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Matt Green comments on fintech and financial institutions in Financial News

Posted on: September 16th, 2024 by Hugh Dineen-Lees

With Revolut looking to establish itself as the next fintech ‘superapp’, Head of Blockchain and Digital Assets, Matt Green, comments on how financial institutions must tread carefully when implementing new technologies.

Matt’s comments were published in Financial News, 10 September 2024.

“Established, traditional financial institutions have the reputation and pockets to carefully implement new fintech, and will have the necessary airbags to deal with risks.

“Fintech companies are usually at the coalface, solution-finding and locating, and then mitigating risk as best they can. Revolut would need to tread carefully to balance the weights and take the best parts of what they have.”

William Bowyer comments on Brazilian clubs signing European players in City A.M.

Posted on: September 16th, 2024 by Hugh Dineen-Lees

Will’s comments were published in City A.M., 16 September 2024, and can be found here.

“Investment in football from the Americas has grown substantially in recent years, with a move to Brazil’s top flight becoming an increasingly viable and profitable route for players.

“There is a strong argument to say that the standard of clubs (facilities, funds, squad quality and academies) in Europe is still growing and attracting the best global talent. However, as a result, European leagues are becoming increasingly saturated, with players now looking to other leagues to play their football and progress their careers.
 
“The growth of the Saudi Pro League is also hard to ignore. As noted recently by Ronald Koeman in relation to the moves of Steven Bergwijn to Al-Ittihad and Memphis Depay to Corinthians, the former effectively “closed the book” on his international career whilst the latter remains available for selection. Moving to Brazil is therefore an attractive option for players who want a move away from Europe but to keep their international aspirations alive.

“Importantly, Brazil’s Série A clubs have experienced a period of growth in revenue since 2010 which has meant that they have been able to offer higher wages than they had historically for the right players.

“Larger European clubs are also increasingly looking at Brazilian leagues for potential talent. For a young player or a player struggling to get minutes at a European club, playing in Brazil could therefore be a good opportunity to get some game time in a competitive league, with the view to hopefully returning to Europe later in their career.

“With football being the number one sport in Brazil, a move to Brazil is a chance for a player to broaden their own fan base, social media following and personal brand which could lead to brand deals and image rights related work.”

If you would like more information on how our Sports and Entertainment team help protect and innovate for top athletes, please contact a member of the team below.

Angelique Richardson interviewed by The Law Society Gazette

Posted on: September 13th, 2024 by Hugh Dineen-Lees

Associate Angelique Richardson discusses her background as a competitive swimmer and how sports have dominated her life and career, as well as highlights of her legal life, including her work on Bates & Others v Post Office Ltd.

Angelique’s interview was published in The Law Society Gazette, 13 September 2024.

Full text below:

Given my sporting background, sports law appealed. Having spent a large amount of my childhood in St. Maarten in the Caribbean, water-based sports were very much second nature. I started swimming competitively at a young age, and when I was 10 took up synchronised swimming. While at university, I ‘hung up my noseclip’ and took up finswimming. I competed at a national level, becoming British champion in the 25m bi-fins event in 2015 and setting what remains a national record in that age group. My experience as an athlete (and later as a coach) gave me a strong commitment to succeed at an elite level. 

While I graduated with a first-class degree from Northumbria University’s MLaw course, I was not initially excited by the idea of pursuing a legal career. Instead, I obtained a graduate job as a headhunter in the legal market, within litigation. This job was not for me, though I gained invaluable insight into how law firms operate and, ultimately, this piqued my interest in pursuing a career in law.

It was through this role that I met my former boss. He was looking to hire a legal assistant to help his team with a huge group action, acting for 555 claimants in the Bates & Others v Post Office Ltd case.

In 2018, I joined Freeths as a legal assistant and started my training contract. I qualified as a solicitor in the commercial dispute resolution team before being promoted to senior associate. I then moved to Lawrence Stephens in December 2023, where I work in the sports and entertainment department. This coincided with the arrival of a new director at Freeths who specialised in this area. I ended up working closely with him on a number of sports-related cases and found it the perfect route to pursue.

Ultimately, I have lived the life of an athlete. I know what pressures athletes face on a daily basis and what can happen at different points in their careers. For instance, while I might not be a boxer (unlike most of my current clients), I understand what it is like to go through training camp, the pressure of competition and navigating everything that accompanies this. As a lawyer and trusted adviser, this makes my clients more comfortable in instructing me, knowing that I understand what is on the line for them.  

Sadly, you hear all too often of athletes being taken advantage of by stakeholders. This has happened in my own sporting career and is a key driving force for me in ensuring this does not happen to my clients.

The Post Office group litigation was, naturally, a hugely noteworthy case in terms of its profile and its significance for the claimants. That case taught me a lot about strategy in litigation, which has been invaluable in my role as a sports lawyer.

I work with athletes at all levels. They range from fighters who are just turning professional (Mario Silva) and experienced, high-profile fighters (including the likes of Chris Eubank Jr, Joshua Buatsi, Lawrence Okolie, Ben Whittaker, Chev Clarke) to Olympians (including weightlifter Emily Campbell – silver medallist at Tokyo 2020 and bronze medallist at Paris 2024). Footballers include Reiss Nelson, Ivan Toney and Destiny Udogie. I am also currently leading on one of the biggest UK arbitrations in the boxing world.

On a personal level, we can all agree that sport usually takes place outside ‘normal’ working hours. With boxing, there is no off-season like there is in football. I am pretty much on standby 24/7 but my approach to practice is holistic. I am available to my clients when they need me. I also advise on strategy, brand development, reputation management and more.

I was recently appointed to the Sports Resolutions Pro Bono Service. Costs should never be a barrier to justice. I am looking forward to continuing to help athletes who need legal advice so that their rights are protected.

 

Becci Collins comments on Labour’s ‘Plan to Make Work Pay’ in People Management

Posted on: September 12th, 2024 by Hugh Dineen-Lees

Solicitor Becci Collins comments on the government’s proposed reforms surrounding ‘fire and rehire’ practices, redundancy rights and TUPE considerations, in People Management magazine.

Becci’s comments were published in People Management, 11 September 2024, and can be found here.

“The government has not implemented a complete ban on fire and rehire, as it originally pledged to do. Instead, it has made it clear that terminating employment before re-engaging an individual on different terms is the last resort. This requires an employer to ensure that it has taken all reasonable alternatives and reached an agreed outcome with affected individuals.

“A failure to comply with this requirement could provide grounds for unfair dismissal claims, which may cause reputational damage as well as adverse implications on employee relations. A further extension to a complete ban would put employers in a very uncomfortable position should the business get into financial difficulty. Instead of being able to retain its workforce on different terms, the business would be forced to consider redundancy in order to ensure its survival.

“Whilst the government has stated that it intends to strengthen TUPE protections, further detail has yet to be provided. The previous Conservative government confirmed that only employees are protected by the TUPE provision in response to case law which cast doubt on this. The current Labour government has indicated that it will take the opposite approach and extend the protection to those currently classed as workers by creating a single worker status, encompassing the current status of employee and worker.

“Extending the number of individuals protected by TUPE would increase the amount of work – and therefore time and costs – for employers, which may act as a deterrent. It may also increase the responsibilities a business assumes through the TUPE process, as any liabilities (potentially including litigation), may be transferred, although contractual indemnities could prevent this.

“The Labour government has proposed extending the requirement on when a collection consultation is required in redundancy to instances where 20 people will be impacted across the business, not just one workplace. This proposal would widen the number of individuals entitled to collective consultation.

“Further, earlier in the year, redundancy protection was expanded for those returning from maternity or adoption leave. They are to be offered suitable alternative employment ahead of other individuals at risk. However, where shared parental leave is taken, individuals are only protected for the period of their maternity or adoption leave. We may see the new government extend protections to cover this additional period of leave.

“Employers will need to ensure that their policies reflect these extended protections and be aware that failure to account for the expansion may result in a costly unfair dismissal and/or discrimination claim.”

Mohit Pasricha explores the UFC antitrust case in Law360

Posted on: September 11th, 2024 by Hugh Dineen-Lees

With the UFC receiving an unexpected setback in its $335 million settlement with former fighters, Head of Sports & Entertainment Mohit Pasricha discusses whether this case could set a bold precedent for sporting class actions. 

Mohit’s article was published in Law360, 10 September 2024, and can be found here.

By refusing to accept a $335 million settlement agreed between Ultimate Fighting Championship and a group of former fighters, the U.S. District Court for the District of Nevada has delivered an unexpected knock-down requiring all parties to get back into the legal ring early next year.

In late July, U.S. District Judge Richard Boulware rejected the settlement reached in two class actions, Le v. Zuffa LLC, and Johnson v. Zuffa[1] in a dispute over a number of UFC fighters’ ability to negotiate other promotional opportunities. The judge had stated during a previous hearing that he was seeking a “life changing” settlement for fighters who had fought through 10 years of litigation. The ruling stated that the settlement amount that had been agreed between the parties was too low and, as a result, the settlement lodged with the court was rejected.

Prior to this decision, it had been hoped that the offer by UFC’s parent company, the TKO Group, would have resolved the long-standing dispute once and for all. Instead, a trial date has been set for February 2025.[2]

This is a seminal ruling that may have huge ramifications for UFC, a global business that merged with World Wrestling Entertainment in 2023 to form the TKO Group. It also sets a bold precedent within antitrust case law that will undoubtedly affect the sporting world more widely; there is not only the prospect of new claims arising, but also the risk of the floodgates opening on a long line of established antitrust case law.

In March, UFC had agreed to the $335 million sum in response to two class actions that represented about 1,200 former UFC athletes. These fighters had principally claimed, among other matters, that their UFC contracts suppressed their chances of taking advantage of other potentially lucrative options acquired through their sporting fame.

By way of background, there are currently two separate lawsuits, one filed by fighters Cung Le and Nate Quarry in 2014 representing fighters from 2010 to 2017, and a second filed by fighters including Kajan Johnson that represents fighters from 2017 to the present.

Zuffa, the predecessor entity that owned and operated UFC, was also the defendant in five related class actions filed between December 2014 and March 2015, which were consolidated into a single action in June 2015 — Le v. Zuffa.

The lawsuits alleged Zuffa violated antitrust laws by paying UFC fighters far less than they were entitled to receive and thereby eliminating or hurting other mixed martial arts promoters. UFC fighters Le, Quarry and Jon Fitch filed their initial complaint against Zuffa in federal court in the U.S. District Court for the Northern District of California in December 2014; that was subsequently joined by fighters Brandon Vera, Luis Javier Vazquez and Kyle Kingsbury.

On June 23, 2021, Johnson and C.B. Dollaway filed another antitrust class action with similar allegations that UFC engaged in illegal anticompetitive action.

Of the proposed $335 million settlement, 90% was to have been paid to the plaintiffs represented in Le v. Zuffa. Under the proposed settlement, fighters in this case were to receive on average $200,000, with a median recovery of $73,000 and a minimum of $13,000 — with 36 class members to have been paid more than $1 million.

UFC said at the time that they had reached a joint settlement that encompassed both cases. In such circumstances, UFC would have certainly hoped and very much anticipated that this was the end of the matter; unfortunately, none of the parties expected the District of Nevada’s decision, which, as rare as it was, remained fully within judicial discretion.

Following this ruling, which refused the negotiated settlement, UFC publicly announced that it disagreed with the decision. Nonetheless, it was evident from UFC’s public statement that the parties could reach a new settlement agreement — as a result, we would fully expect UFC to engage in new settlement discussions with regard to both class actions.

Plaintiffs in both cases also stated that they too are open to reengaging with UFC over a new settlement or moving forward with the trial. Eric Cramer, an attorney for the plaintiffs, said in a statement that the fighters in the case “respect the court’s ruling” but “are keeping an open mind with respect to a potential new resolution.”

As with any matter that proceeds to trial, there is always litigation risk to be considered and a settlement for both parties would be the most favorable way to resolve the disputes in question.

There is therefore a clear desire for both parties to get back up from the proverbial canvas and continue to build upon the momentum of the settlement position that had already been reached to find a new resolution — one that should avoid the need for a further costly and lengthy trial.

Beyond the high-octane world of professional fighting in the U.S., this case is one that may have far-reaching implications for entities involved in such lawsuits across the sporting world. In addition, this case also serves as an important and emphatic reminder that, regardless of the specific case background, the filing of a settlement does not automatically mean it will be approved or accepted, and it is likely that those involved in future sporting class actions will tread with caution as a result.

Going forward, and with the alarm bells sounded by this recent ruling, it is highly likely that UFC will not want to be exposed to any future litigation risk. The likelihood, therefore, is that a new settlement will be negotiated, as both sides seem extremely keen to avoid being counted out and suffer a defeat at the mercy of a trial. On this basis, both parties are undoubtedly going to remain keen to reach acceptable settlement well in advance of any trial.

In such circumstances, and given the time pressures involved, we may very well see a settlement sum agreed in excess of $1 billion to remove any possibility of a final knockout blow ahead of the next year’s trial.

Lawrence Stephens Appointed to YBS Commercial Mortgages’ Panel of Solicitors

Posted on: September 5th, 2024 by Hugh Dineen-Lees

We are delighted to announce that Lawrence Stephens has been appointed to YBS Commercial Mortgages’ legal panel.

Gregory Palos, Head of Real Estate Finance at Lawrence Stephens, commented:

“We’re excited to be able to contribute our expertise to YBS Commercial Mortgages and its customers by providing proactive and insightful legal support.”

Ismael Garzon, Commercial Lending Completions Manager at YBS Commercial Mortgages commented:

“Adding Lawrence Stephens’ wealth of experience and proven track record to our legal panel, demonstrates our commitment to delivering a top-tier service to all our partners.”

Our Promise

Lawrence Stephens is committed to delivering excellence and fostering strong client relationships. Our inclusion in YBS’ panel reflects our dedication to these principles.

Matt Green comments on crypto exchanges and fraud in Law360

Posted on: September 4th, 2024 by Hugh Dineen-Lees

Matt Green, Director and Head of Blockchain and Digital Assets and Technology Disputes, comments on the role of crypto exchanges in tackling fraud and explains how their cooperation can assist in the recovery of stolen or hacked crypto assets, in Law360.

Matt’s comments were published in Law360, 4 September 2024, and can be found here.

Speaking with Law360, Matt explained that lawyers will often approach crypto exchanges to ensure stolen assets are frozen – however most exchanges insist on a court order before freezing the proceeds of fraud. “They often feel like they need the direction of a third party, whether it be a court order or under instructions of law enforcement: it means they do not have to act unilaterally,” he commented.

Discussing the role of crypto exchanges in such cases, Matt explained that “if a bank was holding illicit cash, you wouldn’t sue them unless there were substantive grounds to do so. You want to be chasing the money and the individuals involved. The exchanges often play a key role in helping provide disclosure, which is why they are brought into proceedings.”

Emma Cocker comments on Employment Tribunals and the Employment Bill in City A.M.

Posted on: August 29th, 2024 by Hugh Dineen-Lees

With the upcoming Employment Bill on the horizon, Senior Associate in the Employment team Emma Cocker comments on whether current Employment Tribunals will be fit for purpose, in City A.M.

Emma’s comments were published in City A.M., 28 August 2024, and can be found here.

“The government’s intention to significantly expand employment rights will have a monumental effect on employment tribunals. We already know that tribunal claims are up by around 7% compared with 2022/23 with over 650,000 open cases. Giving employees protection against unfair dismissal from day one of their employment along with the extension of time limits for bringing claims from three to six months is likely to significantly effect the Tribunal’s ability to deal with cases in a timely manner. 

“Worryingly, parties are already experiencing significant delays, with some cases taking over 18 months to reach a final hearing. Complex discrimination claims face the longest waits, with Tribunals struggling to find capacity for hearings that are often listed for a minimum of seven days.  

“The former Conservative government had consulted on the reintroduction of Tribunal fees; however these were nominal and would be unlikely to make any difference in combating delays. The current government’s main solution appears to be the digitisation of claims, but it is unclear what further improvements are proposed beyond the existing online platform for submitting claims and liaising with the Tribunal. 

“Employment Tribunals could become overwhelmed with increased claims on top of already long delays, meaning both employers and employees may face longer waits to resolve workplace disputes.”

If you would like any advice on the upcoming Employment Bill or Employment Tribunals, please contact a member of our employment team.

Matt Green explores the tracing and recovery of stolen cryptoassets in FTAdviser

Posted on: August 28th, 2024 by Hugh Dineen-Lees

Matt Green explores the tracing and recovery of stolen cryptoassets in FTAdviser

Director and Head of Blockchain and Digital Assets and Technology Disputes, Matt Green, explores the challenges of tracing stolen crypto and discusses how the recovery of digital assets is a real, established and carefully considered process.

Matt’s article was published in FTAdviser, 27 August 2024, and can be found here.

Recently, an American law firm asked for strategic advice on a multi-million-dollar crypto recovery case. Their plan was to use securities laws which required the scammers’ genuine identities from the outset. The list of defendants was endless- bogus usernames, individuals across the globe using VPNs, spurious connections based on social media. It was clear- not everyone is familiar with the alternative method- follow the money and the ghosts materialise.

According to the Chainalyasis 2024 Crypto Crime Report[1], revenue from different species of crime, including romance/ pig-butchering scams jumped from $5.9billion 2022 to $6.5billion in 2023. Similarly, Immunefi’s Crypto Losses in Q2 2024 report[2] details a 112% rise in hacks and scams compared with the previous year. Although crypto-assets are at play in these cases, to quote Aidan Larkin of Asset Reality, Ari Redbord of TRM Labs, and Nick Furneaux of both, “there is no such thing as crypto crime”. Instead, if we treat it like any other crime, we remove the inertia, and can start the recovery process.

For many, the hope of recovery dies on the pretence the assets disappear into the ether, bad actors are sophisticated masked hackers in faraway lands, that processes for recovery lack maturity or that authorities have no appetite. In the clearest terms, recovery of crypto-assets, or their equivalent monetary (fiat) value is a very real, established and carefully considered process.

However, often with crypto-assets, hackers and fraudsters operate in increasingly sophisticated ways.

Examples Of Hacks And Scams

In 2019, a Canadian hospital was hit with a ransomware attack demanding $1,200,000 to recover the data- computer screens read: “No free decryption software is available on the web… You have to make the payment in Bitcoins”. Here, my task was to help trace the Bitcoin paid using blockchain analytics tools and prepare novel Court procedures to freeze funds. This now seminal case AA v Persons Unknown, set the precedent that “a crypto asset such as Bitcoin is property” – the genesis of all crypto-asset recovery cases.

Over the past few years, I have acted on matters involving a North-Korean sponsored $100million hack at a major crypto exchange, scams in which the perpetrators utilise dating apps  (which includes blackmail after sending explicit photos), as well as fake investment platforms promoted via forums like Reddit which promise lucrative returns, falling apart when the return of capital and profits are refused until further withholding taxes (not a real thing here) are paid, usually via bank transfer. A contact of mine once met with Disney executives to pitch a Web3 gaming product, only to immediately receive a convincing phishing email offering a contract, and which led to the complete drain of his crypto-wallet. Another attended a gaming event showcasing facial-recognition technology, which was later exploited to side-line iPhone biometrics safeguards leading to loss of significant crypto-assets. 

Most heartbreakingly, my client lost her husband following a heart attack and was manipulated by an individual in a Facebook group called “I Miss My Husband” into transferring over £500,000 worth of Tether (a stable coin designed to hold value to the US dollar) to a fraudster. Funds were traced to individuals in South East Asia, with certain physical addresses including a human organ harvesting facility in Myanmar, which resulted recovery of funds. This is not merely naivety – rather, these are highly sophisticated scams that prey on emotions, utilise data that is designed to instil trust, or by virtue of a small mistake, like phishing.

All too often, it seems there is no recourse for victims. However, it is not only possible but in fact a real and effective process.

Tracing Shadows

The first step is to instruct investigators who utilise blockchain analytics software to trace the funds. Where a victim has paid a threat actor (the thief/ scammer) in cryptocurrency, there will be an immutable public record of the transaction including the blockchain address receiving the funds, and a transaction identifier. Some might point to issues in tracing, like mixing services which seek to obfuscate the movement of funds. The trend leans to shutting these down these facilities- consider the now sanctioned Tornado Cash. Also mixing software can largely be undone by unmixing software, subject to the obfuscation processes and technology available. However, in any event, it must be remembered that the focus here is not on the who, but on the assets themselves, their movement and their whereabouts.

Like those examples given above, organised criminal gangs (OCGs) use crypto-assets to extract funds from victims, then convert into fiat money as part of the laundering process. They utilise cryptocurrency exchanges, which convert those gains into local currencies, at the demand of their money mule customers. Investigators can see that the funds moved from the threat actor’s address to several other addresses and landed at an exchange. The exchange is then put on notice that it has the proceeds of crime, and requests are made about its customers’ identities, usually provided subject to a Court Order.

Helpful Ghosts

Importantly, substantive claims and injunctive relief (orders to freeze assets) can be obtained against a hypothetical category called Persons Unknown (PU). In doing so, we can use ghosts to our advantage. In this instance, there are usually two: PU who committed the act, being the threat actor (D1) and PU who received the proceeds of the misappropriated funds, being the customer of the exchange (D2). D2 is the target and exchanges can provide identifying data taken during the onboarding processes (anti-money laundering and counterterrorism financing checks) including passport information and email addresses. Even questionable information (I have seen 123[expletive]@protonmail.com), is useful. Vitally, this identifying data allows D2 to be served with the claim and kick starts the formal process.  

Role Of Crypto Exchanges

Despite mixed reputations, crypto-exchanges are often open to helping victims of fraud, namely because it builds sector confidence, improves their reputation and avoids time-consuming and costly legal proceedings. However, there are instances where exchanges are registered offshore, claim to be decentralised, or simply fail to reply to requests. Debate reigns on whether crypto exchanges owe a duty to consumers where they are on notice of fraud and allow a withdrawal, and a formal duty may mitigate risks in the future and compel exchanges to act. In any event, market pressures ensure customers, including OCGs, are attracted to the reliability, ease and stability of trusted exchanges.

Service and Recovery

Once the individual has been identified, they then must be served with legal documents and victims can rely on the crypto-exchange’s disclosure: email and physical addresses. However, in certain instances exchanges fail to onboard customers properly and no data is available. Here, parties can still be served documents via non-fungible tokens (NFTs), a process ratified by the Courts utilising blockchain technology. In addition, information gathered via intelligence agencies, as well as published data on the dark web following a hack, or proprietary software to identify individuals, can assist, starting with very few breadcrumbs. Investigators are also able to review open-source intelligence, social media sites, those behind websites, and gather clues via geolocation of account access.

In most cases, D1 and D2 do not respond, given bad actors’ resistance to open Court procedures. This usually results in an on-paper win for victims.  

Next is getting the funds back. In the instance there are funds at the exchange, Court sanctioned processes allow for the repatriation of those funds, whether in crypto or fiat currency. In the event exact funds are not in the account, victims are often entitled to compensation on a restitutionary basis. There is usually a clear link between D1 and D2, so any funds associated with either are fair play. Intelligence plays a key role in identifying potential assets- firms like GreyList utilise big data to determine whether email addresses are registered at banks or exchanges, so more funds can be located.

Centralised Token Issuers

Importantly, in instances where there is a centralised token issuer (Tether, for example), there are alternative processes. If the funds have not reached a crypto-exchange and are instead sitting in a private address, blacklisting the address with a token issuer’s assistance can freeze assets by preventing withdrawals.

For example, in November last year US authorities worked with Tether and exchange OKX resulting in a freeze of $225m, with assets linked to a human trafficking syndicate in South East Asia. Further, Grant Thornton’s Independent Audit Report[3] of Circle Internet Financial, Inc., the issuer of USD Coin (another stable coin) notes the “ability to blacklist addresses”, stopping private wallets from transacting altogether.

These processes are available via civil routes too, usually with help from law enforcement. Through these methods, including a token burn and remint, victims can be made whole again.

Moving Forward

Quiet stoicism keeps the industry at a plateau and all instances of fraud should be reported to law enforcement. Of course, more should be done to discourage bad actors and prevent frauds altogether, but by sharing stories we can educate other potential victims and break the fraud cycle. The Law Commission has also recommended that the direction of travel should be driven by case law, so the more trodden the path, the more precedents set for recovering crypto-assets.

While the recovery of crypto-assets can often feel like chasing ghosts, in many instances those ghosts are incredibly helpful – casting a wide net to allow exchanges and token issuers to be the force for good in helping recoveries.

Matt Green comments on AI and crypto assets in eprivateclient

Posted on: August 27th, 2024 by Hugh Dineen-Lees

Director and Head of Blockchain and Digital Assets and Technology Disputes, Matt Green, comments on the role of artificial intelligence and machine learning in securely managing and trading digital assets and cryptocurrency.

Matt’s comments were published in eprivateclient, 23 August 2024, and can be found here.

“AI must be used carefully if algorithms are used to execute trades without a human safety net. For instance, blockchain transactions are typically irreversible so individuals should not simply let AI run algorithmic trading without occasional guidance and review.

“The aim here is efficiency and the removal of unnecessary obstacles. The marriage of blockchain and AI can be the perfect partnership; AI can near auto decision make and blockchain technology allows for transactions to be made immutably at high speeds and in huge volume. The results can be mass trading without grey matter slowing down the process.

“Machine learning is helpful to transacting securely and can auto-prompt irregular withdrawals or movements of assets which may relate to fraud. By relying on open source data and marking illicit cryptographic addresses, machine learning can actively understand and adapt where required to mitigate risks and criminality.”

Regulatory update on the use of non-disclosure agreements

Posted on: August 23rd, 2024 by Hugh Dineen-Lees

On 6 August 2024, the Solicitors Regulation Authority (SRA) updated its warning notice to solicitors on the use of non-disclosure agreements (NDAs).  In essence, an NDA is any agreement/contract or clause within a wider agreement/contract under which is it agreed that certain information will be kept confidential between the parties.

In the employment law context, NDAs are typically found in settlement agreements. These are used by employers to settle employment tribunal claims, either after proceedings have been initiated, or as a way of securing the employee’s agreement not to bring claims in the future.

The SRA first published the warning notice in March 2018, following concerns arising from the #MeToo movement that settlement agreements containing NDAs were being used to prevent the reporting of misconduct to the relevant criminal and/or regulatory authorities, in particular, sexual misconduct.

The warning notice was revised in November 2020 to make clear that inserting other types of clauses which discouraged the reporting of incidents could also amount to a breach of the SRA’s regulatory Principles and Code of Conduct. Now the SRA has further updated the warning notice, which although aimed at solicitors, is useful for employers to be aware of when they are thinking of offering an individual a settlement agreement containing an NDA.

In particular, employers ought to consider:

Is an NDA required? The SRA states NDAs “should not be used routinely” and ACAS guidance highlights that careful consideration should be given to the need for NDAs on a case-by-case basis. Only use NDAs when they are genuinely needed. Be especially careful in cases where the employee has raised complaints that could constitute criminal conduct, or conduct warranting regulatory investigation and/or action. Template or ‘off the shelf’  agreements are not likely to be appropriate, so take specific advice in each and every case.

Time limits: Solicitors should challenge unreasonable time limits proposed by the opponent to ensure the individual’s solicitor has sufficient time to take instructions, advise and respond. Be wary, as an employer, of setting unreasonable deadlines and always ensure the individual has enough time to take proper legal advice.

Funding: Consider whether the typical contribution of £500 plus towards the employee’s legal fees is fair and reasonable in the circumstances, particularly if the employee has raised serious allegations that could constitute criminal conduct, or conduct warranting regulatory investigation and/or action.

Please contact our specialist employment team if you need further guidance on employment tribunal claims or settlement agreements and non-disclosure agreements.

 

 

Joanne Leach comments on the ‘right to disconnect’ in City A.M.

Posted on: August 21st, 2024 by Hugh Dineen-Lees

Joanne Leach, Senior Associate in the Employment team, comments on the government’s plan to give workers the ‘right to disconnect’ outside of their work day, in City A.M.

Joanne’s comments were published in City A.M., 21 August 2024, and can be found here.

“The implementation of the “right to disconnect” will require employers to carefully weigh up the competing interests of various employees. One individual’s “right to switch off” might curtail the right of another to work flexibly. This would impact others who require flexibility.

“To manage this risk, employers should suggest practical measures such as requiring any staff working outside core office hours to delay the sending of internal emails until the next working day. This is likely to be more effective in managing any conflicts as opposed to mandating all employees to switch off when it does not suit them.

“It remains to be seen whether employers can implement such practices and benefit from the increased productivity that the policy aims to deliver without opening themselves up to the chance of claims brought by staff who feel that their right to work flexibly has been curtailed by a government order to disconnect.”

If you would like some advice on how to support your staff in relation to flexible working and wellbeing, please contact a member of our Employment team.