In observance of Pink Shirt Day, held every year on the last Wednesday of February, Alexander Holburn members wore pink to display support for anti-bullying and the firm’s commitment to eliminating any form of discrimination, bullying, or harassment from the workplace.
Pink Shirt Day raises awareness about bullying’s adverse effects and advocates kindness, acceptance, and inclusivity. Canadians wear pink shirts on this day to symbolize their dedication to a bully-free world.
For more information on Pink Shirt Day, visit https://lnkd.in/dw7szeu
#PinkShirtDay #AntiBullying #Inclusivity
Is the crypto industry in the United States dead? In the absence of formal legislation regulating the crypto industry in the United States, the Securities and Exchange Commission (SEC) has taken matters into its own hands and is singlehandedly going after crypto firms for violating federal securities laws by failing to register their activities with the SEC. The SEC’s aggressive stance against the industry has ratcheted up following criticism for its failure to act quickly enough to stop the death spiral of FTX last year. The latest crypto firms caught in the crosshairs include two of the largest, Binance and Coinbase, which are the subjects of recent SEC enforcement actions.
In recent years, the SEC, under the leadership of Chairman Gary Gensler, has repeatedly taken the position that crypto assets1 constitute “securities” subject to regulatory oversight by the Commission under the test set forth in the U.S. Supreme Court case, SEC v. W.J. Howey Co.,328 U.S. 293 (1946). Specifically, the SEC contends that crypto assets are “investment contracts” in which persons invest money in a “common enterprise” and reasonably expect to receive profits derived from the managerial or entrepreneurial efforts of others. Meanwhile, the crypto industry and its leaders have denounced this classification in the absence of specific regulation or guidance.
SEC’s Suit against Coinbase
On June 6, 2023, the SEC filed suit against Coinbase, Inc. (Coinbase) and its parent company, Coinbase Global Inc. (CGI) for violating federal securities laws.2 Coinbase is a Delaware corporation founded in 2012 that operates a crypto asset trading platform that services U.S. customers. A wholly owned subsidiary of CGI, Coinbase is registered with the SEC and trades under the ticker symbol “COIN” on the Nasdaq Global Select Market. The SEC’s lawsuit contends that Coinbase is operating as an unregistered securities exchange, broker and clearinghouse in violation of the Securities Exchange Act of 1934 (Exchange Act). In addition, the SEC contends that CGI is jointly and severally liable as a “control person” under the Exchange Act.
By way of background, Coinbase operates one of the largest global trading platforms that allows customers to buy, sell and trade crypto assets. Coinbase reportedly services more than 108 million customers accounting for billions of dollars in daily trading volume. As explained by the SEC, crypto asset trading platforms enable customers to purchase and sell crypto assets for fiat currency (legal tender issued by a country) or for other crypto assets. These platforms typically possess and control the crypto assets deposited and/or traded by their customers and, thus, function as a central depository.
Similar to traditional securities exchanges, Coinbase’s platform (1) lists names, ticker symbols, prices, market cap and trading volume for crypto assets; (2) enables customers to place various buy/sell orders; (3) matches buy/sell orders through an electronic automated matching system; and (4) settles customer trades in exchange for fees charged by Coinbase.
Since 2021, Coinbase has offered “Coinbase Prime,” which is akin to prime brokerage services marketed to institutional clients for digital assets. Prime routes orders to the Coinbase platform and to third-party platforms so that customers have access to the broader crypto marketplace.
Since 2017, Coinbase has offered “Coinbase Wallet,” which is made available to both retail and institutional customers. Wallet routes customer orders through third-party decentralized trading platforms or decentralized exchanges (DEXs) to access liquidity outside of the Coinbase trading platform. Unlike orders to buy or sell crypto assets placed through the Coinbase platform or Prime, Coinbase does not maintain custody over the crypto assets traded through Wallet. Instead, these crypto assets are “self-custodied” by customers who hold the private keys.
According to the SEC, all of the crypto assets made available for trading on the Coinbase platform, Prime and/or Wallet are “securities” within the meaning of the Howey test discussed above.3 In particular, the SEC claims that these “Crypto Asset Securities [were] offered and sold … as an investment contract and thus a security.” For each of these assets, “statements by the crypto asset issuers and promoters have led investors reasonably to expect profits based on the managerial or entrepreneurial efforts of such issuers and promoters.” Further, “This was investors’ reasonable expectation whether they acquired the Crypto Asset Securities in their initial offering, from prior investors, or on crypto asset trading platforms, including the Coinbase Platform (or through Prime or Wallet).”4
According to the Complaint, the function of “exchanges,” “broker-dealers” and “clearing agencies” are typically carried out by separate legal entities that are independently registered and regulated by the SEC. This regulatory oversight is designed to protect investors from manipulation and fraud. In addition, registered entities must comply with SEC record-keeping and inspection requirements. Here, Coinbase purportedly violated securities laws by failing to register as a national securities exchange, broker and clearing agency for transactions involving the purchase, sale and trading of crypto asset “securities.”
The SEC also claims that the Coinbase “Staking Program” constitutes the unregistered offer and sale of securities in violation of the Securities Act of 1933. Staking is a consensus mechanism or protocol used by a blockchain to validate transactions involving digital assets. The two most popular consensus mechanisms are known as “proof of work” and “proof of stake.” Under the latter protocol, crypto asset owners who commit or “stake” their assets can obtain a reward or payment.
Coinbase allegedly markets its Staking Program to customers as an investment with an expected rate of return of up to 6.00% APY. Under the Howey test for securities, participants in the Staking Program (1) invest money in the form of eligible crypto assets; (2) participate in a common enterprise with Coinbase (e.g., the Staking Program); (3) reasonably expect to profit from their participation in the Staking Program; (4) are merely “passive” investors, based primarily on Coinbase’s efforts, which are essential to the success or failure of the enterprise.
SEC’s Suit against Binance
The same week the SEC filed suit against Coinbase, on June 5, 2023, it filed a separate enforcement action for securities law violations against Binance, which operates one of the largest international crypto asset trading platforms; its U.S. affiliates BAM Management and BAM Trading; and Changpeng Zhao (Zhao), the founder, principal owner and CEO of these entities.5 Similar to the suit against Coinbase, the SEC alleges that the Binance entities were operating unregistered national securities exchanges, broker-dealers and clearing agencies for crypto assets that are securities. However, unlike the case against Coinbase, the SEC also accuses the Binance entities and Zhao of engaging in widespread nefarious activities to defraud customers and investors, reminiscent of similar allegations against FTX and its founder, Sam Bankman-Fried.
For instance, in 2019, Binance created BAM Management and BAM Trading to launch its U.S. trading platform ostensibly created to comply with U.S. laws and regulations. U.S. customers were supposedly barred from trading on Binance’s international platform. According to the SEC, defendants allowed “VIP” U.S. customers to circumvent these restrictions by masking their U.S. IP addresses to access the international trading platform in addition to forgoing Know Your Customer (KYC) documentation, which is a lynchpin of U.S. banking regulation.
In addition, the SEC Complaint highlights defendants’:
- Lack of oversight over how U.S. customers’ crypto assets are stored, secured and transferred (and potentially diverted and commingled)
- Internal controls deficiencies identified by auditors with respect to custody of digital assets
- Use of two Zhao-controlled entities (Merit Peak and Sigma Chain) as “market makers” to create liquidity for crypto assets traded on the platforms, creating a conflict of interest
- Ongoing control by Binance and Zhao of BAM’s U.S. operations and lack of independence
- Manipulative “wash trading” to artificially inflate the volume of trading activity on the platforms and price of crypto assets.
Shortly after filing its Complaint, the SEC filed an emergency motion in court seeking a temporary restraining order to freeze assets held by the defendants for U.S. customers. In support of its motion, the SEC contends that:
- There is lack of transparency regarding the custody and control more than $2.62 billion in customer assets deposited, held or traded on the U.S. platform
- Binance and Zhao have admitted their intent to circumvent U.S. laws and regulatory compliance
- Binance and Zhao continue to maintain control over U.S. customers’ crypto assets
- BAM’s lack of internal controls or trading data confounded auditors’ ability to verify that the company was fully collateralized for customers’ crypto assets
- Binance and Zhao followed a pattern and practice of commingling customer funds and moving funds outside the United States.
For now, it remains to be seen whether the Binance saga unfolds in the same vein as the collapse of FTX.
The lack of clear federal legislation in the United States regarding crypto assets means that this industry will remain subject to the whims of various state and federal regulators for the foreseeable future. For instance, earlier this year, the Federal Reserve, the Federal Deposit Insurance Corporation (FDIC) and the Office of the Comptroller of the Currency (OCC) issued a Joint Statement acknowledging the “crypto-assets risks to banking organizations.”6 These agencies continue to assess safety and soundness concerns with banking services “that are concentrated in crypto-asset-related activities or have concentrated exposure to the crypto-asset sector.” Meanwhile, in May 2023, the New York Attorney General proposed legislation to tighten regulation of the cryptocurrency industry to protect consumers and investors.
In contrast, other countries are at the forefront of crypto legislation. According to PwC, the “European Union is at advanced stages of finalizing the new Markets in Crypto-Assets Regulation. In the United Arab Emirates, Dubai authorities are setting up the world’s first authority focusing solely on virtual assets. Switzerland has integrated one of the more mature regulatory framework for digital assets.”7
For now, the lack of an established regulatory framework in the United States, in addition to the aggressive stance taken by the SEC and other regulators against the crypto industry, may cause a flight to safety and predictability in crypto-friendly nations. Meanwhile, U.S. companies in this space should take heed of the risk of engaging in issuing, selling and/or trading unregistered crypto assets that may be viewed as securities.
1 The SEC broadly defines crypto assets to include digital assets, tokens, cryptocurrencies, virtual currencies, and digital coins issued and/or transferred using blockchain or distributed ledger technology.
2 SEC v. Coinbase, Inc., et al., Case No. 1:23-cv-04738 in the U.S. District Court for the Southern District of New York.
3 These crypto assets specifically include those traded under the following ticker symbols: SOL, ADA, MATIC, FIL, SAND, AXS, CHZ, FLOW, ICP, NEAR, VGX, DASH, and NEXO.
4 SEC v. Coinbase, Inc., Complaint, par. 126.
5 SEC v. Binance Holdings Limited, et al., Case No. 1:23-cvo-01599 in the U.S. District Court for the District of Columbia.
6 Federal Reserve, FDIC and OCC Joint Statement on Crypto-Asset Risks to Banking Organizations (January 3, 2023).
7 PwC Global Crypto Regulation Report 2023 (December 19, 2022).
Wilson Elser is recognized in The Legal 500 United States 2023 in the following three practice areas.
Insurance: Advice to Insurers Tier 4
Wilson Elser’s Insurance Practice is headed by James Stankowski (Partner, California); professional liability specialist Thomas Quinn (Partner, New Jersey); Price Collins (Partner-Texas), who specializes in handling coverage determinations, claims, settlement negotiations and bad faith avoidance; and Michael Duffy (Partner, Chicago), who advises on coverage, extra-contractual liability and reinsurance matters. Key lawyers also recognized are Jonathan Meer (Partner-New York) and Kate Tammaro (Partner, New Jersey).
Cannabis Tier 4
Wilson Elser’s Cannabis Law Practice co-chair Ian A. Stewart works with insurance companies on new policy forms and underwriting practices, while co-chair Dean A. Rocco assists ancillary businesses and financial institutions that work with cannabis companies on regulatory compliance. All key lawyers are based in Los Angeles.
The Legal 500 testimonials:
“They have industry knowledge in a relatively newer market that other firms don’t possess.”
“Ian Stewart has the most knowledge out of every cannabis attorney I have spoken to. He recognized potential coverage issues and is able to assist in creating contracts that enable our company to navigate around them.”
“They have built an excellent practice across the industry and indeed across their firm, they are very knowledgeable and practical.”
Shipping Litigation & Regulation Tier 3
Wilson Elser’s Admiralty & Marine Practice is routinely sought by international group Protection & Indemnity clubs and major cruise lines for casualty response work. The New Orleans–based team is headed by longstanding maritime law specialist Antonio Rodriguez, who has extensive experience in matters involving collisions and other significant shipping and pollution casualties. Providing support are Jake Rodriguez and Mike Harowski. Working across the firm’s Houston and New Orleans offices, Kent Adams covers catastrophic personal injury, offshore, maritime, insurance and environmental matters. John Bridger (Of Counsel, Houston) handles a range of civil and maritime litigation. Key lawyers named are Otis Felder (Partner, Los Angeles), Raymond Perez (Partner, White Plains, NY), Ronald White (Of Counsel, Houston) and Daniella Gauer (Associate, Miami).
The Legal 500 Testimonials:
“Jake Rodriguez impresses with his knowledge of maritime law and practice, and his judgment and skill in litigation strategy.”
“Jake Rodriguez’s knowledge, skill and abilities are at a high level when compared to other firms. Clients are also impressed with his responsiveness to enquiries.”
The Legal 500 research is based on feedback from 300,000 clients worldwide, submissions from law firms, interviews with leading private practice lawyers and data from a team of researchers experienced in the legal market. The Legal 500 was published June 7, 2023.
About The Legal 500
Wilson Elser announced it is again certified a Gold Standard Firm by the Women in Law Empowerment Forum (WILEF). The WILEF recognizes women attorneys from the largest law firms and corporate law departments in the United States, London and Paris.
The organization’s highest honor, Gold Standard Certification, requires a U.S. law firm to have a total of at least 300 practicing attorneys and to meet certain mandatory criteria for women and women of color. This initiative is the centerpiece of the WILEF’s continued commitment to being the change agent for women in law firms to rise within the firm as business developers and leaders.
“Wilson Elser is proud to be again named a WILEF Gold Standard certified law firm,” said Carolyn O’Connor, Chair of Wilson Elser’s Women Attorneys Valued & Empowered (WAVE) Employee Resource Group. “Gold Standard certification is proof that Wilson Elser is committed to diversity and equity in all ranks of firm leadership.”
Angela Russell, Chair of the firm’s Diversity & Inclusion Committee, added, “Wilson Elser is a leading national law firm for many reasons, and our efforts to advance the next generation of women attorney leaders is an important one.”
Wilson Elser’s practice areas and attorneys were ranked in five department categories and eight individual categories in the prestigious Chambers USA 2023 Guide.
In this year’s rankings, the firm maintained all of its 2022 firm and individual rankings, and added three firm and two individual attorney rankings. Chambers USA is the leading legal directory, ranking the top lawyers and law firms across the United States. The legal rankings are based on in-depth market analysis and independent research, all conducted by a dedicated team of Chambers researchers.
The Chambers USA 2023 rankings for Wilson Elser
Five firm practice rankings:
Texas – Insurance
Nationwide – Cannabis Law
NEW! New Jersey – Insurance
NEW! Nationwide – Transportation: NTSB Specialists
NEW! Nationwide – Transportation: Shipping/Maritime: Litigation (outside New York)
Eight individual attorney rankings:
Price Collins – Texas – Insurance
Thomas Quinn – New Jersey – Insurance
Dean Rocco – Nationwide – Cannabis Law: Western United States
Ian Stewart – Nationwide – Cannabis Law: Western United States
Thomas Tobin – Nationwide – Transportation: NTSB Specialists
Antonio Rodriguez – Nationwide – Transportation: Shipping/Maritime Litigation (Outside New York)
NEW! Jake Rodriguez – Nationwide – Transportation: Shipping/Maritime Litigation (Outside New York)
NEW! Michael Harowski – Nationwide – Transportation: Shipping/Maritime Litigation (Outside New York)
On May 1st, Alexander Holburn celebrated its 50th anniversary with specialty coffee booths, a champagne toast, and remarks from Managing Partner, Chris Hirst. A momentous occasion for the firm and a testament to its success over the past five decades.
Chris spoke to ‘Business in Vancouver’ about the secret of their success over the last fifty years in an article published on Monday.
‘Looking back with grace and gratitude, while looking forward with optimism and determination’.
It’s with this spirit that law firm Alexander Holburn proudly celebrates its 50th anniversary by highlighting the very people who’ve brought this landmark occasion to fruition.
“It is pretty incredible to reflect on, and I think the reason for our longevity is because of our strong culture of support, mentorship, empathy and independence,” says managing partner Chris Hirst.
Hirst attributes some of the firm’s longevity to founding partners William (Bill) Holburn, K.C. and Stuart Lang, who, along with Hirst’s predecessor Bruno De Vita, K.C., helped set a standard of professionalism and excellence that continues to permeate across the firm today. The partnership also has a voice in shaping the firm, and there is an atmosphere of collaboration and leadership that makes people feel appreciated and encouraged to do their best.
Those hallmark qualities are brought to bear when looking at the firm’s retention and recruitment numbers: 20 per cent of Alexander Holburn’s employees have been with the company for 25-plus years, while a further 40 per cent of the team has spent the majority of their careers – at least 10 years – with the firm.
“It has always been about our people, our shared experience, and our commitment to one another. I hope that is why others wish to join us and why I expect we have a culture of ‘lifers,’” says partner and director of associate and student programs Christine York, who’s been with the firm for 27 years.
With longevity comes growth. The firm opened a Toronto office in 2019 and now has a small footprint in Kelowna as well. This growth includes a breadth of services and areas of expertise: insurance law, business law, real estate, construction law, mergers and acquisitions, class actions, wills and estates, defamation, aviation, strata and police law, to name just a few.
This is a firm that has quite literally overseen tens of thousands of cases over its storied history and whose clients range from large multinational organizations with complex legal issues to small and medium sized businesses at all stages. Clients have come to expect legal advice on par with large international firms while retaining the attention to client care and commitment that comes with a smaller firm.
So, what’s next?
“We’re always looking for ways to improve our service delivery and stay on top of trends and innovations,” Hirst says when looking ahead to the next 50 years.
“But some things are going to stay the same. We are always focused on getting the fundamentals right, continuing to build on a team of best-in-class lawyers and support staff and bringing them together with the goal of delivering outstanding legal and client service.” To learn more about Alexander Holburn and its suite of legal services, visit ahbl.ca. ‘
In Mathur v Ontario, the climate litigation filed against the Ontario government by seven young people was dismissed, but not without clarifying some key points. This litigation forms part of a wider trend by youth to hold governments accountable on climate action.
Earlier this month, the Ontario Superior Court of Justice released Reasons for Judgment in the closely watched climate change action of Mathur v Ontario. The applicants, a group of youths, commenced a suit against the Province of Ontario alleging that the Province had breached the Canadian Charter of Rights and Freedoms (the Charter) by abdicating its responsibility to address climate change.
In 2020, the Province lost a preliminary motion to have the claim dismissed on the basis that it was plain and obvious that the claim did not present a reasonable cause of action. However, after a full hearing on the merits, Justice Vermette agreed with the Province that its actions in addressing climate change did not violate the applicants’ s7 Charter rights to life and security of the person or their s15 right to equality.
The legislation at the center of the case is the Cap and Trade Cancellation Act 2018 (the CTCA). Section 16 of the CTCA repeals the Climate Change Act, which had established targets for reducing greenhouse gas (GHG), including a reduction of 37% below 1990 levels by the end of 2030. Under the new legislation, the Province implemented a less ambitious target of reducing GHG levels to 30% below 2005 levels by 2030. Notably, this target is out-of-sync with the commitments recently made by the Federal government. In March 2022, Canada submitted its most recent national GHG reduction targets under the Paris Agreement, announcing a target of 40-45% emissions below 2005 levels by 2030.
The applicant’s argued that the repeal of the Climate Change Act and its associated targets, and the passing of the new less ambitious targets, was unconstitutional as it deprived future generations of their rights to life and security of the person by subjecting them to the increasing negative effects of climate change. Further, it was argued that these negative effects would be experienced disproportionately by young people, a “generational cohort” characteristic analogous to the protected characteristic of age already recognized in Charter jurisprudence.
The Court first considered whether challenges on constitutional grounds to Ontario’s repeal of the Climate Change Act and introduction of the new target were reviewable by the courts.
The Court held that the applicable test is whether the question is purely political in nature, or whether it has a sufficient legal component to warrant the intervention of the judicial branch. Prior case law has held that challenges to state action under the Charter must involve specific legislation and/or state action. Questions involving generalised government policy are non-justiciable. The judicability of state action concerning climate change had been subject to divergent findings in other Canadian jurisdictions.
Here, the applicants challenged specific state action and legislation so the Court found this aspect of their claim was generally justiciable.
However, the Court found that the portion of the applicants’ claim which sought a determination of Ontario and Canada’s “fair share” of global carbon contributions was not justiciable, as the issue did not have a sufficient legal component to allow a court to choose among competing approaches.
Repeal of the Climate Change Act did not violate Charter rights
The Court rejected that the enaction of s16 of the CTCA, and corresponding repeal of the Climate Change Act, was itself a violation of the applicants’ Charter rights, because a mere change in the law cannot be the basis for a Charter violation. The Court held that “in the absence of a constitutional right that requires the government to act in the first place, there can be no constitutional right to the continuation of measures voluntarily taken, even where those measures accord with or enhance Charter values”.
Is there a state obligation to protect s7 rights?
The Court found the applicants’ complaint, at its core, was that “Ontario did not aim sufficiently high when setting the target” and therefore imposed an “increased risk of death and/or negatively impacts or limits the applicants’ security of the person”. Under normative Charter jurisprudence, the state has no obligation to ensure the provision of rights protected by s7. Rather, the state is simply obliged not to interfere with them. The arguments presented by the applicants raised the legal issue of whether s7 of the Charter imposes positive obligations on the state.
Despite no decisions having yet recognised a freestanding positive obligation on the state to protect s7 rights, the Supreme Court of Canada in Gosselin v. Quebec (Attorney General) 2002 stated that the Charter is a “living tree”, capable of adapting to changing societies, and that a freestanding positive state obligation might, in the future, exist in special circumstances.
Section 7’s adaptability to changing times has likewise been recognised in decisions of the Federal Court of Appeal, opining that, some day, the provision may evolve to encompass positive obligations, possibly in the domain of climate rights.
No breach of fundamental justice
Recognising that s7 of the Charter could, in theory, include positive state obligations, the Court analysed whether the government action of setting the target through s 3(1) of the CTCA was contrary to the existing principles of fundamental justice, assuming (and not deciding) that the state had positive obligations to protect the applicants’ s7 rights in this case.
The Court found the applicants had established that by setting the target at levels below what was required to avoid the accepted consequences of climate change, Ontario had contributed to an increase in the risk of death or risks to the security of the person. The Court rejected Ontario’s argument that it was necessary to show the risks would actually materialise. The Court also rejected the argument that Ontario’s GHG emissions causes no “measurable harm”, finding that “Ontario’s emissions contribute to climate change and the increased risk that it creates”.
Because the applicants had met their burden to prove the risks complained of were likely to occur, and assuming the state had positive obligations to prevent these risks from materialising, the Court next analysed whether the deprivations were in accordance with the principles of fundamental justice.
The appellants relied on two well-established principles of fundamental justice, the principles against arbitrariness and gross disproportionality, and one novel principle, the notion that “a government cannot engage in conduct that will, or could reasonably be expected to, result in the future harm, suffering, or death of a significant number of its own citizens”.
The Court found that the principle against arbitrariness was not well suited to a positive claim case under s7. The test for arbitrariness under existing law requires a finding there is no rational connection between a government action’s purpose and its effects. The court found that the purpose of the target was to “reduce GHG in Ontario to address and fight climate change”. As the objective was not to completely eradicate the effects of climate change, it could not be said that the target had no rational connection to the purpose. The Court concluded “incrementalism and imprecision… do not lead to a conclusion of arbitrariness”.
Turning to the principle against gross disproportionality, the Court explained that this principle is infringed “if the impact of the restriction on the individual’s life, liberty or security of the person is grossly disproportionate to the object of the measure”. The Court found that this principle had no application to this case, given that the applicants were not arguing that the target created too great an infringement on their rights. Indeed, they were arguing the opposite, namely that the target was not aggressive enough.
The Court found that previously recognised principles of fundamental justice were poorly suited to analysing a s7 Charter claim advanced under a positive rights and obligations framework. The Court next considered whether a proposed new principle of fundamental justice, societal preservation, ought to be recognised.
Principles of fundamental justice are concerned with how the legal system operates. They are not co-extensive with important public policies and state interests, and must instead be a basic tenet of the legal system. The Court found no support that “social preservation” met this requirement and found that adopting such a principle would create significant analytical challenges in applying the existing legal test for determining whether s7 rights have been infringed.
As the applicants were unsuccessful in establishing that the Province’s actions were contrary to any specific principal of fundamental justice, the claim under s7 was dismissed.
No breach of s15 right to equality
Unlike the potential for positive state obligations under s7 jurisprudence, it has been conclusively determined that s15 of the Charter does not impose a general, positive obligation on the state to remedy social inequalities or enact remedial legislation.
Despite agreeing with the applicants that young people are disproportionately impacted by climate change, the Court reasoned this disproportionate impact is caused by climate change itself, and not the target or the CTCA. Similarly, the worsening impacts of climate change are not caused by the disputed state action. Because the target and the CTCA have the purpose of reducing GHG emissions and moderating the effects of climate change, it cannot be said the effects of climate change are worsening because of the target or the CTCA.
Finally, the Court rejected the applicants’ arguments that a “generational cohort” characteristic was analogous to an age characteristic already recognised as protected under s15. The Court recognised that the “impacts of climate change will be experienced by all age groups in the future”, and that the “generational cohort” distinction was a temporal distinction that does not violate s15, because it is not based on an enumerated or analogous ground.
The Ontario Superior Court of Justice recognised that the natural world is rapidly changing. Unfortunately for the applicants in Mathur, the Canadian legal system has not yet changed in kind. Mathur represents an ambitious claim and carefully considered judgment regarding the nature of Charter rights in a world increasingly impacted by climate change. The Court made significant remarks regarding the existential threat posed by climate change and the potential existence of positive state obligations to take steps to fight climate change. However, these positive obligations, if recognised, would require adaptations of existing legal principles and tests. Justice Vermette was not prepared to rework the existing principles and tests to find in favour of the applicants. This case seems destined for the Court of Appeal where the applicants will no doubt hope to find a bolder approach to interpreting and expanding upon the current legal framework. Inspiration can perhaps be found in decisions such as Urgenda v Dutch Government and Neubauer v Germany.
Further youth action on the cards
This month we have also heard that the Hawaiian youth litigation against the Hawaiian Department of Transportation has been allowed to proceed to trial in the Autumn. It is alleged that the establishment, operation and maintenance of the state’s fossil fuel-based transportation system allows greenhouse gas emissions that violate the youth group’s rights under state constitutional law to a clean and healthful environment. This follows the litigation in Held v Montana and Juliana v US, all brought by youth groups.
Before that, the US trial in Held v Montana is due to begin on 12 June 2023, as the first ever constitutional climate trial and first ever children’s climate trial in US history. Again, the litigation asserts that by supporting a fossil fuel-driven energy system, which is contributing to the climate crisis, Montana is violating their constitutional rights to a clean and healthful environment; to seek safety, health, and happiness; and to individual dignity and equal protection of the law. The youths also argue that the state’s fossil fuel energy system is degrading and depleting Montana’s constitutionally protected public trust resources, including the atmosphere, rivers and wildlife.
Co-authored by Legalign colleagues Scott Harcus, Partner, AHBL Vancouver and Simon Konsta, Partner, DACB London.
Stratton Horres (Senior Counsel-Dallas, TX) and frequent co-author, attorney David Steiger, have weighed in on the hotly debated subject of the use of Artificial Intelligence (AI) in the legal market. Their article, “Where the Rubber Hits the Road: Practical AI Solutions Are Coming to the Legal Market,” appeared on April 4, 2023, in Reuters Legal News and Westlaw Today. The authors contend, “What is driving adaptation of increasingly sophisticated AI into the business of law is the tremendous savings in time and money that result from ridding old processes of unnecessary duplication of effort and the value add that comes from leveraging the power of ever-growing amounts of data.” They also highlight some of the most promising AI products for law firms currently available.
Tomorrow at Zywave Cyber Risks Insights conference, Hans Allnutt will be moderating a panel of fellow Legalign Global™ cyber experts, Wotton + KearneyNicole Gabryk & DAC Beachcroft FranceChristophe Wucher-North, along with Sandra ColeBeazley & Ernie KoschinegCIPRIANI & WERNER PC discussing Cyber Litigation and Regulation.
See below how to vote for DACB’s cyber team.
Being proud to be part of the team and the buzz of the worldwide team spirit are just a few of the things that Christophe Wucher-North of DAC Beachcroft France enjoys about being part of a global alliance.
Continuing our People Behind the Suits Interview series, Christophe tells us about his career trajectory to date, being a partner of DAC Beachcroft in Paris from its inception, what drew him to the profession in the first place and amongst other things, what he’d be if he weren’t a lawyer and it’s a pretty big change ! But tellement français – oui oui bonjour as Sylvie from ‘Emily in Paris’ would say…
Tell us about your journey to becoming a partner at DAC Beachcroft France
It was a very exciting step to move from my former French firm to open the Paris DACB office in 2019 with my business partner . It all came about at the right time and quite organically as we realized that our work and our clients were totally aligned. In fact, our first contacts with DACB have been organized thanks to existing relationships with a mutual client!
What made you decide to become a lawyer?
It was a toss up between becoming a lawyer or a judge although it is a totally different academic route! Actually, in France you have to decide very early on as the training courses are very different. But it became quite clear to me that being a lawyer would be personally and intellectually more challenging.
What do you think is a major issue facing your area in insurance law?
Keeping abreast of the innovative approaches in the insurance market in order to understand the clients’ needs and to help them to solve specific problems from outside their own organization.
What’s the best piece of advice (work or personal) that you have been given?
To keep going and never give up!
What do you enjoy most about being part of a global alliance ?
Our global team spirit …
What do you get up to outside of the office?
I like to learn new things, enjoy my hobbies and spending time with my family.
Complete this sentence – If I weren’t a lawyer, I would be…
A famous writer ! Well, I always dreamt about it …
And why not we say !
‘The people you work with are often more important than the work you do – make sure you surround yourself with a supportive team and environment’
Great advice given to Nicole Gabryk, a key member of Legalign’s Cyber team at Wotton + Kearney in Sydney, who kickstarts our new People Behind the Suits Series interview. Nicole shares her backstory, what attracted her to the profession and other fascinating insights, including who would play her in a Netflix version of Legalign…
Nicole will be speaking on panel at the Zywave Cyber Risk Insights conference in London on Wednesday 19th April – there’s is still time to register for tickets http://bit.ly/3mwO5hn
Tell us about your journey to becoming a partner at Wotton + Kearney.
I moved from South Africa to Australia in late 2021 and requalified in a new jurisdiction (after practicing as a lawyer in South Africa for over 10 years). I have been working in cyber insurance and data protection since 2015 (at which stage the area of law and insurance was very much in its infancy) and have focused on understanding the unique challenges faced by our insurance clients as a result of the ever-growing cyber risks in the Australian market. I have been very fortunate to be surrounded by brilliant colleagues who supported my career progression to become a partner in a niche and emerging field of law.
What made you decide to become a lawyer?
I was always interested in the legal profession and how law was a field that was able to shape society. Cyber Insurance and privacy law is a new field and a fantastic area of law to be involved in as it adapts and responds to newly emerging digital challenges.
What do you think is a major issue facing your area in insurance law?
Each month the cyber landscape seems to shift – threat actors get more sophisticated and new laws are enacted (or adapted) to protect individuals in the digital era, the challenges facing cyber insurers continue to evolve – this includes everything from increased third party risks (for example higher regulatory penalties and more class action lawsuits), increased first party and business interruption costs resulting from cyber incidents and more complex regulation for insureds.
What’s the best piece of advice (work or personal) that you have been given.
The people you work with are often more important than the work you do – make sure you surround yourself with a supportive team and environment.
What do you enjoy most about being part of a global alliance
The ability to share knowledge and insights with my fellow Legalign colleagues to ensure that we are keeping up to speed with global trends that impact the insurance industry, which in turn helps me provide more informed advice for local Australian clients.
What do you get up to outside of the office
I love being outdoors with my family – we love to go fishing, head out on the boat or to the beach
Complete this sentence – If I weren’t a lawyer, I would be…
amazed to have so much time on my hands… and hopefully use that time to be off travelling to new places (so much to see, so little time)
If Legalign were a fictional law firm on Netflix, who would play you ?
As a career in law can sometimes resemble The Hunger Games … I would go with Jennifer Lawrence
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