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16 October 2013
The TMT category in The Lawyer Awards this year has thrown up some outstanding work, with law firms breaking new ground in this fast-moving sector. By Sam Chadderton
Some of the legal work being done in the field of TMT is, quite literally, out of this world.
The practice area is so cutting edge that one of its leading exponents, CMS Cameron McKenna partner Joanne Wheeler, is helping to draft policy and regulation in the niche field of ‘space and satellite’.
TMT lawyers are courted by the giants of the private and public sector to help shape, protect and litigate.
With such ground-breaking technological advances year on year, The Lawyer Awards often reflect those developments through a legal prism.
In the shortlist for the TMT category, firms have worked side by side with human genome scientists, Google boffins and mobile phone technology trailblazers.
A consistent message from mid-tier UK and even international firms is that times are tough for TMT lawyers, who are all chasing the same clients and parading in front of the same panels. During the boom, practice groups had four or five lawyers; now that number is down to one or two, sometimes even none.
Telecoms old-timers such as BT have their work cut out to make inroads into the new economy, with upstarts innovating in their place and eating into potential cashflows.
Against this backdrop, then, the standard and breadth of entries for the TMT category is all the more impressive.
Baker & McKenzie for Three
Baker & McKenzie is forging a reputation as the go-to team for appeals under the Communications Act 2003.
It has been involved in three of the five price-control references to the Competition Commission since the act came into force and is a familiar name in the Competition Appeal Tribunal (CAT) corridors.
Partners Richard Pike and Tom Cassels and leading associates Rodger Burnett, Victoria Young and Tim Pountain-Holes took on a classic David and Goliath battle on behalf of mobile operator Three.
They were not just acting on behalf of the telecoms company, but on behalf of all those who use a mobile phone.
Three was a lone voice shouting for reduced mobile termination rates in the dense pricing forest of Everything Everywhere and Vodafone.
During a four-year campaign it began cutting back the branches with lobbying that led to a successful appeal against previous charge control by the larger mobile operators.
Ofcom’s March 2011 decision reduced mobile phone rates by 80 per cent and put Three on a level playing field with its competitors.
Baker & McKenzie was steeled for a response from the heavyweights, which challenged almost every aspect of Ofcom’s decision. Pike and co fought back with an appeal for Three, demanding further reductions. It was a brave and ambitious legal position to take – put together on a small bud-get to tight deadlines – but it paid off.
The Competition Commission sided with Three, meaning Baker & McKenzie had removed the biggest obstacle to the company’s growth, while saving customers £200m on mobile phone payments from 2014.
Berwin Leighton Paisner for the Newspaper Licensing Agency The insult of ‘tomorrow’s chip paper’ is often thrown at newspaper headlines in a bid to dismiss their relevance.
But for those hard-working sub-editors who take great pride in their art – and even those who dream up memorable shockers such as ‘Freddie Starr ate my hamster’ – the work of Berwin Leighton Paisner (BLP) on behalf of the Newspaper Licensing Agency and six national papers gives renewed gravitas to the trade.
BLP lead partner Simon Clark and his team were tasked to show that headlines could be protected under copyright law as a piece of literary work.
The case was unprecedented in terms of the use of online newspaper content and BLP had to show that users of press-monitoring services such as Meltwater were infringing copyright by clicking on a headline to see the introduction to a news story without a Newspaper Licensing Agency (NLA) licence.
Clark and IP senior associate Toby Headdon explored the technical legal detail of temporary page copies right through to exhaustion of rights.
By using its Lawyer On Demand service – which has since been spun off into a separate company majority-owned by BLP – the firm was able to structure the team around the client’s needs to keep down costs.
In securing a victory for the NLA via the High Court and Court of Appeal, BLP sealed a huge future revenue stream for the NLA.
The straightforward copyright issues of print journalism were untested online in any EU court, with national media and IP lawyers watching the BLP success with interest.
The result is that each end user of the Meltwater service must pay a licence fee to the NLA or they infringe copyright. Tomorrow’s chip paper is also today’s online income.
Bristows for Google Street ViewTalking of headlines, media across the globe had a field day when it appeared as if Google Street Cars had been snooping into people’s home broadband networks and collecting data.
Google announced what had actually happened – that the technology it used to collect street view had mistakenly accessed unencrypted mod-ems and picked up fragments of data.
With Google Street View already under some scrutiny from perturbed privacy watchdogs, when news of the data protection breaches was revealed, “all hell broke loose” – as Bristows described in its entry.
Big international firms such as Bird & Bird in France and Baker & McKenzie in Hungary were hired in dozens of countries to work with an army of Google in-house lawyers to beat back the wave of data protection authorities, law enforcement agencies, public prosecutors, telecoms regulators, class actions, and even dawn raids in Korea.
Despite the international nature of the case, Bristows’ single London office was chosen to lead Google’s European response to the biggest ever international privacy incident.
A team of three data protection and IP lawyers along with joint managing partner Mark Watts and associates Alistair Mann and James Brunger, got to grips with the technology involved, but they were then tasked with drafting 100-plus page submissions for each country to argue their client’s case in more than 20 different languages.
With the Metropolitan Police sniffing around under increasing pressure from the media, the Bristows team said it needed to use its “nous” and “gut instinct” in an enormous undertaking to negotiate the deletion of the data, avoid sanctions and enable its client to stay on track with its game-changing global mapping project.
DLA Piper for Thomas Cook
For sheer size and scale, DLA Piper’s work on Thomas Cook’s £750m glo-bal IT outsourcing project was epic.
The team that took on the daunting task of complex, multi-tiered contract negotiations was led by partner Kit Burden and was the size of many law firms. Spreading across Belgium, France and Germany, 20 partners and 50 lawyers had to bring together the client’s disparate web of service providers – which had built up as a result of Thomas Cook’s history of growth through M&A – into one standardised technical infrastructure.
DLA Piper had the resources and depth of expertise to put into the project, but had also agreed to a strict deadline of three months in which to complete the task.
That time limit would have been impossible if not for the firm’s unique ‘Ascendent’ methodology, which broke the project down into nine steps and, using a global ‘contract dashboard’, utilised trackers and snapshot summaries for each negotiation stage.
Thomas Cook has had its financial concerns and DLA Piper’s input into the project led to a significant reduction in costs by enabling a more flexible and price-based unit structure.
It was the first time DLA Piper had been instructed by Thomas Cook, but the success of the deal has other travel and tourism giants knocking on the door.
Osborne Clarke for Everything Everywhere
When a process or invention seems so beautifully simple, it usually belies an enormous undertaking behind the scenes. Mobile payment – known as Quick Tap – is the latest market development to take the digital industry by storm.
It allows customers to purchase goods with a swipe of their mobile phone, in the style of the Oyster Card.
The convergence of mobile phone operator Everything Everywhere and Barclays bank brought together TMT and the financial sector in what could have been a dysfunctional and doomed relationship scuppered by warring regulatory regimes.
However, a small Osborne Clarke team of three led by partner and head of financial institutions Paul Anning, with head of technology James Mullock, partner Simon Neill and associate Emily Jones, brought all the parties together to negotiate through conflicting VAT, data protection and payment structures.
As the project was so cutting edge, Anning and the Osborne Clarke team were breaking new legal ground, innovating in the TMT field to create an open-marriage arrangement between Everything Everywhere and Barclays to allow for both parties to work with other providers on future products as the technology takes off.
Throw in the detailed IP landscape, sensitive brand hierachy and responsibility for lost or stolen phones, and the complexity of the deal was in direct contrast to the wonderfully simple end product.
Powell Gilbert for the Human Genome patent
DNA analysis, human genome research, and a pioneering treatment for a debilitating disease sounds more like an article in The Lancet than the crux of a case being argued before the UK Supreme Court.
But in a fascinating biotechnology patent case – the first to be heard in the highest court – boutique IP law firm Powell Gilbert was instructed by Human Genome Sciences (HGS) to help fight off a challenge by pharmaceutical company Eli Lilly.
HGS followed lead partner Penny Gilbert and her team when she left Bristows in 2007 to set up Powell Gilbert. Her work in this novel area of law, alongside associates Bethan Hopewell and Jennifer Antcliff, has established case precedent in a previously untested field. All three lawyers have degrees in molecular and cellular biology, giving the client unrivalled specialist knowledge of the scientific issues at the heart of the case.
The appeal centred on HGS discovering and registering a previously unidentified gene, but Eli Lilly argued that the patent did not disclose anything useful to the industry and tried to revoke it.
When the case reached the Supreme Court, Gilbert and her team were able to show that it was actually an important therapeutic protein and key to the development of an antibody to treat debilitating auto-immune disease lupus.
Eli Lilly had been waiting in the wings with its own later-developed antibody.
On the back of this six-year battle, Powell Gilbert has grown to 38 fee-earners, all with scientific training.
Taylor Wessing on multiple deals
Taylor Wessing is a loud voice in the TMT sector and its widely recognised expertise with a dedicated Tech City office means it attracts blue chip clients such as Google, Spotify, Twitter and Associated Newspapers.
Among the 2011 highlights for Taylor Wessing head of technology and telecoms Graham Hann and corporate partner and Tech City head Simon Walker was work picked up via the firm’s sponsorship of sector awards.
This included advising fast-growing mobile marketing business Mobile Interactive Group on its $59m (£38m) acquisition by Velti.
What sets Taylor Wessing apart is that it advises many clients throughout their life-cycles, from start-up through to disposal, building strong and knowledgeable relationships with its TMT companies.
In February 2011, long-standing client and leading independent public WiFi operator the Cloud Networks was sold to BSkyB, with Taylor Wessing advising.
The firm has a dedicated TMT website and rotates its fee-earners in the Tech City office to offer drop-in clinics to local companies.