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The regulation is part of the EU Digital Single Market strategy to harmonise digital rights.

By Deborah J. Kirk, Elva Cullen, and Grace E. Erskine

From 12 July 2020, the EU’s Platform-to-Business Regulation 2019/1150 (P2B Regulation) promoting fairness and transparency for business users of online intermediation services applies. The P2B Regulation, which entered into force in June 2019, came about in response to complaints from SMEs regarding unfair practices and lack of transparency by online platforms, and the European Commission’s review of the same.

The decision overturns a series of cases deemed to have over-expanded a principle preventing shareholders from claiming against third parties for falls in a company’s value.

By Oliver Middleton and Thomas F. Lane

On 15 July 2020, the UK Supreme Court unanimously overturned a Court of Appeal decision that had barred a creditor of companies owned and directed by an individual from bringing tort claims against him for allegedly asset-stripping the companies in order to prevent them paying a court-ordered debt to that creditor. In Sevilleja v. Marex Financial Ltd,[1] the Supreme Court ruled that the “reflective loss” principle — restricting third parties from suing persons alleged to have harmed a company in a manner that caused “reflective loss” — should be narrowed so as only to apply to situations involving shareholders claiming for diminutions in value.

The CMA’s efforts include investigations into the package holiday and hand sanitizer industries.

By John D. Colahan and Anuj Ghai

CMA announces package holiday sector investigation

On 10 July, the CMA announced that it was investigating suspected breaches of consumer protection law in the package holiday sector. The investigation was launched on the back of work carried out by the CMA’s COVID-19 Taskforce. As noted in previous updates (see here), the Taskforce received a number of complaints about allegedly unfair practices concerning cancellations and refunds, including in relation to package holidays. The investigation specifically relates to concerns that businesses have not been respecting customers’ statutory rights to a refund for package holidays that were cancelled by either party due to lockdown restrictions. Notably, the CMA is carrying out the investigation under its consumer protection powers, rather than under competition law.

For the retail and consumer product sector, the high yield market will likely remain an attractive source of capital.  

By Roberto L. Reyes Gaskin and Laurie Tomassian

The retail and consumer products sector has been deeply impacted by the COVID-19 pandemic, both due to physical constraints on brick-and-mortar stores and supply chains, and acceleration of existing trends favoring online purchasing and e-commerce. COVID-19 has reinforced the need to adapt to  existing disruptions relating to how AI and data analytics can be deployed in the sector, advances in logistics, and the shift toward more engaged and responsible consumption.

While the long-terms effects of COVID-19 against the backdrop of an already shifting sector are still uncertain, it is clear that many retailers are under pressure: some have commenced restructuring, while others are facing a tougher liquidity environment. All retailers will likely need to further accelerate their omni-channel activity and adapt business models to new retail conditions. Economic conditions may also encourage consolidation (either in the context of restructuring or otherwise) or take-private activity. A high yield issuance may be an option to raise funds to support acquisitions, capital projects, or refinancing of indebtedness.

The more stringent reporting obligations for certain Italian listed issuers will continue until October 12, 2020.

By Antonio Coletti, Isabella Porchia, and Marta Negro

The Italian Securities Commission (CONSOB) has adopted Resolution 21434, extending for a period of three months — from July 12, 2020, to October 12, 2020 — the provisions of Resolutions 21326 and 21327 of April 9, 2020 (April Resolutions), which imposed stricter reporting obligations of relevant shareholdings in certain Italian-listed issuers that were selected taking into account their high current market value and/or spread ownership structure (see Annexes A and B to the April Resolutions).

Parties within a chain of transactions may face liability for dishonesty and assistance, even if they do not have actual knowledge of fraud.

By Stuart Alford QC and Yasmina Vaziri

The recent judgment in Bilta (UK) Limited (in liquidation) & ors v. NatWest Markets plc & Anor [2020] EWHC 546 (Ch) provides a timely illustration of how the concepts of dishonesty and assistance may apply in a chain of transactions in which not all parties have actual knowledge of the fraud. In the case, the defendant bank and its subsidiary were found to be vicariously liable for dishonest assistance to fiduciary breaches by the directors of the insolvent claimant companies, despite not having actual knowledge of the directors’ fraud. The directors were found liable on account of their participation in trades executed by two employee traders in a carbon credit based carousel fraud scheme.

The CMA continues to field COVID-19 complaints concerning refunds and previously widespread excessive prices on day-to-day products.

By John D. Colahan and Anuj Ghai

The CMA continues to respond to complaints from consumers on COVID-19-related issues. Consumers submitted more than 80,000 complaints through 28 June 2020, with the volume decreasing from 7,000 a week in May to 3,500 a week in June.

The Court of Appeal decision, which considered standard form wording and the “mandatory” nature of US sanctions laws, upholds a High Court ruling exempting a borrower’s non-payment of interest, albeit on different grounds.

By Charles Claypoole, Nell Perks, Robert Price and Thomas Lane

In the recent case of Lamesa Investments Limited v. Cynergy Bank Limited [2020] EWCA Civ 821, the Court of Appeal upheld — albeit on different grounds — a High Court decision (described here) that US secondary sanctions constituted a “mandatory provision of law”, and that the borrower’s compliance with these sanctions excused its default on payment obligations under a facility agreement.

The judgment has important implications for the competition law compliance responsibilities of company directors.

John Colahan and Peter Citron

On 3 July 2020, the High Court disqualified[1] Michael Martin from acting as a director for seven years. The court found that Mr Martin had contributed to a breach of competition law by his former company, which owned and ran an estate agency (Berryman’s) in Burnham-on-Sea. This finding was made despite the fact that Mr Martin was not concerned with day-to-day sales, had not attended any of the meetings with the other estate agents where the competition law infringement had taken place, and had taken some steps following the inspection of the company by the Competition and Markets Authority (CMA) including the obtaining of legal advice that led to compliance actions.

French Competition Authority orders Google to negotiate remuneration with press publishers and news agencies under Article 15 of the Copyright Directive (as implemented in France).

By Deborah Kirk, Elva Cullen, Rachael Astin, and Grace Erskine

Background

In April 2019 the European Parliament officially adopted Directive (EU) 2019/790 on Copyright and Related Rights in the Digital Single Market (the Copyright Directive) The directive seeks to harmonise copyright law at an EU level and introduces a package of measures relating to copyright in the digital age. The Copyright Directive also institutes a number of new exceptions to copyright infringement, allowing certain uses of copyrighted works without the permission of the copyright owner, including the exceptions for text and data mining and the exception for digital/cross-border teaching. These measures have been broadly welcomed, although some have proven more controversial. Articles 15 (the press publishers’ right) and 17 (concerning online content-sharing service providers), in particular, have been the subject of much debate.