GT London Law Blog

GT London Law Blog

Legal Advisers for a Changing World

Brexit: Implications for the Gaming Industry

Posted in Brexit, Gaming, M&A

This note addresses the impact of Brexit on the gaming industry. It is one of a series of GTM Alerts designed to assist businesses in identifying the legal issues to consider and address in response to the UK’s referendum vote of 23 June 2016 to withdraw from the European Union. In particular, it considers the impact that Brexit might have on gaming companies located in the UK and Gibraltar. Gibraltar is a self-governing British overseas territory which joined the EU in 1973 at the same time as the UK as part of the UK rather than as a separate Member State. As a result, if the UK leaves the EU, then so too must Gibraltar.

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Breach of Warranty Claims – Teoco UK Limited (Claimant) v Aircom Jersey 4 Limited and Aircom Global Operations Limited (Defendants) [2015] EWHC (Ch)

Posted in Corporate, M&A

In the recent case of Teoco UK Limited v Aircom Jersey 4 Limited and Aircom Global Operations Limited [2015] EWHC (Ch), the High Court considered the validity of breach of warranty claim notification letters.

Facts

The claimant acquired two companies and their subsidiaries from the defendants. In the sale and purchase agreement (“SPA”) the defendants gave various general warranties, tax warranties and a tax covenant which applied in certain circumstances. The SPA contained limitation of liability provisions which provided that a defendant would not be liable for any claim unless:

  • the claimant had given notice to the defendant of the claim setting out reasonable details of the claim (including the grounds on which it was based and the claimant’s good faith estimate of the amount of the claim (including the claimant’s calculation of the loss, liability or damage alleged to have been suffered or incurred));
  • the claimant had given notice as soon as reasonably practicable after it became aware that it had such a claim, and in any event on or before 31 July 2015. The claimant was also required to, as soon as reasonably practicable, give notice to a defendant containing reasonable details of any matter or thing of which the claimant Group becomes aware that indicated that the claimant had or was likely to have a claim; and
  • legal proceedings in respect of the claim had been commenced by being properly issued and validly served on the defendant within six months of the date the defendant was first notified of the claim.

In February 2015 the claimant lawyers sent a letter to the defendants to notify them of various claims being made against the target company. The letter was tentative as it referred to “tax exposures [which] may exist”, “potential…tax liabilities” and the “estimate of…possible quantum” set out in a “preliminary report prepared by PwC”. The claimant alleged that these factors indicated that certain tax liabilities may have existed, which were not disclosed to the claimant when the SPA was signed and the claimant reserved the right to make a claim. The letter did not identify the specific warranties the claimant alleged the defendants had breached.

The defendants responded stating that the letter did not contain reasonable details of the claims.            In June 2015 the claimant sent another letter which provided some further information.

In August 2015 the claimant commenced proceedings and served a claim for breach of warranties in the High Court. The defendants made an application to strike out the claim.

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The UK Votes to Leave the European Union

Posted in Antitrust Trade & Regulation, Brexit, Competition Law

The UK voted yesterday to leave the European Union. The timetable for the UK’s exit, the terms of exit, and the UK’s post-exit relationship with the European Union (EU), are still to be determined, which will take time. Until these issues are clarified, firms with a UK presence, or UK customers, will have to address the inevitable legal uncertainty regarding the legal environment in which their businesses operate. Those firms, in the meantime, should continue to monitor developments, identify those areas where their businesses are likely to be affected by new or amended legislation and regulation – and, importantly, those areas that are unlikely to be affected – and determine how to mitigate risks in affected areas.

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STOP PRESS: E-commerce in Europe – significant regulatory changes proposed – impact on companies conducting online business in the EU

Posted in Intellectual Property & Technology, Regulatory

The European Commission (“Commission”) has today published a significant package of measures designed to eliminate barriers to cross-border e-commerce in the European Union (“EU”).  These will impact on any companies whose products or services are sold online to consumers in the EU as well as on resellers and companies providing platforms for such sales.

The package includes legislative proposals aimed at:

  • outlawing geo-blocking (i.e. blocking consumers accessing online offers available in an EU Member State that is not their home country) and other forms of discrimination on the grounds of nationality, residence or establishment within the EU;
  • increasing the transparency of prices and improving regulatory oversight for cross-border parcel delivery services; and
  • strengthening the enforcement of consumers’ rights.

While there are some notable carve-outs (e.g. for audiovisual content), the proposed ban on geo-blocking is particularly significant.  This practice has long been a thorny issue for the Commission as it tends to fragment the EU’s Single Market by preventing consumers from buying products or services in an EU Member States that is not their home country.

The geo-blocking ban is clearly a measure that would directly impact a large number of companies conducting online business in the EU.  We are, therefore, preparing a more detailed alert in relation to this topic.

In the meantime, however, please do not hesitate to contact us if you require any additional information in relation to this topic or would like to discuss these measures with us.

EU General Data Protection Regulation: What Impact for Businesses Established Outside the EU

Posted in Cybersecurity, Data Privacy

The 261-page final draft of the EU General Data Protection Regulation (GDPR), which replaces Directive 95/46/EC (Directive), was formally approved by the EU Parliament on April 14, 2016. The document is expected to be published in the Official Journal of the European Union (EU) in June, and to enter into force 20 days thereafter. The GDPR will apply, and enforcement will commence, two years from the date of entry into force, i.e., approximately in early July 2018. The repeal of the Directive will take effect as of the date when the GDPR begins to apply.

The GDPR is not just an update of a 20-year old directive that was designed at the dawn of the Internet era, and that was based on privacy principles published by the Organization for Economic Co-operation and Development (OECD) in the early 1980s. The approval of the GDPR is a significant development in the shaping of the law of privacy and data protection in the European Union as a cohesive, homogeneous whole, where one single law becomes the primary vehicle to govern the activities of very diverse countries in a particular domain.

It is time for companies that fall within the scope of the new GDPR to start preparing for the transition. This GT Alert focuses primarily on the obligations faced by companies whose principal business establishment is located outside the EU and the European Economic Area (EEA).

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Legal Update: Directors’ Duties – Eclairs Group Limited & another (Appellants) v. JKX Oil & Gas Plc (Respondent)

Posted in Corporate

In the recent case of Eclairs Group Limited & another v. JKX Oil & Gas Plc [2015] UKSC 71, the Supreme Court considered the duty of directors to exercise powers “only for the purposes for which they are conferred” (s171 of the Companies Act 2006 (CA 2006)).

Facts

Eclairs and Glengary were shareholders in JKX Oil & Gas Plc (JKX) who became involved in a dispute with JKX’s board. They opposed the board’s proposals to issue additional capital and disapply pre-emption rights, and they also sought to remove certain individuals from JKX’s board.

The directors of JKX issued disclosure notices under JKX’s articles requesting information from Eclairs, Glengary, and their controlling persons about the number of shares held in JKX, their beneficial ownership, and any agreements or arrangements between the persons interested in those shares.

Eclairs and Glengary replied to the disclosure notices. However, the board perceived those replies to be inaccurate and suspended Eclairs’ and Glengary’s right to vote at general meetings, and restricted their ability to transfer of shares under rights granted to the board in JKX’s articles for failure to properly comply with a disclosure notice.

Decision

The Supreme Court allowed the appeal of Eclairs and Glengary and restored the Order of the trial judge. It held that the relevant provision of the articles on which the directors had relied had three closely related purposes: (i) to induce a shareholder to comply with a disclosure notice; (ii) to protect the company and its shareholders against having to make decisions about their respective interests in ignorance of relevant information; and (iii) as a sanction for a failure to comply with a disclosure notice. The use of this power by JKX’s board as a mechanism ultimately to seek to influence the outcome of shareholders’ resolutions or the company’s general meetings was not part of those proper purposes.

Although at the critical board meeting the majority wanted to receive information which they had requisitioned, once they were satisfied that it had not been provided and turned to consider the issue of restriction notices, the court found that they were only interested in the effect that this would have on the outcome of the general meeting.

JKX board’s use of the power for the purpose for which it had been used offended the constitutional distinction between board and shareholder because it involved the use of the board’s power to control or influence a decision which JKX’s constitution assigned to its shareholders.

Rudolph W. Giuliani to Join Greenberg Traurig in New York

Posted in Cybersecurity, Data Privacy

Global Firm Makes Major Strategic Moves in Crisis Management, Cybersecurity, White Collar Defense and Investigations

NEW YORK (January 19, 2016) — Former New York City Mayor Rudolph W. Giuliani has announced he will join global law firm Greenberg Traurig LLP, as Global Chair of the firm’s Cybersecurity and Crisis Management Practice and Senior Advisor to firm Executive Chairman Richard A. Rosenbaum. Also joining Greenberg Traurig will be former supervisory federal prosecutor Marc L. Mukasey who will serve as Global Co-Chair of the firm’s White Collar Defense Practice. Mukasey previously served as Unit Chief and Deputy Chief Appellate Attorney for the U.S. Attorney’s Office for the Southern District of New York and was a former staff attorney at the Securities and Exchange Commission. Giuliani and Mukasey will both be joining from Bracewell & Giuliani, a Texas firm whose New York City office was established by the Mayor in 2005, and where they practiced together for more than a decade. Mukasey led the White Collar Criminal Defense and Special Investigations Practice at that firm. “I am proud to welcome Rudy Giuliani to Greenberg Traurig. While many other firms hold on to old business models or follow strategies premised on global growth for growth’s sake, for years we have focused on maintaining our uniquely empowering and collaborative, one-firm culture while delivering elite quality in our core practices along with extraordinary value not possible in traditional elite firms. This independent approach has naturally led to our practice and geographic expansion. Our strategic focus on crisis management, white collar criminal defense, cybersecurity and governmental investigations will be enhanced in a major way by bringing the Mayor to the Greenberg Traurig family. He has long been one of the most important and influential lawyers and leaders in this country, and will now be bringing to our clients his unparalleled experience in all areas of legal problem-solving and crisis management, as well as his unique geopolitical insights,” Rosenbaum said.

“The Mayor will work with our expert team of litigation, government regulatory, cybersecurity and data privacy lawyers across the country and the world, who are highly experienced in counseling clients in their most difficult situations, as well as addressing governmental investigations, private litigation and other proceedings. Greenberg Traurig will also work hand-in-hand with Giuliani Partners, global security consultants, with whom we will now enjoy a close strategic alliance. There is no firm that will offer the high level of counseling and national security expertise that this collaborative team will bring to the table, as well as the expertise in dealing with the insurance industry in the creation of specialty products to address these growing risks.” Giuliani commented on the move: “Having reached the goal we set out to achieve ten years ago in establishing a new law practice in New York, we look forward to joining a global platform that addresses the complex needs of today’s multinational clients. Greenberg Traurig has visionary leaders who clearly understand that the practice of law in today’s world is inextricably intertwined with the worldwide political, social and security issues of the moment. We will work closely together to implement and grow this vision. This comes at a time when my practice and Greenberg Traurig’s particular focus on cybersecurity and related counseling, investigations and litigation is an absolute match. Data privacy and security risks are on the top of the mind of every CEO, General Counsel and corporate board I speak with, and Greenberg Traurig is clearly positioned as a top-tier and highly sophisticated player in this space.” Giuliani became the U.S. Associate Attorney General, the third highest position in the U.S. Department of Justice, in 1981. He was appointed U.S. Attorney for the Southern District of New York in 1983. He served two consecutive terms as the 107th Mayor of the City of New York from 1994-2001, and then returned to the private sector as Chairman and CEO of Giuliani Partners. He joined Bracewell in 2005. At Greenberg Traurig, Giuliani will be an integral part of Greenberg Traurig’s Cybersecurity and Crisis Management, White Collar, Litigation, Appellate, Corporate, and Real Estate practices. “After having built a world-class criminal defense practice at his prior firm, we are pleased to welcome Marc Mukasey as Global Co-Chair of our White Collar Defense Practice, working closely with John Pappalardo, our other Global Co-Chair. This is an area where we already have a stellar team and Marc’s experience and reputation will enhance our capabilities while our global platform will meet his clients’ expanded needs,” Rosenbaum added.

Mukasey most recently was lead trial counsel for executives in the Countrywide mortgage fraud trial and a municipal bond criminal antitrust trial. He has handled high-profile criminal cases including residential mortgage-backed securities cases, the Deepwater Horizon blowout, the Major League Baseball steroid investigations, and the stock options backdating cases. He also notably obtained immunity for his client in the largest insider trading case in history. Mukasey has also successfully represented corporations and their executives in cases involving allegations of fraud, embezzlement, insider trading, FCPA issues, environmental violations, FIRREA, and tax issues.

“The Greenberg Traurig platform is the perfect next step for me and my team to be able to bring world-class representation to our clients,” Mukasey said. In December 2015, Mukasey’s position as a practice leader was recognized by The National Law Journal when they named him a White Collar Trailblazer. In 2014 and 2013, he was a Law360 MVP. He is also a nationally recognized Chambers and Partners trial lawyer.

Giuliani Partners’ Managing Director Eric Hatzimemos will also advise Greenberg Traurig Executive Chairman Rosenbaum with respect to the firm’s Strategic Security Practice. Giuliani Partners includes its subsidiary, Giuliani Security and Safety. While Hatzimemos will serve as an advisor at Greenberg Traurig, Giuliani Partners will remain an independent consulting firm that will enjoy a strategic alliance with Greenberg Traurig, assisting the firm’s clients who require investigative work, due diligence, physical and cybersecurity consulting, crisis management and geopolitical counsel, while seeking the expertise of the law firm when legal guidance is required by its client base. Greenberg Traurig, which is among the 20 largest law firms in the world by revenue and realized record revenues in 2015, opened two offices this past year, in Berlin and Tokyo. In 2012 the firm opened offices in Tel Aviv and Warsaw and in 2011 in Mexico City. The firm also experienced unprecedented growth in several key areas of practice and markets, particularly in New York City where it has seen significant expansion of its private equity and M&A practices, among others. The firm’s renowned and award-winning Latin American and Iberian Practice brings together attorneys with wide-ranging experience representing U.S. and international clients who do business in Latin America. In addition to its global office footprint, the firm has a long-standing strategic alliance with the independent law firm Studio Santa Maria in Milan and Rome as part of its commitment to meet the evolving needs of our clients.

 

About Greenberg Traurig’s Cybersecurity and Crisis Management Practice

Greenberg Traurig’s Cybersecurity and Crisis Management Practice develops strategies to address clients’ data security, privacy and information management concerns. The multi-disciplinary team is equipped to advise clients on: data breach readiness and response, including investigations; data privacy and security audits, policies and risk mitigation strategies; cross-border data privacy, including data transfer regulations and security; data privacy litigation, including TCPA claims, class actions and multi-district litigation; cybersecurity insurance; corporate board governance regarding data privacy and security; and employee data privacy.

 

About Greenberg Traurig’s White Collar Criminal Defense practice

Greenberg Traurig’s White Collar Criminal Defense practice group has wide-ranging experience protecting companies and individuals through coordinated planning and defense. Greenberg Traurig is on the forefront of client service in this area, and is one of few firms with more than 90 former federal and state prosecutors in its litigation group, and where the majority of litigation shareholders and counsel have first-chair trial experience. The team’s defense capabilities include vast experience in structuring internal investigations, developing guidelines and implementing compliance programs and addressing issues of voluntary disclosure, as well as extensive representations involving alleged securities fraud, FCPA violations, health care/pharmaceutical fraud, environmental crimes, money laundering, financial services fraud, public corruption/campaign finance, tax corruption, defense contracting, and bankruptcy fraud.

 

About Greenberg Traurig, LLP

Greenberg Traurig, LLP is an international, multi-practice law firm with approximately 1900 attorneys serving clients from 38 offices in the United States, Latin America, Europe, Asia, and the Middle East. The firm is No 1. on the 2015 Law360 Most Charitable Firms list, third largest in the U.S. on the 2015 Law360 400, Top 20 on the 2015 Am Law Global 100, and among the 2015 BTI Brand Elite. More information at: www.gtlaw.com.

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Contact: Joey Kaiser | kaiserj@gtlaw.com | 212.801.6983

Jill Perry | perryj@gtlaw.om | 212.801.9231

Changes to the EU’s REACH Regime May Increase the Administrative Burden on Prospective Registrants

Posted in Environment

On 6 January 2016, the European Commission published the Implementing Regulation 2016/9 on the joint submission of data and data-sharing (the Regulation). Concerns have been raised that the Regulation is likely to increase the administrative burden that prospective Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) regime registrants are subject to.

The Regulation is intended to improve the mechanism for sharing information and costs under the REACH regime. The Regulation will enter into force on 26 January 2016 and it has retrospective effect.

REACH requires manufacturers and importers of certain substances to register with the European Chemicals Agency before that substance is manufactured or brought into the EU above certain specified quantities. Manufacturers or importers of the same substance are required to prepare a single joint submission for registration. The Regulation clarifies what the terms “fair, transparent and non-discriminatory” mean in the context of data-sharing between joint registrants under REACH.

The Regulation gives prospective REACH registrants joining a Substance Information Exchange Forum (the mandatory group made up of manufacturers and importers of the same substance which leads to the joint submission) the right to request a breakdown of the costs associated with making the joint registration.

The retrospective effect of the Regulation means that data-sharing agreements which are entered into on or before 26 January 2016 will need to be reviewed and, if required, amended to ensure compliance with the Regulation.

The Regulation is available here.

E-update on the Small Business, Enterprise and Employment Act 2015

Posted in Corporate, Employment law

Following our e-update on 23 October 2015, relating to The Small Business, Enterprise and Employment Act 2015 (the Act), certain provisions relevant to UK companies have now come into force. The provisions include the following:

Changes to information filed at Companies House 

The Act has abolished the requirement for a director or secretary to provide their formal “consent to act.” This requirement has been replaced with an obligation on the company to make a statement of truth that the director or secretary to be appointed has consented to act in such capacity. This means that directors and secretaries will no longer have to sign a paper form or provide electronic verification of their appointment.

The Act also places an obligation on the Registrar of Companies to send a notice to newly appointed directors notifying them of their appointment. Such notice will also include information about the office and duties of a director. Any person appearing on the public register as a director will, from December 2015, be able to apply to have their name removed if they did not consent to act, shifting the burden of proof back on to the company.

Date of birth of Directors 

The Act now provides that the day (but not the month or year) of the date of birth of all company directors be omitted from the information available on the public register at Companies House. The aim is to help reduce identity theft. However, a director’s date of birth will still continue to show where the date of birth of the director was contained in a document that was registered before this provision came into force. Similarly, if a private company elects under certain provisions of the Act (due to come into force next year) to keep its register of directors at Companies House, then the date of birth of the director will be visible to the public.

Accelerated strike-off 

The Act has amended the Companies Act 2006 in order to allow a company to be struck off the register faster. The Registrar of Companies is now able to strike off a company from the Register 2 months after first notice has appeared in the Gazette, compared to 3 months previously. This reduces the overall period for a striking-off application from around six months to four months. 

Further changes under the Act are due to come into force in 2016 and we will continue to provide further updates as and when the provisions come into force. If you have any queries in relation to the changes already in force, please feel free to contact us.

For more information on key provisions of the Small Business, Enterprise and Employment Act 2015, please see the GT Alert “View from London: Major Changes Introduced to Corporate Law by the Small Business, Enterprise and Employment Act 2015,” by Adam Cain.

Major Changes Introduced to Corporate Law by the Small Business Enterprise and Employment Act 2015

Posted in Corporate, Employment law

Introduction

The Small Business, Enterprise and Employment Act 2015 (the “Act“) received Royal Assent on March 26, 2015 and marks the single biggest change to company law since the Companies Act 2006 (“CA”). It will be phased in over the course of the next 12 months. Although the Act’s title implies that it will only have an impact upon small businesses, it actually introduces significant changes which will affect all companies.

This article focuses on two key changes which took effect from May 2015 – the abolition of bearer shares and the application of the general duties of directors under the CA to shadow directors. We will provide further updates as additional parts of the Act come into force.

Abolition of bearer shares

Bearer shares are unregistered shares that are owned by whoever physically holds the share warrant. As no one is entered in the company’s register of members as the owner of such shares, they are easily transferable and held anonymously.

Holders of existing bearer shares have until 26 February 2016 to surrender them to the company in exchange for registered shares. If the bearer shares have not been surrendered or exchanged within this timeframe, they will be cancelled and the relevant monies paid into court by the company.

If a company’s articles of association contain provisions permitting the issuance of bearer shares, no amendment is required to remove such a provision but, if a company does intend to remove them to ensure consistency with the Act, they will be able to do so by passing an ordinary resolution rather than a special resolution (which would usually be required to amend articles).

Shadow directors

The second change is to widen the application of directors’ duties to shadow directors. Previously, the general statutory duties that apply to directors under the CA only had limited application to shadow directors. Shadow directors are defined in the CA as persons “in accordance with whose directions or instructions the directors of the company are accustomed to act”.

Section 170(5) of the CA has been amended to provide that the general duties of directors apply to shadow directors where and to the extent they are capable of applying and the Secretary of State has been given power to make regulations concerning the application of general duties to shadow directors.