Early Liquidity Rights Create Management Misalignment

Posted in M&A and Private Equity

By Thomas Tharakan

The average PE hold period is getting longer. According to data provider Preqin, PE firms held on to European assets for an average of 5.65 years in 2017, up from 4.41 years in 2007. Extended hold periods have been driven by a number of factors, including the raising of longer-term PE funds by some of the larger general partners and the increase in direct investment by limited partners with long-term investment horizons (such as pension or sovereign wealth funds). As hold periods increase, some management teams have begun to ask PE firms for the right to exit their investment before the PE fund exits. In our view, this could mark the beginning of a trend, and one which should be monitored closely as early liquidity rights can create misalignment between sponsors and executives.

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In the past, portfolio company executives very occasionally requested “put” options to sell shares in exceptional circumstances (for example death or permanent disability) and early liquidity rights have been a feature of infrastructure fund deals for a while. However, the concept of early liquidity has expanded into PE deals over the past 12 months as executives look to avoid being locked in for long periods with PE sponsors. We are increasingly seeing examples of early liquidity rights being asked for by management teams and, in a number of cases, conceded to by PE sponsors.

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High Court Decision in Norske Skog: Puh! (Norwegian for Phew!)

Posted in Dispute Resolution, Finance and Capital Markets

Ruling confirms majority noteholder should not be disenfranchised from voting

By Simon J. Baskerville, Sophie J. Lamb QC, Bradley J. Weyland, and Eleanor M. Scogings

The English High Court held that it had jurisdiction in a cross-border dispute involving the Norske Skog group (Norske Skog), and confirmed that a majority noteholder did not “control” the debtor companies and was therefore not excluded from being part of the “instructing group”. The case also confirms the ability of the English courts to rule in relation to issues of both New York law and English law. These rulings reassured observers active in European leveraged finance transactions, who have long believed that courts should interpret and approach this suite of contracts in exactly this way.

Case Background

In 2015, Norske Skog, a large Norwegian group of manufacturing companies engaged in the paper industry, issued senior secured notes (the Notes) pursuant to a New York law governed indenture. As is typical with leveraged finance structures, the company also entered into an intercreditor agreement (ICA) governed by English law. The ICA allows the flexibility for multiple secured creditor classes under various instruments to benefit from the security. Further, the ICA governs the relative priority of such creditors and other liabilities, as well as the ability to instruct the security agent in case of a default scenario. Continue Reading

FCA Statement on Cryptocurrency Derivatives

Posted in Finance and Capital Markets

FCA warns providers of cryptocurrency derivatives of their regulatory obligations.

By Andrew Moyle, Stuart Davis and Charlotte Collins

The UK Financial Conduct Authority (FCA) has issued a statement reminding businesses offering cryptocurrency derivatives of the requirement to be authorised.

The FCA explains that, although cryptocurrencies are not themselves regulated in the UK, derivatives that reference cryptocurrencies (such as cryptocurrency futures, cryptocurrency contracts for differences, and cryptocurrency options) are capable of being financial instruments under the Markets in Financial Instruments Directive II (MiFID II) and therefore within scope of regulation. The FCA clarifies that it does not consider cryptocurrencies to be currencies or commodities under MiFID II. Continue Reading

English High Court Applies New “Range of Factors” Test to Defence of Illegality

Posted in Commercial, Dispute Resolution

New “range of factors” test suggests broad use in future civil matters and fairer, more nuanced outcomes.

By Daniel Smith and Alanna Andrew

The High Court has applied the new fact-sensitive “range of factors” test in Harb v Aziz[i] to determine whether a defendant to a civil claim can rely on the claimant’s wrongdoing to defeat the claim. The Supreme Court adopted this new “range of factors” test in the 2016 case of Patel v Mirza[ii], which replaced the “reliance test” identified in Tinsley v Milligan (widely criticised as being too formal). See Latham’s related blog, UK Supreme Court Adopts New “Range of Factors” Approach to Defence of Illegality.

The principles of the illegality defence are that a person should not be able to benefit from their own wrongdoing, and the court should not enforce claims that harm the integrity of the legal system. The defence is potentially far reaching, particularly under the new “range of factors” test, and so its recent application will be of interest to many litigants — especially if there is evidence of a claimant’s wrongdoing. Continue Reading

First Use of ESMA Temporary Product Intervention Measures

Posted in EU and Competition, Finance and Capital Markets

ESMA to introduce measures to restrict the provision of CFDs, and prohibit the provision of binary options, to retail investors in the EU.

By Nicola Higgs and Charlotte Collins

The European Securities and Markets Authority (ESMA) has announced the first use of its new product intervention powers under MiFID II. ESMA had announced before MiFID II came into force that it would introduce such measures, and had launched a brief call for evidence on its specific proposals on 18 January 2018. Despite receiving almost 18,500 responses to the proposals (many of which were presumably objections from the industry), ESMA has pressed ahead regardless, suggesting that the consultation was a mere formality.

The measures will introduce:

  • A prohibition on the marketing, distribution, or sale of binary options to retail investors in the EU
  • A restriction on the marketing, distribution, or sale of contracts for differences (CFDs) to retail investors in the EU Continue Reading

CAT Rules on Disclosure in Peugeot S.A. and others v NSK Ltd and others

Posted in EU and Competition

The CAT’s specific disclosure ruling addresses the use of licensing to support anticompetitive behaviour.

By John D. Colahan and Calum M. Warren

On 2 March 2018, the Chairman of the UK Competition Appeals Tribunal (CAT) granted an application for further specific disclosure in Peugeot S.A. and others v NSK Ltd and others. The disclosure relates to certain licensing arrangements claimed as central to the claimants’ action for damages arising out of anticompetitive practices, for which the European Commission (Commission) fined the defendants in March 2014. The ruling highlights the potential misuse of licensing arrangements to support anticompetitive behaviour, and is a timely reminder of the need for caution when dealing with counterparties in licensing arrangements.

In February 2016, the claimants — Peugeot S.A. and 18 other companies within the Peugeot Citroën group — brought an action for damages before the CAT. The claim was a so-called “follow-on” action based on a Commission decision of 14 March 2014. The defendants — competing suppliers of components to automotive original equipment manufacturers (OEMs) known as automotive bearings — were found to have coordinated pricing strategy in relation to automotive OEMs in the EEA, and received fines totalling approximately €953 million. In particular, the defendants were found to have coordinated their responses to customers’ (including the claimants’) requests for quotations (RFQ), including which undertakings would submit a quote to a given RFQ. Continue Reading

UK Government’s First FinTech Sector Strategy Launched at the International Fintech Conference

Posted in Finance and Capital Markets

The Strategy emphasises the UK government’s continued push to create a world-leading FinTech sector.

By Stuart Davis, Charlotte Collins and Sam Wong

At the second International Fintech Conference held on 22 March 2018, Philip Hammond, Chancellor of the Exchequer, announced the launch of the UK’s first Fintech Sector Strategy. The Strategy includes the following key measures:

  • A new Cryptoassets Task Force — consisting of HM Treasury, the Bank of England, and the Financial Conduct Authority (FCA) — will be set up to help the UK manage risks relating to cryptoassets and to harness potential benefits of the underlying technology.
  • “Robo-regulation” pilot schemes will be developed to assist regulated firms in complying with regulation, by creating software that would automatically ensure regulated firms follow the relevant rules. It is hoped this will help reduce compliance costs for newer and smaller firms, who are often disproportionately burdened, as well as potentially improving the accuracy of data submissions.

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Why Green Bond Issuers and Underwriters Should Not be Deterred by US Securities Law

Posted in Environment, Finance and Capital Markets

By Aaron Franklin

The United States has the deepest, most liquid capital markets in the world, attracting issuers from across the globe. To sell to US investors, these issuers must comply with US securities laws, entailing a more rigorous diligence and disclosure process. Issuers must weigh the benefits of increased demand against the additional costs, but the outcome should not depend on whether the bonds will be green or otherwise have sustainability credentials.

The US securities laws that apply to bond deals include a variety of rules on who can issue and purchase bonds, such as the registration requirements in the Securities Act of 1933, the Trust Indenture Act of 1939, and the Investment Company Act of 1940. But the real concern for bond issuers and underwriters is the threat of investors claiming securities fraud under the Securities Exchange Act of 1934, using “Rule 10b-5.” In general, a plaintiff is entitled to damages under Rule 10b-5 if a bond issuer or underwriter misrepresented or omitted a material fact in connection with the purchase or sale of the bond, with the intent to deceive or with recklessness, and the plaintiff lost money by relying on that misrepresentation or omission. This right to litigate for “material omissions” does not exist in most other jurisdictions, even where contractual fraud claims are possible. To avoid lawsuits under Rule 10b-5, issuers and underwriters (and their legal counsel) typically spend more time and effort (relative to deals not sold to US investors) investigating the affairs of the issuer and ensuring the offering disclosure is sufficiently robust.

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Swiss Regulator Publishes ICO Guidelines

Posted in Finance and Capital Markets

Swiss regulator offers assistance in navigating the regulatory framework.

By Andrew Moyle, Stuart Davis and Charlotte Collins

The Swiss Financial Market Supervisory Authority (FINMA) has published a set of guidelines, setting out how it intends to apply its financial markets legislation in the context of initial coin offerings (ICOs).

Despite the growing trend for ICOs globally, FINMA is the first national regulator to provide such helpful clarity for ICO participants, who are typically left to work out for themselves whether and how their structure fits into existing regulatory frameworks. ICOs, in which investors receive blockchain-based coins or tokens in exchange for funds, were not envisaged when many existing frameworks were developed. Further, the increasing deployment of ICOs has not given rise to ICO-specific rules and regulations in most jurisdictions, although a minority of regulators such as the Gibraltar Financial Services Commission have announced that they are creating regulatory regimes specifically targeting ICOs. Consequently, the application of current regulation and legislation to ICOs is in many cases unclear, with the legal analysis depending very much upon the way in which a particular ICO is structured. Continue Reading