Vintage Filings Legal Blog

Defying the conventional wisdom that consumers in emerging markets simply want “no-frills” devices and services, Strategy Analytics has identified sizable numbers of users who want advanced products – and are willing to pay for them.

The “Selective Connectors,” segment for example, makes up 19% of the population and spent an average of $191 for their mobile phones, which they want to use to access the Internet, watch TV and videos and check their email.

“Samsung, Motorola, and Sony Ericsson could realistically challenge Nokia in this segment,” notes David Kerr, Vice President of the Strategy Analytics Global Wireless Practice. “Well-designed, mid- to high-end smartphones could be very well received.”

Tom Elliott, Director of EMCS and the report’s author cautions, “They’re not afraid to spend money. However, the ‘Selective Connectors’ purchase items because they need them, and are not buying the next glittering new thing because it’s new.”

The four other segments identified in this research have their own unique communications needs and usage profiles, and represent real opportunities for carefully targeted offerings from operators, MVNOs, and device OEMs.

-A Miami-Dade County jury awarded Amanda Slavin $38,323,196 in compensatory damages against Defendants McKesson Medication Management LLC and a local neurosurgeon today, announced lead counsel Julie Braman Kane, partner at the Coral Gables-based law firm Colson Hicks Eidson, who tried the case with her partner Joseph J. Kalbac Jr.

On October 24, 2003 Miami-Dade county resident Amanda Slavin underwent intraspinal surgery for a repair of a spinal fluid leak. During surgery, the neurosurgeon injected Slavin’s intrathecal space with Methylene Blue which operating room personnel acquired from a medicine cabinet maintained by McKesson Medication Management LLC. McKesson had contracted with Mt. Sinai to run their pharmacies and train Mt. Sinai’s nursing and medical personnel regarding pharmaceutical issues. McKesson did not provide the doctor or any of Mt. Sinai’s medical personnel with training or with the information the FDA required indicating that Methylene Blue was contraindicated for intraspinal injection.

Following the surgery, Slavin developed ascending adhesive arachnoiditis, a debilitating condition characterized by severe burning pain and neurologic disability. She has subsequently undergone multiple surgeries, is bedridden and in severe pain, and has been forced to give up her profession as a nurse.

The lawsuit alleged negligence against McKesson Medication Management LLC for failure to provide training of the nursing or medical staff regarding obtaining information about medications used during surgery, as they were required to do under their contract wit Mt. Sinai.

The lawsuit also alleged that the doctor fell below the standard of care in the care and treatment of Amanda Slavin by using Methylene Blue intraspinally despite the contraindication and warning against the same.

The Jury agreed and found both McKesson Medication Management LLC and the neurosurgeon were negligent and at fault for Amanda Slavin’s damages.

“While no amount of money will fairly compensate Amanda for this catastrophic injury, which has rendered her in severe pain and bedridden, the verdict recognizes the tremendous harm that the Defendants’ negligence caused her,” said Kane.

“This tragedy easily could and should have been prevented by the Defendant McKesson, had the medical staff been trained of the risk of using Methylene Blue during spinal surgery, which was their responsibility to do under their contract,” said Kalbac Jr., who assisted Kane in the case.

Wolters Kluwer Health, a company that provides information for healthcare professionals, announced today that the United States District Court for the District of Massachusetts has granted final approval to the amended settlement between Medi-Span and the plaintiffs who filed a class action lawsuit against them in May of 2007.

The plaintiffs alleged that Wolters Kluwer Health’s Medi-Span negligently published Average Wholesale Price (AWP) information that had been wrongfully inflated by First DataBank, Inc., a prior owner of Medi-Span. Wolters Kluwer Health continues to deny the plaintiffs’ allegations and any liability based on those allegations. In addition to other provisions, Wolters Kluwer Health has agreed to the following terms as a part of the amended settlement:

• Adjust to 1.20 the mark-up factor applied to Wholesale Acquisition Cost (WAC) to determine the AWP that Medi-Span publishes for the 1,442 NDCs that were identified in the plaintiff’s complaint and that currently have an AWP that is based on a markup factor in excess of 1.20.
• This adjustment will take place no earlier than one hundred eighty (180) days from March 17, 2009.

Independent of the amended settlement, Wolters Kluwer Health’s Medi-Span has decided to implement editorial policy changes which will apply the same adjustments required by the settlement to all other NDCs in the Medi-Span files whose AWP is determined by a markup factor to the product’s WAC or Direct Price (DP) in excess of 1.20. In addition, Medi-Span will discontinue publishing current AWPs for all products in the Medi-Span files within approximately 2 years of March 17, 2009.

Canwest Global Communications announced today that it has received $34 million in full settlement of amounts owing to its subsidiary, Canwest Media and Canwest Publications, pursuant to an arbitration award in connection with its dispute with Hollinger International which is now the Sun-Times Media Group.

In January 2009, the arbitrator awarded Canwest approximately $51 million, relating to unresolved adjustments and claims associated with the 2000 acquisition by Canwest of certain newspaper assets from Hollinger.

CMI has received $30.5 million of the settlement that will now be deposited as cash collateral under its senior credit facility. This will increase the balance of the collateral deposit to approximately $50 million. The remaining $3.5 million in settlement proceeds will benefit Canwest Publications Inc., a subsidiary of Canwest Limited Partnership.

Online retailers have spent years optimizing their digital marketing and customer retention strategy. However, many online retailers still struggle to maximize the numerous sales opportunities available through more effective email marketing, a new study from Return Path reveals. The Increasing Revenues By Optimizing Emailing Practices with Online Buyers report conducted by Return Path’s newly revamped Professional Services Group discovered that while basic transactional email practices are excellent, many well-known brands missed opportunities to maximize sales and up-sell potential by better targeting messages to buyers and including promotions in transactional messaging.

The report was conducted by purchasing items from 45 online retailers, monitoring the transactional and promotional message streams, and comparing those emails messages with messages received by registering for the same email programs without making a purchase.

The new study discovered that:

• 31% of companies added customers to their email lists – following a purchase – without requesting permission.
• 58% of retailers sent the same first promotional email to buyers as to non-buyers – missing opportunities to personalize or adapt the first promotional email based on a customer’s purchase.
• Only 15% of retailers used data they received during the purchase process to target their promotional messages to buyers.

“Online retailers have become very sophisticated in the art of selling online. And, almost every online retailer has some type of email marketing program. However, retailers still struggle to integrate purchase history and customer data to deliver truly personalized and relevant email messages,” said Margaret Farmakis, Senior Director of Email Response Consulting at Return Path. “This type of integration isn’t necessarily easy – it requires time, technical resources and marketing expertise. But, when done right, it can exponentially increase response rates by making email more engaging for recipients.”

Software-as-a-service (SaaS) has evolved beyond its early roots in customer relationship management (CRM) and human capital management (HCM) applications — though both applications continue to demonstrate high potential for growth in the enterprise — and is now gaining traction in areas such as Web conferencing, collaboration, and IT service management (ITSM). These categories will experience significant SaaS success over the next decade, according to research published by Forrester Research.

“SaaS applications have advanced beyond early market applications in human resources and CRM to become a game changer in the enterprise software market,” said Liz Herbert, senior analyst, Forrester Research. “SaaS adoption continues to increase, and it is now relevant for a wide array of applications. This new research provides strategic direction to end users evaluating SaaS technologies and planning their next decade of investments.”

The following technologies are poised to experience significant success in the enterprise market:

• Collaboration. Although its long-term future is unproven, Forrester’s market data has shown SaaS collaboration to be one of the hotter areas of SaaS adoption, with the potential to significantly impact the collaboration market.
• Web conferencing. Already heavily SaaS-based, Web conferencing technologies continue to move in that direction. It is an ideal candidate for SaaS, and many companies are comfortable using this technology as SaaS.
• CRM. One of the earliest categories where SaaS adoption took off, this category is already mature; however, some companies with established on-premise CRM strategies will be slow to — or in many cases will never — switch over.
• HCM. SaaS deployment of HCM/HR solutions has been popular, however many of them have been niche solutions by small vendors. Consolidation in this space has started to create broader suite offerings, increasing the potential growth of these technologies.
• ITSM. These solutions in the SaaS model are growing in popularity, but many of the larger vendors have yet to enter this space. As established vendors continue to enter the market, SaaS has the potential to transform the world of IT applications.
• Online backup. Particularly for small and medium-size businesses (SMBs), PCs, and remote location, online backup has already attracted strong interest. One area of concern is recovering large quantities of data in a short time frame.

Forrester predicts the following technologies will have minimal success using the SaaS model:

• Business intelligence (BI). The SaaS BI space is largely unproven. Though there are early adopters, many are still skeptical as to its potential, particularly where large volumes and real-time data transfer are concerned.
• Integration. As SaaS solutions flourish in the enterprise, SaaS-specific integration solutions will naturally rise, too. However, firms should not expect any magic integration solutions, SaaS or otherwise.

Businesses which do not embrace the online revolution are up to 30% more likely to fail according to estimates from Tenon Recovery.  Retailers are among the leading casualties being reported on a daily basis in the epidemic of companies being placed in administration and liquidation. Tenon Recovery believes that many are struggling because they have been building their businesses in bricks and mortar rather than investing in powerful e-commerce solutions.

The value of online retail shopping has risen from £46.6bn in 2007 to £53.2bn in 2008 at a time when the number of high street retailer casualties across the length and breadth of the UK is soaring. This is having a major impact on UK businesses.

Not only are the costs of building and maintaining an online operation substantially lower, but online retail is capturing the time-poor and bargain hunters who want to let their fingers do the searching rather than traipsing around the high street.

This is leading to an increase in the number of internet start ups by entrepreneurs who, after finishing in the office, go home to build their own business.

Carl Jackson, National Head of Tenon Recovery, said:  “By transferring from bricks to clicks, retailers can boost their profits substantially, reduce their running costs and capture consumer spend around the clock. A business needs far less capital to create an online empire than expand its presence on the high street.

The Big Money, a business site from The Slate Group, launched Making Payroll, a weekly column that explores issues facing entrepreneurs, written by Jonathan Weber, the publisher and CEO of New West Publishing. Weber’s columns will have a strong focus on conducting business on the Web and outside of a major metropolitan city.

“Starting and running your own company is a daunting opportunity, especially during these economic times. Jonathan’s a terrific journalist and has had success in forming his own company, and we couldn’t think of a better person to write about the complexities of entrepreneurship in a useful, entertaining way,” said James Ledbetter, Editor of The Big Money.

Making Payroll will cover topics including how policy affects small businesses, the credit crunch, marketing in an economic downturn, special opportunities just for Web entrepreneurs and how to overcome Twitter-phobia and take advantage of all social media.

Users will have an opportunity to discuss and debate issues through a comments section and regular online discussions with Weber and other entrepreneurs.

This past month an arbitral tribunal issued its final award in the dispute between Vivendi and Elektrim.  The tribunal awarded damages of 1.876 billion euros (plus accrued interest from February 2005) to Vivendi for intentional breaches by Elektrim of the investment agreement entered into in September 2001 regarding their joint venture Elektrim Telekomunikacja and their investment in Polska Telefonia Cyfrowa.

This final award follows a partial award rendered on 19 March 2008 which declared that “Elektrim breached the basic premise of the [investment agreement] by systematically acting against the interests of Telco in furtherance of its own interests and by refusing to acknowledge Telco’s right to the economic benefit of the PTC shares.” All of Elektrim’s counterclaims against Vivendi have been dismissed.

Elektrim had received more than 1.8 billion euros from Vivendi to transfer the PTC shares to Telco and protect Telco’s economic interests therein. Vivendi is the largest creditor of Elektrim and this final award confirms its claim, of which recognition is requested in Elektrim’s bankruptcy.

The confirmation of Telco’s ownership rights on the PTC shares is still pending before the Polish courts.

Sponsorship dollars for a company can either help establish a brand in hard to reach markets, or can simply be a wasteful use of money.  Sponsorships in the auto and motorsport industries have been highly debated lately, especially with businesses tightening their excess marketing budgets during the recession.

Automakers and dealers are being forced to question the value of every dollar spent. With that in mind why would any manufacturer sponsor motorsports – especially in these challenging times? The answer is clear: because it sells cars and trucks.

In the recent new vehicle buyer survey by Foresight Research, motorsports influence is compared to 15 different forms of marketing communications used by buyers. Interestingly, among the total sample of new car and truck buyers 43% indicated that they had watched at least one motorsports event in the last 12 months. 14% had attended at least one race and 23% indicated that motorsports had at least some influence on their new vehicle purchase decision.

But what may be the most compelling reason to be involved in motorsports is the power that some fans can have in the purchase decision of other buyers. “Shouters” are people who influence the automotive purchase of others and are often influenced by motorsports. This group of buyers reported giving an average of 10 new vehicle recommendations per year to other people. It’s this strong power of influence that makes motorsports sponsorship deliver a better ROI than many other forms of marketing.

Among those who were influenced by motorsports, 67% said that power and performance was a key message. But a whopping 60% reported price and value as key takeaways and 56% learned about a specific vehicle make and model. How does this happen? 59% of race attendees visited the manufacturer’s display.