Understand Your Rights. Solve Your Legal Problems
Canada agreed late to sign on to a trade deal between the United States and Mexico, revamping the three-country North American Free Trade Agreement after more than a year of tortuous negotiations.
‘Words are just words’, right? Well, not for business owners and C—Level executives. Take Elon Musk, for example, whose words have buried him in an unfavourable position, and not for the first time. Most recently, Tesla’s CEO was caught under the spotlight after calling a British diver - Vern Unsworth, who had rescued a youth Thai football team earlier this year – a paedophile and child rapist (amongst other accusations which were backed up with no evidence). This resulted in Unsworth suing the tech billionaire for defamation, in hopes for compensation and an injunction against Musk for making further allegations.
From an employment law perspective, this [Elon Musk] case highlights the real dangers of a company or individuals using social media without having a structured employment policy related to social media usage in place.
As Katherine Maxwell, Partner and Head of Employment at Moore Blatch explains: “It has been reported that Elon Musk is being sued for £57,000 and I doubt whether this will cause much financial strain to either the individual or his company. But these damages are, for the company, the least of the issue. It is the time and cost surrounding any social media faux pas that can cause the most aggravation. The furore surrounding Elon Musk’s tweets only emphasise the importance of employers having a formal social media policy in place.”
It may sound like an episode of Suits, however poorly thought out tweets and announcements can have dire consequences; as previously discussed, poor PR management can cause detriment to a business, and in Musk’s case, Tesla, has and will, continue to feel the wrath. Even prior to the lawsuit being announced, Musk’s controversial tweets addressed to Unsworth had open doors to Tesla 3% fall in shares[1].
And this is not the first time. Spats with the all-important investors which keep his company alive, - by going further than simply avoiding unfavourable questions, and instead responding in an unpleasant manner by telling analysts their ‘boring, bonehead’ questions were ‘killing him’, - has caused Tesla’s stock to rise and fall.[2]
“From an employment law perspective, this [Elon Musk] case highlights the real dangers of a company or individuals using social media without having a structured employment policy related to social media usage in place”, expands Katherine.
“We are all used to the ‘all views are my own’ disclaimer. But such disclaimers cannot be relied upon if there is a possibility that the context of a tweet or other social media mention can be connected back to an employer. For senior individuals within a company who are often seen as commenting on behalf a business – whether via a personal or professional account - it should be assumed that any post could almost always be viewed as a corporate statement. The reputational damage that can result from an ill-advised tweet can be immense. At the most extreme, and as we have seen with Elon Musk, defamatory comments expose you to claims for libel.”
Avoiding these types of lawsuits is very straightforward – do not make unfounded and defamatory allegations on social media platforms.
Being an unconventional CEO has clearly allowed Musk and his company to flourish, but with Tesla’s financial stability already being questioned when segregated from aforementioned issues, we question if business owners should be liable for their words, in particular if it is outside and unrelated to their work, i.e., should Musk, as a CEO, be held liable for accusing a diver a rapist?
We have touched on this slightly before, in a different matter. A few months ago, I explored whether you can be fired for having unconventional standpoints at work. We concluded:
“…what is certain is that there is now a chance you could get fired for your strong [political] views. If you would like to keep your job, perhaps keep strong, ‘controversial’ (sexist, racist, or anything demeaning and derogatory) opinions to yourself in the workplace.”
And as Rhiannon Cambrook-Woods, Managing Director of Zest Recruitment and Consultancy and Solicitor, expands, “Tweeting is seemingly an innocent way to pass the time and keep up with your network. With 74% of people using it as their primary news source, each tweet that is posted has the potential to be seen not just within a business’s immediate network, but by hundreds, thousands or even millions of people. The need to mind one’s p’s and q’s has never been greater.”
But what about outside of the workplace? Could you be liable if you called someone a child rapist outside of work? Well, the answer depends.
“There is a fine line between appropriate and inappropriate opinions that could be damaging to your business as a multiplier. Indeed, while many business owners seek refuge in the ‘these views are my own’ disclaimer, unbeknown to most, this holds no legal sway at all”, explains Rhiannon.
Business owners should be extremely wary of what they tweet, whether recent or 10 years prior. Take note: the world is your audience.
In fact, one of the top ten legal risks[3] related to Twitter especially, but also stretches out to other forms of discourse, references defamatory law. In England, as written by the Guardian, the law of libel states that it is an offence to communicate defamatory remarks, in particular when these remarks are permanent; Twitter and other social media forums, have a form of permanence, and so one can take legal action when a defamatory statement that has breached the law of libel and exposes the individual to contempt, impacting their daily lives and possibly causing detriment to their business.
We speak to Steve Kuncewicz, an expert in social media law at BLM, who sheds more light into the matter.
“Avoiding these types of lawsuits is very straightforward – do not make unfounded and defamatory allegations on social media platforms. This is applicable to not only business owners, but also to individuals or employees, whose allegations can easily be disseminated, and the harm done to reputation inferred through any responses to them from third parties.
“When poverty campaigner Jack Monroe won a libel case against Katie Hopkins after a series of defamatory Twitter posts, not only did it have a significant impact on Hopkins’ finances, the case and Hopkins continued controversial tweeting, has since led to the loss of regular column and media appearances and ultimately her considering insolvency.”
Your employer must be able to show a potential risk to their reputation – but it doesn’t usually seem to matter that the potential threat never actually materialised
So, you can find yourself in trouble if you post menacing statements on social media, and this is more or less extended to the US. Where the 1st Amendment may protect you in some instances, especially when differentiating ‘threat’ from ‘expression’, legal action can take place if serious accusations and threats are made.
As Steve states: “Those with a large number of online followers are more open to public scrutiny on controversial posts, and the sheer extent of their following could lead to higher wards in damages as a consequence of what they say. Social media users, and especially those with engaged followings, should take caution over what is said and whether it could ultimately be attributed to their employer.”
How does this extend to the workplace? Can your employer fire you and are you liable for what you tweet? Well, yes, more so if it impacts the business’ reputation. As worksmart.org states[4]:
“Your employer must be able to show a potential risk to their reputation – but it doesn’t usually seem to matter that the potential threat never actually materialised (in other words that in reality, the posting caused no damage to the employer’s reputation). Even so, evidence that hardly anyone saw your posting can be helpful.”
The US is slightly more complicated regarding this matter, due to employment laws differing in each state; nonetheless, when your posts have a negative impact on your employer, they have a right to fire you[5].
Nevertheless, it often does not matter if you are in or out of work: “Whether comments are made in the office or outside of it is largely irrelevant; your employer is within its rights to take umbrage to potentially harmful posts if it can have a foreseeable effect upon your reputation and its response is reasonable to protect its interests”, says Steve.
With Musk being the CEO of his own company, things become a little hazy, however, no matter how far up the food chain you may be, being a risk to the company can still see you waving goodbye to your position.
As Rhiannon summarises: “Chances are if you write something unfavourable which gets you into hot water at work or online, your company will – and should - be accountable. There is continuous evidence of this in the media, with huge corporations such as Disney having to make high-profile firings due to inappropriate tweets.
Business owners should be extremely wary of what they tweet, whether recent or 10 years prior. Take note: the world is your audience.”
[1] https://www.cnbc.com/2018/07/16/british-diver-mulls-legal-action-after-elon-musk-calls-him-pedo-guy.html
[2] https://www.wired.com/story/elon-musk-tesla-model-3-earnings-call/
[3] https://www.theguardian.com/law/2012/aug/10/twitter-legal-risks
[4] https://worksmart.org.uk/work-rights/discipline-and-policies/blogging-and-work/if-i-am-sacked-blogging-or-tweeting-what-are
[5] http://home.lawsoup.org/legal-guides/laws-by-role/employee/
Funds advised by Triton ("Triton") and KKR have successfully completed the sale of Mehiläinen, a leading provider of private health care and social services in Finland, to CVC Capital Partners, acting together with a consortium of Finnish institutional investors and the Mehiläinen Management Group.
The parties have agreed not to disclose any terms of the transaction.
Triton and KKR acquired Mehiläinen in March 2010 as joint investors on a 50-50 basis. Varma and Ilmarinen, mutual pension insurance companies, have been minority shareholders since 2015 and LocalTapiola, a mutual life insurance company, since 2016. Since the acquisition, Triton and KKR have supported the continued growth of the company through investments in new products and services, which have further strengthened Mehiläinen’s position as a leading player in health and social care. In February 2015, Mehiläinen merged with Mediverkko, further strengthening the Group’s position in primary care, social care and dental care.
The Triton funds are advised by dedicated teams of professionals based in Germany, Sweden, Norway, Finland, Denmark, Italy, the United Kingdom, the United States, China, Luxembourg and Jersey.
Trinity Hunt Partners, a growth-oriented middle market private equity firm, announced its partnership with Improving, a full-service provider of technology and custom software development services, based in Dallas, Texas. Improving was co-founded in 2007 by Curtis Hite, CEO, and has since expanded via acquisitions into the Houston, Minneapolis, Calgary, Columbus, Cleveland, and College Station markets. Trinity Hunt is partnering with Hite and the company's management team, who will remain significant shareholders of Improving, to increase Improving's growth trajectory through both organic initiatives and continued strategic acquisitions.
Curtis Hite, Improving CEO
"The mutual benefits of joining forces with Trinity Hunt will allow us to accelerate our growth and advance our ambition of improving the perception of the IT professional," stated Curtis Hite. "Trinity Hunt's business philosophies and company culture align with those of Improving, and we are excited to partner with them as we enter a new phase of growth." Improving has been named to the Inc. 5000 list for 9 consecutive years and has won numerous "Best Places to Work" awards at both the national and state level within Ohio, Minneapolis and Texas.
"We are excited to partner with Curtis and the exceptional management team at Improving," said Blake Apel, Partner at Trinity Hunt. "The company's unique culture, which allows it to hire and retain top software development professionals and leaders, is a true differentiator. We plan to support the company as it grows through acquisitions to become a market leading provider of highly customized software development services across North America."
Experienced solicitors from Joelson’s Corporate and Commercial team have assisted Sunmagic Juices Limited (Sunmagic) with its acquisition of new assets from Cott Beverages Limited.
As part of a divestment agreement with the Competition and Markets Authority (CMA) following a merger between Refresco Group N.V. and Cott Corporation Inc., Cott Beverages Limited had to sell its Aseptic A-PET bottling plant so that the merger could go ahead. Aseptic bottling is a high quality and sterile process used in the production of fruit juices, smoothies and juice drinks, and vitamin waters.
Having identified an opportunity to expand its portfolio of manufacturing capabilities, Sunmagic asked Joelson to assist with the purchase, having worked with them on other acquisition projects.
Peter Felix Commercial Director of Sunmagic commented: “We worked with Joelson on the acquisition of our freshly squeezed juice business in 2016, and found they provided expert technical advice allied with sound commercial thinking. Therefore it was an obvious and easy choice to select Joelson for this transaction”.
During the transaction the Joelson Corporate and Commercial team, which included Richard, Phil Hails-Smith, Maria Michael and Jacob Flowers, coordinated the strategy for the acquisition and negotiated the core documents, liaising with both the property team (Paul Sprague, Tegan Leblon, Andrew Clissold and Michael Friend) and employment team (Jennifer Maxwell-Harris and Reema Jethwa) for input on the respective aspects of the deal.
Taconic Capital completed its joint acquisition with SC Lowy of a shipping portfolio of UTP secured and unsecured, valued[1] at circa US$160m, from Italy’s Monte dei Paschi di Siena group (“MPS”).
Acquired via special purpose vehicles managed by the two companies, the portfolio comprises bad loans made to Italian shipowners relating to dry bulk shipping, crude oil carriers and an offshore support vessel. As part of the deal, Credito di Romagna (“CdR”), a bank in which SC Lowy acquired a majority stake in early 2018, has taken on all underlying agreements and contracts relating to the portfolio.
Founded in 1472 and styled the “world’s oldest bank”, MPS is majority owned, following its July 2017 bail out, by Italy’s Ministry of Finance. Italy’s third largest insurers, Generali Group, hold a 4.3% in the bank.
Institutional investment management firm Taconic Capital was founded in New York in 1999 by two former Goldman Sachs Partners and now has over 100 employees across its offices in New York, London and Hong Kong. SC Lowy is a Hong Kong-based international banking and finance group specialised in fixed income.
The WFW Italy Maritime team advising Taconic Capital was led by Partner Furio Samela, assisted by Senior Associate Michele Autuori and Associate Emanuele Caretti.
SC Lowy were advised by BonelliErede, CdR by Studio RCC and MPS by Studio Molinari.
[1] For the avoidance of doubt, US$160m is the face value of the portfolio, not its purchase price.
Garrigues Colombia advised Financiera de Desarrollo Nacional (“FDN”) as structuring agent and Empresa Metro de Bogotá S.A. ("EMB") in the negotiation of credit agreements with multilateral organizations in order to obtain financial resources for the development of the first line of the Bogota Sustainable Subway.
Metro de Bogotá received a USD 70 million loan from the Inter-American Development Bank, a USD 70 million loan from the International Bank for Reconstruction and Development and a USD58 million loan from the European Investment Bank.
The first disbursement amount by Inter-American Development Bank and World Bank will be USD$70 million per each multilateral and USD$56 million by European Investment Bank.
The project envisions a 23.9 km of an elevated line, which will cover the areas that have the biggest demand for transport services in Bogotá city. The start-up date for the construction is estimated for 2020 and its completion date is estimated for 2024.
Aliaxis SA, a global leader in the manufacturing and distribution of advanced plastic piping systems, has agreed to acquire the remaining shareholding of Ashirvad Pipes Pvt Ltd (“Ashirvad”) from the Poddar family, the founders of the company.
As a part of the transaction, Aliaxis has acquired a 37% stake in addition to its 60% stake in Ashirvad and has agreed to acquire the remaining 3% stake from the Poddar family over a three-year period. Both parties have agreed to not disclose the financial details of the transaction.
This transaction concludes the successful JV between Aliaxis and the Poddar family, created in 2013. Aliaxis is looking forward to building on the solid foundation created by both partners and to further pursuing the growth opportunities available in the plumbing and agriculture markets in India. India is a high priority market for Aliaxis and the transaction underscores its long-term commitment to the country.
Laurent Lenoir, CEO of Aliaxis said: “We are excited about this new step we are taking in India, together with the 2,200 Ashirvad employees and our distribution partners. This acquisition marks an important milestone in the development of Aliaxis in India. We are now ideally positioned to fully support the growth of Ashirvad in the Indian market and to further expand our activities in the subcontinent, leveraging our global innovation and product expertise to the benefit of the entire construction and agriculture community.
Kerman & Co’s Private Equity team recently represented Zhejiang Silk Road Fund, a private equity fund principally sponsored and managed by Zhejiang United Investment Group, China (“ZUIG”), on its equity investment in CMR Surgical Ltd’s (“CMR Surgical”) Series B funding round.
On 4 June 2018, CMR Surgical announced that it has closed a Series B funding round raising $100 million from new investor, Zhejiang Silk Road Fund and existing investors Escala Capital Investments, LGT, Cambridge Innovation Capital and Watrium. It is thought to be Europe’s largest ever fundraising in the medical devices industry.
Headquartered in Cambridge, England, CMR Surgical is developing the next-generation robotic system ‘Versius®’, for universal minimal access (or “keyhole”) surgery. The company’s vision is to make minimal access surgery universally accessible and affordable by significantly expanding the range of procedures that can be performed robotically.
Commenting on the investment James Wang, Managing Partner of ZUIG said “We are delighted to complete this transaction with the support of Kerman & Co. We relied upon Kerman for solid and sensible advice, which contributed greatly to the overall success of this investment.”
Paul Gilks, Partner at Kerman & Co, commented “We were delighted to work with the ZUIG team on this transaction. The role of the Chinese speaking members of our team was crucial in enabling us to meet the challenging timeline for completing the due diligence exercise and negotiating the legal documentation.”
The Kerman & Co team was led by Corporate Partner Paul Gilks, and comprised Joan Yu (Corporate), Peter Kohl (Corporate), Claudia Otto (Real Estate), Zane Shihab (Trademarks), Coral Yu (Corporate), John Daly (Corporate), Eugenie Freeman (Employment) and Amit Bhangham (Real Estate).
ZUIG was also advised by Fraser Brown of Cleveland Scott York in respect of patent matters.
In your opinion, how do you see the Chinese market affecting future transactions, and how does this particular transaction contribute to this movement?
We sense that there may be a perception that closing deals with Chinese investors can be difficult and can slow down the fundraising process. This was not, in fact, our experience in the ZUIG transaction where the legal due diligence process and signing of the legal agreements was completed in a matter of weeks.
The restrictions on China’s outbound investment have recently been tightened, but the regulatory approvals in this case were received within the deadline agreed by the parties. Once the investment community gets comfortable with the new Chinese regulatory approval process, we can only see Chinese investment activity in UK companies increasing.
There is clearly growing interest from Chinese strategic investors in making investments in UK technology companies. From a UK Company’s point of view the benefit of having a Chinese partner is likely to become increasingly important as a way of accessing the growing Chinese marketplace.
How do you ensure the entire team are on the same page when working on such a big transaction?
We are very fortunate to have two native Chinese speaking lawyers on the Kerman team. Their role was particularly important to ensure that no misunderstandings arose with the client while negotiating the more difficult issues. Legal due diligence covered corporate, commercial, property, employment and IP matters, with each department contributing its own section to the due diligence report. The patent issues which were particularly critical in ZUIG’s assessment of the investment opportunity were dealt with by Cleveland Scott York, who we have worked with on other assignments.
Were there any lessons learnt after everything was finalised?
We were struck by the professionalism of the ZUIG team who were prepared to work around the clock to get the deal over the line. China is 7 hours ahead, so you can easily lose a day unless you arrange conference calls and respond to emails early in the day. There was clearly some concern from the Company and other investors that the tightened Chinese regulatory approval process might delay completion. However, we believe that this did not become an issue partly because ZUIG was proactive in communicating with the regulatory authorities to smooth the approval process. In the event that ZUIG participates in future investment rounds this experience will be put to good use.
Precious metals miner Sibanye-Stillwater has entered into an agreement with Regulus Resources, and its subsidiary Aldebaran Resources, to acquire a stake in the Altar copper/gold project, in San Juan, Argentina. Peregrine owns the Altar project.
Under the terms of the agreement, Sibanye’s wholly-owned subsidiary Stillwater Canada and Aldebaran, will enter into a joint venture agreement with an opportunity to earn up to 80% interest.
Mining Weekly reported that Sibanye states that the arrangement creates a “new, well-capitalised, Argentinean-focused exploration company”.
“This transaction is consistent with our strategy of maintaining our focus and investment on our core mining operations. We believe Aldebaran possesses the vision, skills and experience to unlock the considerable upside potential of the Altar project, in which we will continue to hold a meaningful interest,” commented Sibanye CEO Neal Froneman.
Please tell me about your involvement in the deal?
I was involved as the local lawyer of Regulus Resources Inc in Argentina. Our work basically consists in advising our client on the implementation of the Joint Venture from an Argentinean law perspective and performing a due diligence on Minera Peregrine S.A. (Sibanye/Stilwater`s Argentinean Subsidiary) and its mining titles in the Altar Project.
Being the mining rights the main assets of Minera Peregrine S.A., the most important aspect of our due diligence was focus on reviewing them to determine its good standing, whether there were encumbrances, private royalties, landowners claims/agreements, overlapping with third parties, agreements with San Juan Province, third parties claims, and the extend of the permits related to exploration activities like the scope of the environmental impact assessments approved, water rights, right of way to access to the project etc.
Why is this a good deal for all involved?
This is a good deal for all involved since with Aldebaran Resources - the operator of the mining projects -, the parties will benefit with all Regulus Resources’ successful past experience and technical knowledge. This will allow to further develop the Altar Project and hopefully carry it out to the exploitation stage. On the other hand, both parties will have interest not only in the Altar project in San Juan Province but also in others exploration projects like “Rio Grande” and “Aguas Calientes” located in Salta and Jujuy Province respectively, which also have the potential to add value to the new company.
What challenges arose? How did you navigate them?
The main challenge was to have the due diligence finished on time. Our client wanted to have a preliminary opinion on the main contingencies and on the good standing of the mining rights in few days, in order to decide whether to enter or not in formal negotiations. To accomplish this, I personally travelled to Mendoza Province where Sibanye-Stilwater’s subsidiary is registered to review the documents at their office and interview the local lawyers and officers. Then I went to San Juan Province and review in situ, most of the documents and files related to the mining rights and permits. Eventually we were able to give this preliminary opinion on time.
