc., operated by second- and third-generation insurance professionals, combines a unique international footprint and a focus on niche markets to create a formidable and fast-growing business that’s more than equal to the task of competing with big brokers for business.

The firm was started in 1940 by Fred Bartlett in the English city of Bradford. Unable to join the Royal Air Force due to poor eyesight, he worked in a coal pit to help keep British industry going during the war, and later joined the Auxiliary Fire Service— all while running the business. The brokerage is now led by Michael Bartlett (Fred’s son) and his two sons, Richard and Andrew, from group headquarters in Leeds, England. Under Michael’s leadership the business has grown from a regional insurance broker in the UK to a much larger player, with over 120 employees that manage insurance programs in more than 40 countries from offices in Philadelphia, Leeds, London, Paris, Amsterdam, Hamburg, Hong Kong, Sydney and Kampala, Uganda.

Bartlett opened its Philadelphia office in 1997, originally to service the American business interests of its European clients. Since then, Bartlett has developed a large and expanding roster of US clients. Currently, about 50 percent of Bartlett’s Philadelphia-branch business is generated from overseas; the other half is US-based, much of which has an overseas exposure. Bartlett’s sprawling global reach affords the brokerage access to all major insurance carriers around the world.  In addition to standard market access, Bartlett Ltd is also a registered broker at Lloyd’s of London.  This status at Lloyd’s serves as a distinct advantage for Bartlett and their clients, by increasing the options available for complex risks and providing additional capacity when the market cycle causes upward pressure on premiums.

In addition to its ability to offer global service to its clients, Bartlett sees two other factors as critical to the firm’s solid performance: its approach to pricing and a laser-sharp focus on niche markets. “In a country with 38,000 independent brokers, it’s important not to fall into a ‘race to the bottom’ and compete solely on price when it comes to placing insurance and advising business executives,” says Richard Bartlett. “While price has been a driver in securing new business during the global recession, identifying niche markets which play to our strengths—with higher barriers to entry and where the expertise of our staff and high service standards will be valued—has enabled us to compete on other differentiators and ensure our steady organic growth through demonstrating and delivering value to our clients and prospects,” Bartlett adds.

The firm’s industry specializations have been developed first through the knowledge and expertise of its account executives and then by being institutionalized into the business, having the effect of combining a spirit of entrepreneurialism with the structures and resources of a larger business. Bartlett’s sweet spot is middle-market corporate business, specifically in the specialty areas of manufacturing, technology, real estate, credit insurance and due-diligence reporting in mergers and acquisitions. Bartlett’s strong international network makes specializing in middle-market global business a natural fit. “Unlike many of our regional competitors, our primary day-to-day focus is on structuring and servicing international insurance programs. Our international footprint enables us to maintain high service standards across the globe instead of relying on broker partner groups to assist us in servicing our clients in countries outside of the US.  At the same time, we are able to offer a more personalized family-business approach than the larger brokers,” says Pat Riley, President of Bartlett & Company Inc. in Philadelphia. “Like other privately owned businesses, we aren’t burdened by quarterly earnings or share price, so we are able to focus all of our attention on providing the best long-term insurance and risk management advice to all of our clients.”

Customer retention, of course, is an important aspect of continued growth, and at Bartlett, much of this hinges on acting as the clients’ outsourced risk manager and trusted advisor. The brokerage provides clients with beyond-the-basics services, such as:

  1. Risk management and loss control advice, including claims and loss analysis, business continuity planning, contract reviews, motor-fleet risk management and workplace safety reviews;
  2. An experienced major-loss advisor who can deploy to clients’ sites anywhere in the world to support claims settlement;
  3. An online client-feedback survey ensuring early identification of potential problems;
  4. Aggressive marketing and benchmarking services to ensure premiums are competitive;
  5. Regular contact between the client and the Bartlett team at all levels, including stewardship meetings midway through the policy period to review pre-defined risk management and claims goals, future business plans, the state of the market, and renewal strategies.

Click here to learn more about Bartlett and for a complete listing of services.


Boyds Philadelphia – World Renowned Local Clothier Featuring UK Fashion and Flair

Boyds, an iconic Philadelphia Clothier, and the newest British American Business Council of Greater Philadelphia Club Level member, offers the best designer fashion, shoes and accessories for men and women, with impeccable service. The founder of Boyds Philadelphia, Alec Gushner, emigrated from Russia in 1936. He opened his first store, selling “big & tall” men’s suits and sport coats more than 70 years ago in the heart of Philadelphia’s flourishing clothing retail sector on 5th and Market Streets. At the time, the majority of Philadelphia’s social elite would be spotted almost nightly at the Boyds Theater across town. Ever savvy Gushner strategically positioned his business to be associated with the upscale clientele of the famed venue, naming it “Boyds Philadelphia.” In the 1990s, the store moved uptown to the Rittenhouse Square neighborhood, one of the most exclusive parts of Center City, Philadelphia. Seasoned international business executives and new to the professional scene hipsters alike can find something original for the season, update a wardrobe, or obtain the perfect outfit for that special occasion, all under one beautiful roof.

The next generation grew the business from men’s “big & tall” suits and sport coats to include all tailored clothing. Over the years as business casual began to be introduced into the work place Boyds offered men’s and women’s sportswear. Currently owned and operated by third and fourth generation family members, Boyds has grown and evolved, but remains true to founding ideals. “There are no demographic breakdowns and no shareholders to answer to. Our customers are not points on a graph. We have one store, the same one that has been owned and operated by the same family. And when you know customers by their names and individual tastes, demographics just seem silly.”

Alex Gushner, the fourth generation family member in the business recently moved back to Philadelphia to assume his role at Boyds. Alex grew up in a suburb of Philadelphia. He attended The Haverford School, and the University of California, Santa Barbara (UCSB). During junior year Alex studied abroad in London, and interned at the Royal Bank of Scotland for its Loan Syndicate Group. It was during his time in London and tenure with the Bank when Alex truly connected with Britain. After graduating with a Bachelor’s Degree in Economics Alex moved to New York City and worked in Wholesale Sales at Ermenegildo Zegna. This past summer, Alex joined his family’s business in Philadelphia, where he works for his father and his two uncles, all of whom are Boyds partners. Alex is an Assistant Buyer of men’s tailored clothing and he brings to Boyds a particular focus on made-to-measure (custom) clothing. Alex believes, “partnering with the British American Business Council is simple evolution for a long-standing icon like Boyds — which carries UK brands, including: Belstaff, Paul Smith, Sanders and Chuches.”

Boyds is regarded as one of the world’s greatest clothing stores. The family continues to place emphasis on international networking and cultivating cross-cultural opportunites for style savvy shoppers and executives. In the age of mass merchandising, when so many retail stores look the same, Boyds prides itself on providing customers with exclusive merchandise. They offer one of the country’s largest selections of fine men’s and women’s designer fashions. After all, such quality is what their customers have come to expect – from the $2.25 sport shirts of the 1940s, to the leisure suits of the 1970s, to the luxurious fabrications and designers of today. Part of Boyds’ commitment also includes a policy of extraordinary customer service. Free custom alterations, fashion coordinators, and free valet parking are part of the Store’s ripe tradition. Boyds treats customers as individuals. That’s not typical, but neither is Boyds.

With more than 40 on-site European tailors – Boyds boasts the largest custom tailor shop in the country. The Store will customize the fit of anything from denim and sport shirts to suits and dresses. Boyds offers designer collections; men’s and women’s apparel; contemporary fashions; handbags; and shoes, from top fashion houses including: Isabel Mirant, Alexander McQueen, Giambatista Valli, Mugler, Brioni, Canali, Brunello Cucinelli, Zengna, and more. Need fancy footwear? You’ll find top shoe designers like Gianvitto Rossi, Alexander Wang, Aquazurra, Monolo Blahnik, Ferragamo, Tods, Gucci, and more.

Boyds occupies five floors of the old Oliver Bair funeral parlor, a magnificent building located at 18th and Chestnut Streets. The recently opened Boyds Custom Shirt Shop is better than ever. Visit Boyds’ new Custom Shirt Shop and experience the perfect shirt. From dress shirts to sport shirts to formal shirts, experience feeling the fabrics of your choice and selecting the colors and patterns you desire. Then one of our master tailors will take your precise measurements. Collars to cuffs, it’s your call! Designers include: Hamilton, Individualized Shirts, Ermenegildo Zegna, Eton, and Isaia. Visit Boyds. You will be impressed, not only by the beauty of the store and the merchandise they carry but by the impeccable service and welcoming environment.

The Store hosts fashion and trunk shows and exclusive shopping events throughout the year. Boyds is an avid supporter of local charities. Join the British American Business Council of Greater Philadelphia on Wednesday, November 4, 2015 for the Fashion Forward Executive Apparel Fundraiser & Networking Event. Spend an evening enhancing valuable business connections and shopping for global designer apparel, shoes and bags. All attendees will receive a special discount and a percentage of revenue will be donated to The Ronald McDonald House. The Philadelphia Ronald McDonald House supports families of seriously ill children by creating a community of comfort and hope. Proceeds from this event will go towards families who are traveling from outside of the United States for treatment.

Click here to learn more about Boyds and for a complete listing of services.


US and UK Employment Laws: We Speak the Same Language But…

By: Jonathan A. Segal and Elena Cooper, Duane Morris LLP

In 2009, Duane Morris created the Duane Morris Institute (DMi) to serve as the educational arm of the firm’s Employment, Labor, Benefits and Immigration practice group. Duane Morris attorneys offer CLE and HRCI accredited programs in-person (Philadelphia, New York and London), at client work sites and online.

DMi instruction maintains a keen focus on the practical applications of knowledge to empower human resources professionals, in-house counsel, benefits administrators and other senior management to maximize legal compliance, minimize legal risk and consider best human resources practices. By providing real-world, business-relevant information, the organization has thrived as a value-added service for Duane Morris clients and industry professionals alike.

Beginning this year, we have been pleased to extend the DMi to the United Kingdom (DMi UK) to offer our clients and other professionals in the UK and Europe access to timely, relevant courses that will help participants achieve their business goals.

Partner Jonathan Segal in Philadelphia is the managing principal of the DMi and partner Elena Cooper in London heads DMi UK. Both Segal and Cooper will participate in a September 30 program with the British American Business Council examining the differences between employment laws in the US and the UK. While the laws are similar, sometimes differences that affect the life cycle of an employee are overlooked. This can result in liability if the differences are not recognized. Here are but 10 examples of the many differences that will be covered in the program:

  1. In the US, an employee must prove eligibility to work in the country within the first three business days of employment. In contrast, in the UK, eligibility must be proven prior to the first day of work.
  1. In the US, under federal law, family leave can be taken to care for a spouse, child or parent. Some states go further. In the UK, the law is much broader. Family leave can be taken to care for any dependent whom an employee can show is genuinely dependent upon him or her; this is, in practical terms, usually a family member, but it is not limited to family members only.
  1. In the US, an employer can mandate as much overtime as it wants, absent a state law or a union contract to the contrary. In contrast, in the UK, generally, an employee cannot be required to work more than 48 hours in a work week absent his or her consent.
  1. In the US, unless an employee has a contract to the contrary, generally, an employee can be terminated at any time with or without prior notice. In the UK, regardless of a contractual provision, minimum notice provisions will always apply, unless the dismissal is for “cause,” such as stealing company money or property, lying, harassment, violent behavior, etc.
  1. In the US, unless an employee has a contract to the contrary, generally, an employee can be terminated at any time with or without cause (so long as not for an unlawful reason). This may look similar to the point above but it is very different. Point #4 deals with whether notice is required and #5 deals with whether there must be reason for termination. Answers to these questions differ under UK law, even though in the US there is a tendency to collapse the two distinct issues into one. In the UK, after two years continuous employment, regardless of contractual provisions, a fair reason for termination is needed, e.g., redundancy, capability, cause. After that two-year period, if there is no “fair” reason to terminate, the termination will be deemed unfair and liability arises.
  1. In the US, an employee has no entitlement to severance upon termination of employment, even if terminated without cause, unless the employee has negotiated a contractual right or the employee is eligible under a severance plan. In the UK, an employee will be entitled to statutory severance if she is made redundant after two years continuous employment, plus contractual or statutory notice in most cases.
  1. In the US, in order for a release of claims to be effective, it must be knowing and voluntary. An employee who is 40 years old or older must be encouraged to consult with an attorney and should be encouraged to do the same even if under age 40, but there is no obligation for the employee to consult with lawyer or for lawyer to sign. In the UK, for a release to be effective, it must be signed by a solicitor acting for the employee. Without the employee gaining independent legal advice, the severance is wholly unenforceable. Providing the employee with an option to seek legal advice is not an option in the UK; the legal advice must be taken and the adviser must sign the release.
  1. In the US, except for a few state laws to the contrary, applicants and employees are protected from age discrimination only if they are 40 or over. In the UK, protection from age discrimination applies to all applicants and employees, regardless of their age.
  1. In the US, there is no maximum length for non-compete agreements (per se unlawful in California). The question is reasonableness under all relevant circumstances. Non-competes of up to two years have been upheld for some positions. In the UK, the courts generally will not uphold non-compete periods of more than 12 months. Also, where a non-compete clause is drafted too widely, it almost always will be struck out entirely in the UK. In most states in the US, courts will blue pencil (narrow) an overbroad non-compete and enforce it to the extent reasonable.
  1. Join us on September 30 and we will discuss the first 9 in more detail, share #10 and provide other examples.

DMi and DMi UK have a robust upcoming CLE and HRCI certified training course schedule. Some highlights include: Executive Leadership Retreat: Full-Day Event in Philadelphia (Philadelphia, June 11) – topics include, “The Time That Binds: Balancing Strategic Vision and Employee Coaching” presented by Thomas G. Servodidio, “Preventing and Addressing the Inevitable Security Breach: Managing Data and Security Risks in the Digital World” presented by Sandra A. Jeskie, “The Secret Sauce: Trends in the Law of Trade Secrets and Strategies to Protect Your Company’s Intellectual Property” presented by Aliza R. Karetnick, and “Top 10 Systemic Ways to Maximize Gender Equality (Not for Women Only)” presented by Jonathan A. Segal; Employment Tribunal Program (on-site at the Central London Employment Tribunal, June 25); and TUPE (Transfer of Undertakings/Protection of Employment): From Starts to Finish in Two Easy Hours (London, September, 24).

For a full listing of DMi and DMi UK courses, please visit http://duanemorrisinstitute.com/courses. As part of our promotional partnership with the British American Business Council of Greater Philadelphia, Duane Morris Institute would like to offer a first time, 50 percent discount on one of our webinars to the members of BABC. Please use code BABC2015 when adding a program to your cart.

Jonathan A. Segal is a partner at Duane Morris LLP in the Employment, Labor, Benefits and Immigration Practice Group, as well as the managing principal of the Duane Morris Institute. Segal’s practice focuses on: preventive counseling; training and policy development with regard to numerous employment matters; general counseling on compliance with federal, state and local employment laws; mergers & acquisitions; privileged audits; contracts/agreements; and traditional labor. He has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C., providing training on employment issues to federal judges around the country. In this capacity, he has been a featured speaker at conferences for Chief United States District Judges. Segal has also provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. He was appointed by the EEOC to the Select Task Force on Harassment in March 2015. Segal is the Legislative Director for the PA State Council of SHRM, Inc. In this role, he spearheads grassroots advocacy efforts either in support of or in opposition to proposed legislation affecting the employer-employee relationship.

Elena Cooper is a partner at Duane Morris LLP in the Employment, Labor, Benefits and Immigration Practice Group, focusing in the area of employment law, advising clients on transactional, contentious and human resources advisory issues, including multi-jurisdictional restructuring programs, TUPE transfers, outsourcing and redundancies. She concentrates in the areas of financial services, hotel and leisure, media, oil and gas, construction, IT and transport. Cooper’s litigation practice centers on High Court and Employment Tribunal litigation, including high-value bonus claims, restrictive covenant disputes, high-value discrimination, whistle-blowing and breach-of-contract claims. She also advises on all aspects of employment law with a focus on minimizing risk and managing the impact of workplace disputes on morale, business reputation and management time. Cooper regularly advises on senior executive-level terminations and recruitment, severance arrangements, redundancies and succession planning, effective employee management and international employment disputes. With Duane Morris Institute (DMi), Cooper provides structured client training quarterly with webinar sessions to UK and international clients. She also provides a Human Resource Life Cycle Program to clients to assist in all aspects of company set-up from an employment perspective.

This blog should not be construed as legal advice, as pertaining to specific factual circumstances or as establishing an attorney-client relationship.


The New American Airlines – Clearer Skies

American Plane Shot 1

Recognizing the potential benefits that a larger, more financially stable airline could have on both national and regional economies, American Airlines and US Airways joined forces in late 2013 to form the American Airlines Group (American). Although it has been just under a year since the merger became official, the upside – especially in greater Philadelphia – is already clear: consumers of all types now enjoy improved air travel options. The stronger airline has helped create a stronger economy, and more capacity has allowed American to make an even bigger economic impact on the region’s communities and businesses.

Consumer Options
The new American Airlines allows Greater Philadelphia to raise their expectations of airlines. Philadelphia International Airport (PHL) is now our largest hub in the northeast. American now offers more than 125 domestic and 32 international destinations, including 20 peak season non-stop flights to Europe. This extensive service permits travelers throughout the region to go more places faster. Operating 483 daily peak departures, nearly every type of consumer in every part of the region, from southern New Jersey to Delaware and everywhere in between, is experiencing first-hand what a stronger airline can do for them.

Businesses now have greater access to new customers and new markets – both in the United States and abroad. This presents a lucrative opportunity for companies looking to expand by opening more doors and allowing them to better compete in an increasingly globalized economy. Companies in all parts of the region are now being better served. Not only can they seamlessly send executives to Europe on uninterrupted, non-stop flights, but they can also move cargo and products to a broader range of places throughout the world.

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In addition to transporting passengers, American also carries 111 million pounds of cargo on an annual basis – a figure that is sure to increase with the announcement of a new 25,000 square-foot cold storage facility at PHL. A $5 million investment, this new facility will triple current warehousing capacity and will be designed to house a full range of temperature-sensitive products being shipped in and out of the strategically important northeast corridor. Not only will this strengthen the many pharmaceutical companies currently headquartered in the Philadelphia region, but it will enhance business opportunities for many of our UK based pharmaceutical business partners. Investments such as this at PHL will also serve as an incentive to others to consider relocating their operations and new jobs to the Delaware Valley.

Leisure travelers stand to benefit from a stronger regional economy. But in addition, more flights being operated by the same airline has meant increased connectivity to more cities – allowing people to get more places when they want to. Joe Taney, vice president of American’s international gateway here at PHL, has kept his team’s focus on improving the overall customer experience for both originating and connecting customers. “It’s our role to constantly look for ways to make air travel as smooth as possible,” Taney says. “For our international customers, American recently partnered with US Customs and Border Patrol, and the Division of Aviation at PHL to implement Automated Passport Control kiosks which will help reduce the line waits, as you arrive from another country, allowing you to move easily to your connecting flight, or get to your car much quicker.”

PHL Terminal

A Stronger Airline and a Stronger Economy
Bringing American Airlines and US Airways together to form the world’s largest airline has put the company on more stable financial ground. As a result, the Philadelphia region’s economy is stronger because of the rebound by one of its largest employers. At the height of the airline industry’s turmoil, news about potential bankruptcies seemed to be a regular occurrence. Since the merger, the tenor seems to have changed and the benefits are becoming clear.

American Workers

Today, American has nearly 7,600 employees at PHL and is by far the largest airline employer in Pennsylvania. While their jobs may be located in Pennsylvania, our employees call every corner of the region home – neighbor states Delaware and New Jersey included – helping to spread the economic benefits across the region. In short, financial stability has created additional opportunities for careers to begin, flourish, and remain for years, and has also allowed American to make major upgrades.

In 2014, American invested $5.6 billion in new aircraft. This investment marks the largest aircraft order in aviation history – 556 jets in total – and with two new planes arriving each week, American is on pace to be the youngest fleet in the skies by 2017. Not only will this raise the bar for aircraft quality, but the size of this investment will have an enormous impact on both the regional and national economies.

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Community Impact
Even as separate companies, American Airlines and US Airways made significant philanthropic contributions to the communities in which they operated. But when the industry hit turbulence, those efforts became increasingly difficult to balance as they struggled to maintain basic operations. As a larger airline with more stable financial footing, the new American has been able to make an even greater impact.

Our dedication to supporting and strengthening communities through charitable giving remains unchanged. In 2014, American has already donated over $750,000 to nearly 60 local charities and cultural institutions, including the United Way, MANNA, the Police Athletic League, the Franklin Institute, the Philadelphia Museum of Art, the Barnes Foundation, and others. In addition, our employees, who had already built a reputation for performing substantial volunteer service prior to the merger, remain committed and steadfast in giving back.

“Do Crew” members – American Airlines’ employee volunteer service organization – recently participated in the 34th annual National Veterans Wheelchair Games, which were held in Philadelphia. With more than 600 athletes, 1,200 wheelchairs and constantly-changing travel schedules, the execution of smooth travel through PHL took an extraordinary level of coordination across departments, airport stakeholders, TSA and the USO. From the Ramp Teams who unloaded and loaded the wheelchairs, to the customer assistance representatives and Agents who assisted the athletes from the aircraft and the ten “Do Crew” volunteers, it was truly an example of coordinated American teamwork at its finest.

Clearer Skies Ahead
It is no secret that the airline industry faced difficult times in recent years. Even before the recession caused severe additional pain, indicators had already been trending in a troublesome direction. For example, the cost of many everyday items has steadily risen since 2000 but air travel has not – roundtrip domestic ticket prices have gone up just 19% versus the 141% increase in the cost of a gallon of gasoline or the 147% increase in annual undergraduate tuition. With already dwindling revenues, the significant reduction in consumer spending during the recession exacerbated the problem.

The shared benefits of the decision to merge – by the Philadelphia region’s consumers, employees, and communities alike – are clear reasons to believe that the positive results will continue to add up. American has proven to be a model for the airline industry to follow as it continues to rebound by demonstrating the impact that a larger airline on more stable financial footing can have. Given that all of this has taken place in less than one year, there is reason to believe that the future has never been brighter.

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HSBC Bank USA, N.A.

International Business No Longer the Domain of Multinationals
Financing Available for Medium and Small Businesses Looking for Global Growth

By Christer Andresen and Gregory Carlisle, HSBC Bank USA, N.A.

Not too long ago, being a global brand was reserved for large Fortune 500 companies. With the world more connected than ever, international business is now no longer the realm of big corporations. According to the US Commerce Department, 95 percent of potential customers for US goods and services live outside of the US. Additionally, US exports will increasingly find their way to rapidly growing consumer markets in developing economies as growth prospects for industrialized nations remain subdued, according to research from HSBC. Driven by advancements in technology and expanding reliance on the internet, the doors to global opportunities are now open to US businesses of all sizes and there are a variety of financing options to help them grow.

Making it Happen
Financing and financial risks can often make or break international trade deals. In fact, some companies even pass up profitable overseas business because of concerns over these issues. Today, however, Philadelphia medium and small businesses seeking to expand abroad have a number of financing options and partners to help them.

For example, last year, HSBC announced an international loan program for medium and small US businesses looking to export or expand internationally. The HSBC international loan program – available to businesses with at least $3 million to $500 million in annual revenue and who are focused on international exports or expansion – is part of a broader global effort by the bank to help businesses develop and capitalize on international opportunities. HSBC’s goal is to help companies who may be struggling in a slower-growing US economy to tap other markets that are growing faster overseas. With HSBC, these companies have access to the products, services and information to efficiently execute cross-border transactions while minimizing potential risks.

Building new or expanded revenue streams via new or more diversified markets and customers, internationally-focused companies can harness the growth trajectories of faster growing markets, as well as potentially better withstand domestic downturns. In fact, HSBC research shows that US companies have benefitted from global expansion and export trends. HSBC’s Spotlight on US Trade, a series of reports analyzing publicly-traded companies in key regions around the US, showed that companies with higher levels of global sales and operations dramatically outperformed their more domestic peers in the six years between 2007 to 2012. More specifically, highly international Northeast companies, including those based in Philadelphia, had an average profit margin of eight percent, while less international companies in the region were unprofitable, over the course of the recession and through 2012.

Another source of help for medium and small business exporters is the independent federal agency, the US Export-Import Bank. The US Ex-Im Bank assists in financing the export of US goods and services, including purchases of US capital equipment and services, purchases of refurbished equipment, software, certain banking and legal fees, and certain local costs and expenses, to international markets through direct loans, loan guarantees, and other credit enhancements. For example, the US Ex-Im Bank will guarantee medium and long term loans to international creditworthy buyers. It does not compete with private-sector lenders but provides export financing to fill gaps.

Additionally, the Bankers Association for Foreign Trade, a non-profit association of approximately 450 banks, matches exporters in need of trade financing with interested banks.

Where To?
The US International Trade Administration’s most recent data shows that Philadelphia’s top international export partners are Canada (22 percent), UK (13 percent) and Mexico (eight percent). However, the right market will vary by your industry. Some markets may be oversaturated with competitors, while others could have too many regulatory obstacles to make your time there worthwhile. Engaging the right partners, including a bank, lawyer, and accountant with international experience, early on in your decision-making process will help iron out your execution and propel you to maximize your success.

Christer Andresen is Vice President and Middle Market Relationship Manager for Commercial Banking in Pennsylvania and New Jersey, and Gregory Carlisle is the Market Manager for Business Banking in Pennsylvania and New Jersey, both with HSBC Bank USA, N.A.


GlaxoSmithKline PLC – Environmental Sustainability Strategy Overview and Commitment

Our environmental sustainability strategy sets ambitious 2020 goals, including a 25% reduction in our carbon footprint, a 20% reduction in water use, zero waste to landfill, and almost doubling our mass efficiency – the efficiency with which we use materials in our new pharmaceutical products.

By 2050, we aim to be carbon neutral across our entire supply chain. Find out what we are doing to achieve these goals here.


Doing Business Internationally: How to Overcome the Challenges, Mitigate the Risk, and Achieve Growth Goals

Deloitte Tax LLP offers clients a broad range of fully integrated tax services. Their approach combines insight and innovation from multiple disciplines with business and industry knowledge to help companies excel globally.

The Deloitte global network advises on a broad range of tax matters impacting business and the global effective tax rate. This approach provides that each clients’ specific tax issues, when operating in multiple jurisdictions, are holistically addressed in a coordinated way, by subject matter and industry specialists locally and abroad. Deloitte endeavors to deploy the right team at the right time to address clients’ needs, wherever they operate.

Expansion outside the US presents exciting opportunities to tap new markets and build business. At the same time, it places new demands on the organization and challenges resources and knowledge bases. Deloitte Tax LLP is hosting a half day briefing on the critical financial, tax and legal factors to be considered when expanding outside the US. After this educational, dynamic session, attendees will be well equipped to manage the challenges and pursue growth plans. Topics that will be addressed include:

• Building Tax/Treasury Strategy: The Basic Tenets and Elements;
• Top 10 International Tax Holes Not to Step In;
• View from the Other Side: Pan-Asian and European Perspectives;
• Legal Aspects of Cross-border Operations; and
-Protecting intellectual property, cross-border M&A considerations, international financing transactions, export restrictions, and other legal considerations in doing business abroad.

Deloitte invited business colleagues for a unique opportunity to gain information and insights from international tax specialists who work every day with the issues and challenges encountered in international business. It was also a great opportunity to meet and share perspectives with your peers at other Greater Philadelphia companies engaged in international expansion. Held on June 27, it was a free educational session about how to overcome the challenges, mitigate the risk, and achieve international expansion growth goals successfully.

Distinguished presenters included: Richard S. Hyman, Partner, Deloitte Tax LLP and Neil Feinstein, Director, International Tax, Deloitte Tax LLP.

If you were unable to participate in the session but are interested in the topics discussed contact the presenter listed above.


Surviving The Leadership Challenge

British Airways (BA), one of the world’s largest international airlines, flying to 160 destinations (including 24 in North America), is renowned for award-winning products and service initiatives. The airline serves more than 36 million people each year, “bringing people together and taking them wherever they want to go.” BA is as committed to their employees’ professional and personal trajectories as they are to serving clients. The airline heavily invests in their personnel and their futures. One of the ways BA has done this for the past four years is through the Leaders of Tomorrow (LoT) training program. The overall goal of the LoT initiative is to identify individuals within BA who currently demonstrate leadership qualities and aspire to move into more demanding management roles. BA executives who possess the greatest ability and stamina are selected to participate in this multi-step process. Hats off to BABC Board Member Anthony J. Slade, Airport Manager, Philadelphia International, who successfully completed the LoT program this past year. Anthony’s team met with so much success that they decided to take their experience to the next level, outside of the organization. Anthony explains they hope to “apply their LoT learnings to something that will be challenging, but will also help others.”

Each year, people from within BA are nominated to join the LoT program. The nominees undergo a rigorous selection process, further pairing down the number of participants to 20 individuals. Once the 20 people have been selected, this group spends two days completing exercises led by ex-military personnel, away from their places of work. Most of the maneuvers are completed outdoors, and involve problem solving, using abstract items of equipment, such as ropes, netting, pipes, buckets, poles, oil drums, tires and wooden planks. Following these exercises, only 10 individuals are selected to participate.

BA LOT

The LoT curriculum involves a one-year time commitment. Each month there is a workshop held at BA’s corporate headquarters at Waterside, near London Heathrow airport. The workshops are delegate driven and facilitated by an outside consultant. The consultant remains with the group for the entire year, and each session is designed to:

• expand leadership thinking;
• challenge comfort zones; and
• encourage learning through support and challenge.

Each LoT delegate is assigned a training buddy from within the cohort. The final session takes place outdoors, and this time a series of challenges are presented to the team at an on-shore British naval base. The exercises are designed to:

• test support and challenge theories;
• measure leadership growth;
• establish how each team reaches decisions, completes tasks, and whether critical thinking was risk averse.

The final challenge involves an overnight stay on a 60 foot yacht. The team is challenged with reaching as many buoys in the English Channel as possible, using charts and navigational aids, while safely crewing the yacht. After several hours of instruction at sea, the control of the boat is handed over to the team and they are left to complete the challenge as safely and quickly as possible.

Anthony sailed many years ago, however, this was a completely new experience for his cohorts. According to Anthony, “the most daunting element of the exercise was collectively being in charge of a large yacht in one of the world’s busiest shipping lanes. There was no room for error and everybody needed to be aware of their surroundings. Large ships can neither stop nor turn very quickly!”

Anthony and his LoT team deserve sincere congratulations for meeting the many challenges presented to them throughout the year. Not only has Anthony and his team met these problem solving obstacles with professional stoicism and success, but they should be commended on their future endeavor, collaborating on a special project designed to give to others less fortunate.

At the end of the LoT program, Anthony and seven of his cohorts who have remained in touch, (himself from the US and six others who work for BA across at Waterside and Terminal 5) decided to push the boundaries of their learnings beyond BA, and chose to link up with The Haller Foundation (also known as Haller), a UK-registered charity that works on environmental issues. Haller’s goal is to provide and promote a model for economic development that is sustainable and environmentally sound. Haller uses a model of environmental regeneration pioneered by its founder, Dr. Rene Haller, a UNEP Global Laureate, to bring economic security to poor, small holder farmers living on inhospitable land. Communities’ basic needs are addressed through an integrated set of programs in water, farming, education, health, alternative energy and nano-enterprise. Haller’s community partnerships offer long term, life-skills training which empower farmers and their children to lead self-sufficient and sustainable lives. Anthony explains, “we have committed to raise GBP6000 for Haller, and everything we raise will help build a rain-fed dam for a community in Kenya. This project will change the lives of that community forever, because the rain-fed dam will enable the dwellers to capture and retain rain water that would otherwise be lost.” Anthony and his colleagues hope to travel to Kenya and teach how to rehabilitate land and improve the quality of food.

To help raise the GBP6000, all seven BA LoT team mates have agreed to participate in the “Three Peaks Challenge” in the UK. In June of this year, Anthony and his colleagues will attempt to climb the three highest peaks in Scotland, England and Wales in a 24-hour time frame. The peaks they will ascend will be:

• Ben Nevis in Scotland;
• Scafell in England; and
• Snowdon in North Wales.

When asked what he is most looking forward to when meeting the Three Peaks Challenge, Anthony states: “it’s being able to utilize our leadership skills; learning about how we perform both as individuals and as a team; pushing our boundaries beyond British Airways; and helping support a community in a developing part of the world. Despite the time difference and various working locations, we have remained a cohesive group. There is a very strong bond between us and that’s what will help us complete this challenge.”

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The BABCPHL recognizes our Club Level Members:

  • American Airlines
  • Bartlett
  • Cigna
  • Deloitte
  • Drinker Biddle & Reath LLP
  • Duane Morris
  • Ernst & Young
  • HSBC
  • KPMG
  • McConnell Johnson Real Estate
  • Morgan Lewis
  • Law Firm of Pepper Hamilton
  • PriceWaterhouseCoopers
  • TD Bank
  • United Airlines
  • Virgin Atlantic