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What Does Brexit Mean for the Copyright Directive in the UK?

Posted in Media and Entertainment, Uncategorized

Companies may face a challenging regulatory environment following the EU-wide implementation of the Copyright Directive by 7 June 2021.

By Deborah J. Kirk and Rachael Astin

On 21 January 2020, the UK government confirmed that the UK will not be required to implement the Directive on Copyright in the Digital Single Market 2019/790 (Copyright Directive) and that it has no plans to do so.

The UK left the European Union on 31 January 2020 (Exit Date), and the implementation period will end on 31 December 2020. As the deadline for transposing the Copyright Directive into Member States’ national laws is 7 June 2021, the UK will not be required to implement the Copyright Directive, and the UK government has confirmed that it has no plans to do so. Furthermore, the UK government confirmed that any future changes to the UK copyright framework will be considered as part of the usual domestic policy process. Continue Reading

New Corporate Governance Code for Italian Equity-Listed Issuers

Posted in Finance and Capital Markets

The four-pronged Code aims to encourage issuers in Italy to focus on long-term sustainability and engagement.

By Antonio Coletti and Isabella Porchia

A new edition of the Corporate Governance Code was released on 31 January 2020. The new Code focuses on four essential objectives and principles: sustainability, engagement, proportionality, and simplification.

Sustainability: The new Code intends to encourage Italian equity-listed issuers to adopt strategies based on sustainability. It recommends sustainable success as a priority for company management — defined as long-term value for shareholders and stakeholders — and calls on boards to integrate business plans, internal control and risk management systems, and remuneration policies with appropriate sustainability goals.

Engagement: The new Code recommends that listed issuers develop a dialogue with the market and with investors through specific engagement policies. It assigns a key role to the chairman, who — in agreement with the CEO — is directed to prepare a policy to manage dialogue with investors, which the board will approve and monitor.

Proportionality: The new Code tailors and graduates principles based on the size of the issuer, to promote access to equity capital markets and listing of small- and medium-size companies. Some recommendations are directed at large listed issuers (those with a market capitalisation higher than €1 billion for three consecutive years), while other recommendations apply to issuers with a concentrated ownership controlled by one or more shareholders.

Simplification: The format of the new Code has been simplified. To assist issuers in applying the Code, Q&As based on queries received from issuers will be published on a recurring basis. Continue Reading

No-Poach Prosecutions: A Growing Problem for M&A Deal Teams?

Posted in M&A and Private Equity

M&A deal teams should take note of heightened scrutiny of HR and employment practices by antitrust enforcers in the US and Europe.

By Richard Butterwick, David Little, Elizabeth Prewitt, Sarah Gadd, Joshua Chalkley, Anuj Ghai, Catherine Campbell, and Peter Citron

No-poach, non-solicitation, and wage-fixing agreements — arrangements between companies seeking to agree wages, or prevent or limit the hiring of each other’s employees that are not ancillary and narrowly-tailored to a legitimate transaction such as an M&A deal or joint venture — can lead to significant fines and even criminal sanctions, as well as private damages litigation. Parental liability for European antitrust failings by a group company can arise even in the case of a minority stake, and even if the parent company had no involvement in or awareness of the wrongdoing. Continue Reading

UK Listed Companies: Key Legal Developments in 2020

Posted in Finance and Capital Markets

Latham explores the primary legal developments for issuers and their advisers in the year ahead.

By Chris Horton, James Inness, and Connor Cahalane

The regulatory regime and disclosure requirements for listed companies in the UK will continue to evolve in 2020. Issuers and their advisers should be aware of the key legal developments that will occur during this year, including FCA consultations, ESMA guidelines and reports, and measures to increase corporate transparency.

For Latham’s timeline of regulatory regime and disclosure requirements, see UK Listed Companies: Key Legal Developments in 2020. Continue Reading

US Baseball Scandal Provides Valuable Lessons on Corporate Culture

Posted in Dispute Resolution, Employment and Benefits, Finance and Capital Markets

The Commissioner held senior leadership accountable for illegal “sign-stealing”, even though the conduct generally involved players and low-level operations employees.

By Nathan H. Seltzer, David Berman, Christopher D’Agostino, and Nell Perks

On 13 January 2020, the Major League Baseball Commissioner handed down significant punishment (including fines and suspension) to the Houston Astros baseball team and its managers following an investigation into “sign-stealing” (a practice that violates the Major League Baseball Regulations) during the 2017 season and playoffs. In doing so, the Commissioner stressed the importance of culture for setting the tone and preventing misconduct within an organisation. The Commissioner’s decision is in line with the approach of a growing number of regulatory and prosecuting authorities around the world, and, although the matter involves sports, it contains lessons relevant to all institutions, companies, and corporate leaders.

For more information, see Prioritizing Corporate Culture: Lessons for Companies from the Major League Baseball Sign-Stealing Investigation.

If cricket is more your speed, lessons on prioritising culture can also be drawn from Latham’s exploration of the 2018 Australian ball-tampering scandal.

Introducing Latham’s Guide to Acquiring a US Public Company

Posted in M&A and Private Equity

Considerations for non-US acquirers looking to buy a publicly traded US-based company in a negotiated (i.e., friendly) transaction.

By Thomas W. Christopher, Bradley C. Faris, Alexander B. Johnson, Amanda P. Reeves, Les P. Carnegie, Kristin N. Murphy, and Kaitlin Verber

In 2019, the public M&A market in the US continued at a strong level. A total of 198 M&A deals with equity values over US$100 million were announced with US public company targets in 2019, worth a combined total of more than US$909.7 billion[1]. Non-US acquirers continued to represent a meaningful portion of US public company acquirers, accounting for approximately 25% of public company buyers since 2017[2].

The acquisition of a US public company by a non-US acquirer is a transformational transaction for the target and likely a significant transaction for the acquirer. There is no standard formula for such a transaction, and the legal considerations that arise require careful analysis on a case-by-case basis. Latham’s guide, Acquiring a US Public Company, summarizes such considerations for acquirers contemplating such a transaction. Continue Reading

UK Competition Appeal Tribunal Judgment: Pushing the Envelope on Abuse of Dominance

Posted in Dispute Resolution, EU and Competition

The CAT’s Royal Mail v. Ofcom judgment considers what constitutes abusive conduct, the “as-efficient competitor” test, and the use of expert economic advice.

By David Little, Gregory Bonné, Alexandra Luchian, and Nathan Wilkins

On 12 November 2019, the UK Competition Appeal Tribunal (the CAT) published its judgment rejecting Royal Mail’s appeal against a £50 million fine imposed by the UK Office of Communications (Ofcom), the UK communications and postal services regulator, for abuse of a dominant position in bulk mail delivery following a complaint from Whistl.

This post focuses on three areas of the CAT’s judgment: (1) the distinction between abusive conduct and mere preparatory acts; (2) the relevance of the “as-efficient competitor” test when assessing exclusionary conduct by dominant companies; and (3) the treatment and protection of expert economic advice. Continue Reading

English Court of Appeal Rules on Privilege and Settlement Agreements

Posted in Dispute Resolution

The Court examined “without prejudice” privilege and litigation privilege as they apply to settlement agreements and their inspection by co-defendants.

By Oliver E. Browne

In BGC Brokers LP & Ors v. Tradition UK & Ors,[i] the English Court of Appeal unanimously dismissed an appeal against an order for a settlement agreement to be disclosed in unredacted form. The Court found that neither “without prejudice” privilege nor litigation privilege applied to the settlement agreement, even though it reproduced confidential communications that would themselves fall squarely under one or both heads of privilege. The Court held that the reproduction and incorporation of confidential communications within the settlement agreement formed part of a new and distinct communication, the purpose of which was neither to negotiate a settlement agreement nor to gather evidence for the purposes of the litigation.

“Without prejudice” privilege applies to written or oral communications that are made for the purpose of a genuine attempt to settle a dispute between the parties.[ii]

Litigation privilege applies to confidential communications between a client and its solicitor, or either of them and a third party, for the dominant purpose of obtaining information or advice in connection with existing or reasonably contemplated litigation.[iii] Continue Reading

Court of Appeal: London-Seated Arbitration Cannot Circumvent Mandatory Arbitration Act Requirements

Posted in Dispute Resolution

Decision confirms parties’ statutory right to challenge awards under s.67 and s.68.

By Oliver E. Browne

The Court of Appeal has overturned a High Court decision which granted a stay of an application challenging an award pending the determination of related further arbitrations (the Second Arbitration Proceedings), pursuant to s.67 and s.68 of the Arbitration Act 1997 (the Arbitration Act).

The Court’s decision in Minister of Finance (Inc) v International Petroleum Investment Co [2019] EWCA Civ 2080 is a helpful reminder that parties agreeing to an arbitration with a London seat cannot circumvent the mandatory provisions of the Arbitration Act. Parties have a statutory right to challenge an award under s.67 for lack of substantive jurisdiction and s.68 for serious irregularity and cannot contract out of these provisions, notwithstanding any written agreement to the contrary.

The Court recognised that challenges under the mandatory provisions often “lack merit and are nothing more than an attempt by the losing party to put off the day of reckoning”. In such cases, the courts have “adequate powers to bring the challenge to a prompt end”. Indeed, the requirement of proving serious irregularity and substantial injustice is a high hurdle to overcome. Continue Reading

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