Latest Legal and Regulatory news update - 24th April

Latest Legal and Regulatory news update - 24th April

In this issue:

Risk & Compliance

Commercial

Corporate

Information Law & TMT

Employment

Brexit

Coronavirus (COVID-19) toolkit

LexTalk®In-house: a Lexis®PSL community

 


 

Risk & Compliance

Coronavirus (COVID-19)

MLex: British companies will suffer huge financial losses and potential enforcement action unless whistleblowing measures are taken seriously during the COVID-19 pandemic, while the US is trying to keep its more robust whistleblower programs functional on several fronts, with an increase in reports expected. See News Analysis: UK and US companies will suffer without sufficient whistleblowing measures during COVID-19.

Law360, London: The coronavirus (COVID-19) has begun to infect the ongoing case work of UK enforcement agencies facing constraints imposed by the countrywide lockdown and social distancing measures that are hampering their ability to push forward substantive investigations already on their books. See News Analysis: COVID-19 slows pace of existing investigations.

The Organisation for Economic Co-operation’s (OECD) Working Group on Bribery has warned that the global response to the coronavirus (COVID-19) should not be undermined by bribery. According to the OECD Working Group, the global coronavirus pandemic ‘is bringing unprecedented challenges, human suffering, uncertainty and major economic disruption on a global scale, which in turn can create environments that are ripe for corruption’. See: LNB News 22/04/2020 34.

The Home Office has issued guidance for businesses on how to address and report on modern slavery risks during the coronavirus (COVID-19) pandemic. It reminds businesses that during the pandemic it is essential that they continue to identify and address the risk of modern slavery. See: LNB News 21/04/2020 30.

The NCSC has published two sets of guidance on using video conferencing services safely during the coronavirus (COVID-19) pandemic. The first set of guidance is aimed at individuals using video conferencing services. The second set of guidance is aimed at helping IT and security professionals to securely implement video conferencing services at work. See: LNB News 21/04/2020 7.

The Information Commissioner’s Office (ICO) has also published guidance regarding the use of video conferencing during the coronavirus (COVID-19) pandemic. See: LNB News 16/04/2020 58.


Risk & Compliance forecast

Our new Risk & Compliance forecast (as at 21 April 2020) is now live. This month, we report on issues including (1) data protection; (2) AML and CTF; (3) crime prevention; (4) employment; and (5) competition law compliance. You can rest assured we're tracking forthcoming regulatory changes so you can plan ahead. See: Risk & Compliance forecast as at 21 April 2020.


Anti-bribery & corruption

MLex: Goldman Sachs’ compliance procedures worked, US enforcers said in explaining a decision not to pursue the bank over alleged bribes that a London-based executive paid to help a client win work in Ghana. A new case against that executive, though, represents another example of UK authorities appearing to stand down while they let their US counterparts handle prosecutions over alleged UK misconduct. See News Analysis: In UK Goldman executive’s corruption case, US enforcers again take the wheel.

Airbus group's resolution of global bribery issues with UK, French and US authorities for €3.6bn can be seen as a good outcome for all concerned. See: LNB News 20/04/2020 21.

 

Commercial

Coronavirus (COVID-19)

Force majeure and frustration have suddenly taken centre stage for parties who are either considering their remedies under existing contracts, or deciding what protections need to be built into their future contracts. Patricia Robertson QC, Ben Lynch QC and Deborah Horowitz, barristers at Fountain Court Chambers set out the core legal principles as regards force majeure and frustration, consider their relevance in the context of coronavirus (COVID-19), and identify consequent issues for some of the major industries affected by the pandemic, including construction, trade finance, banking, airline, pharmaceuticals, energy and insurance. See News Analysis: Coronavirus (COVID-19), force majeure and frustration—Key legal principles and industry implications.

Ben Symons, barrister at The 36 Group, discusses how the coronavirus pandemic is impacting the drafting of commercial contracts for goods and services, identifies issues that need to be considered when drafting new commercial agreements for goods or services from the perspective of both customers and vendors, and suggests clauses to include in such agreements. See News Analysis: Impact of coronavirus (COVID-19) on drafting commercial agreements for goods or services.

David Stone, partner at Allen & Overy, discusses the difficulties the coronavirus (COVID-19) pandemic poses to brand owners involved in trade mark registry proceedings and trade mark litigation, what brand owners can do to mitigate the risk of future challenges to their trade marks, and the rise of counterfeiting during the pandemic. See News Analysis: Coronavirus (COVID-19)—issues for brand owners.

MEPs have recognised the impact that the coronavirus (COVID-19) outbreak is having on the media and creative sectors, with advertising revenues for the former falling as low as 80%. The potential of securing an emergency fund from the European Commission to support the sectors, including small to medium-sized enterprises (SMEs), individual creators and charities, is being sought by MEPs. See: LNB News 22/04/2020 16.

 

Corporate

Coronavirus (COVID-19)

HM Treasury has announced a new £1.25bn coronavirus package to protect firms driving innovation in the UK. It includes a £500m investment fund for high-growth companies impacted by the coronavirus pandemic, made up of funding from government and the private sector. Small-to-medium sized enterprises focusing on research and development will also benefit from £750m of grants and loans. See LNB News 20/04/2020 40.

The Department for Business, Energy & Industrial Strategy and the Financial Reporting Council (FRC) have published a Q&A document on measures to be taken in respect of company filings, annual general meetings (AGMs) and other general meetings during coronavirus pandemic. The document confirms that companies may be allowed to hold ‘closed’ meetings by telephone or other means of communication and may have the ability to override their articles of association for a short period. See LNB News 17/04/2020 18 and LNB News 15/04/2020 77.

Companies House has announced that businesses will be given additional support and flexibility to help them meet their legal responsibilities during the coronavirus (COVID-19) pandemic. The changes include pausing the strike off process to prevent companies being dissolved and treating late filing penalty appeals sympathetically. See LNB News 16/04/2020 56.

The PSL Corporate team consider the initial impact of the coronavirus pandemic on the AGM of a sample of FTSE 350 and AIM 50 companies, each of which issued an AGM notice between 27 March and 15 April 2020. See News Analysis: Coronavirus (COVID-19)—impact on the AGMs of FTSE 350 and AIM 50 companies.

The PSL Corporate team also considers how post-offer intention statements made by Motorola on its takeover of IndigoVision were impacted by the coronavirus pandemic. This News Analysis discusses the issues that parties to a public company takeover need to consider in light of coronavirus where they have provided, or are planning to provide, post-offer undertakings or statements of intention. It also looks at other market practice evolving on public company takeovers, such as arrangements for scheme meetings, reporting on current trading and asset valuations. See News Analysis: Motorola/IndigoVision takeover—statements of intention qualified by coronavirus (COVID-19) concerns.

 

Information Law & TMT

Coronavirus (COVID-19)

The worldwide shift to remote working, video calling and online shopping and banking has brought the use of technology into focus in the coronavirus crisis. While many business in the TMT sectors are surviving and even thriving, others face profound difficulties and battle for survival. In this article, leading TMT lawyers comment on the state of the market in key areas and consider what might happen next. See News Analysis: Coronavirus (COVID–19)—TMT market insight.

The NCSC has launched a number of campaigns to combat coronavirus (COVID-19) related scams. The campaigns are targeted at individuals and businesses. See: LNB News 22/04/2020 17.

The European Data Protection Board (EDPB) has adopted new guidelines on the processing of health data for research purposes and use of geolocation and other tracing tools in the context of the coronavirus (COVID-19) pandemic. See: LNB News 22/04/2020 27.

The ICO has published a series of questions for consideration by organisations using data to combat the coronavirus (COVID-19) pandemic. See: LNB News 20/04/2020 3.


Internet

As some tech companies will unfortunately be aware, dealing with cyber criminals who register domain names similar to their brands for fraudulent activities can be time consuming, costly and involve reputation crisis management. However, it is also costly and cumbersome to attempt to register every variation or misspelling of a brand as a domain name to guard against such potential criminal activities. Tech companies will therefore welcome the initiatives recently announced by Nominet (the registrar for the .uk domain) that aim to tackle the ongoing threat of cyber criminals who use public and private sector names to lure internet users to their site or to open malicious links via phishing activities. See News Analysis: New Nominet initiatives to combat use of .uk domain names for criminal activities.


Media

The worst thing that can happen to the creator of a copyright work is finding that, after having put significant effort and intellectual skill into their creation, it has been copied by someone else. Camille Arnold and Mark Kramer of Shoosmiths LLP discuss how the inclusion of a ‘mountweazel’ or copyright trap can be a simple solution to catch out copyright infringers. See News Analysis: The esquivalience of mountweazels protecting copyright.


Confidential information

When parties settle a claim they often wish to settle on confidential terms. But does this not diminish open justice? Should the courts collude in this? Zenith Logistics Services (UK) Ltd and other companies v Coury; UUU v BBB [2020] EWHC 774 (QB) addressed these questions, concluding that open justice is very important but on the particular facts of the two cases at issue, confidentiality should be permitted. In reaching this conclusion, the court considered the nature of open justice, what it requires, and pointed out how, in practice, parties to a settlement can ensure that the terms of their deal remain secret. Written by Imran Benson, barrister, at Hailsham Chambers. See News Analysis: Confidentiality of Tomlin orders and schedules (Zenith Logistics Services v Coury).

 

Employment

Coronavirus (COVID-19)

The Coronavirus (COVID-19) Job Retention Scheme (CJRS) online portal went live on 20 April 2020. On the eve of the portal going live, David Reade QC and Daniel Northall of Littleton Chambers examined the uncertainties that persist. See News Analysis: Portal’s eve.

The HMRC guidance notes for employers and employees on the CJRS have been updated for a fourth time on 17 April, and the employer’s guide was updated yet again on 20 April. A separate new guide for employers on calculating 80% of wages to claim through the CJRS is now available, as well as guidance on holiday and holiday pay, clarification regarding the requirements for agreeing furlough with employees, furloughing those on fixed-term contracts, further practical details on making claims and a ‘step-by-step’ guide for employers. See News Analysis: Coronavirus Job Retention Scheme: fourth and fifth updates to HMRC employer and employee guidance.

A Treasury Direction, setting out the legal framework for the CJRS, was made by the Chancellor of the Exchequer on 15 April 2020. David Reade QC and Daniel Northall of Littleton Chambers examine its implications. See News Analysis: The Treasury Direction: Answers or more Questions?.

The PSL Employment team provide further analysis of the third update to the HMRC guidance notes for employers and employees on the CJRS. See News Analysis: Coronavirus Job Retention Scheme: further analysis of Treasury Direction and third update to guidance.

The case of Re Carluccio’s Ltd confirms that the furlough scheme, implemented to mitigate the economic impacts of the restrictions imposed on businesses to combat the spread of the novel coronavirus (COVID-19) can be used by administrators as an alternative to redundancy provided there is a reasonable likelihood of the employees returning to work for the company or for another employer who has acquired the business following a sale by the administrators. Written by Phillip Patterson, barrister, at Hardwicke. See News Analysis: Administrators of companies can furlough employees as an alternative to redundancy (Re Carluccio’s Ltd).

The government has extended the CJRS to the end of June 2020. See: LNB News 17/04/2020 85.

 

Brexit

UK chief negotiator repeats government pledge against transition period extension

In light of the disruption and economic uncertainty caused by the coronavirus outbreak, UK government ministers and representatives have faced repeated questions in recent weeks regarding a possible change in its position against extending the transition period. On 16 April 2020, the UK government’s chief negotiator, David Frost, reiterated the government’s position, confirming that the UK will neither request nor accept an extension to the transition period beyond 31 December 2020. See: LNB News 20/04/2020 5.

 

Coronavirus (COVID-19) toolkit

Access news, practical guidance & Q&As from across practice areas in one place

A coronavirus toolkit has been launched to assist organisations with common areas of concern at this challenging time. The toolkit provides easy access to curated news, practical guidance and Q&As from a number of practice areas (subject to subscription) that relate to these key concerns, including:

  • pandemic management
  • employment issues
  • businesses in distress
  • contracts

In addition to coronavirus-specific content, the toolkit also highlights additional guidance and supporting materials of relevance to each of these areas. We will continue to develop areas of interest over time.

See: Coronavirus (COVID-19) toolkit.


 

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About the author:
Allison is a former partner of Shoosmiths, with extensive experience of legal management and practice compliance.