Deliveroo IPO raises questions around worker rights and dual class share structures

Summary

Several fund managers have elected not to participate in Deliveroo Holdings plc’s (Deliveroo) impending initial public offering (IPO), with concerns over the company’s treatment of workers and the dual class share structure. The roster includes Legal and General Investment Management, which is the UK’s largest fund manager with £1.3tn of assets under management.  Similarly, M&G, Aberdeen Standard Investments and Aviva Investors have told the Financial Times that they too will “shun” the listing (“Legal and General joins investors shunning Deliveroo IPO”, Financial Times, 25 March 2020).

Background

Deliveroo is a popular online food delivery company founded in London.  Customers use an app or website to order food from grocers, local restaurants or ‘ghost kitchens’ and the food is delivered by self-employed bicycle or motorcycle couriers.  Revenue is generated by charging fees to both restaurants and customers.

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J5 Countries (Including the U.S. and UK) Are Laser-Focused on FINtech Companies

By Hope Krebs, Partner, Duane Morris LLP

This week the Joint Chiefs of Global Tax Enforcement (J5) brought together investigators, cryptocurrency experts and data scientists in a coordinated push to track down individuals and organizations perpetrating tax crimes around the world.  The J5 (which is comprised of the Australian Taxation Office (ATO), the Canada Revenue Agency (CRA), the Dutch Fiscal Information and Investigation Service (FIOD), Her Majesty’s Revenue and Customs (HMRC) from the United Kingdom and the U.S. Internal Revenue Service Criminal Investigation Division (IRS-CI)) has been working together since 2018 to gather information, share intelligence and conduct coordinated operations in each country’s fight against transnational tax crime.

The annual meeting (referred to by the J5 as “The Challenge”) was focused this year on Financial Technology (FINtech) companies. In its press release issued March 25 (IR-2021-64), the IRS acknowledged that many FINtech companies have adopted compliance regulations and are partnering with governments and law enforcement in prohibiting financial crime.  However, the IRS cautioned that due to the online nature of the products, the novelty and the lack of regulation and compliance in some areas, the FINtech industry can be used by tax avoiders and money launderers to commit crimes.

This year the J5 Challenge was held virtually and split into multiple phases. In the first phase of the Challenge, legal experts from the five countries discussed the fiscal, compliance and criminal options that each country had regarding FINtech companies. During the second phase, the five countries developed a list of specific companies where leads suggested criminal behavior.  By the conclusion of the Challenge, the IRS press release stated that each country identified specific companies that will be a part of their investigations.

The IRS press release also touted two successes this month resulting from J5 collaboration – the early-March indictments of the CEO and an associate of Sky Global on charges that they participated in a criminal enterprise that facilitated the transnational importation and distribution of narcotics through the sale and service of encrypted communications devices, followed by the ten-count indictment earlier this week charging Jason Peltz with securities fraud, money laundering, tax evasion and a variety of other offenses.

This appears to be just the beginning of the J5’s coordinated efforts to clamp down on the use of the FINTech  industry by those seeking to evade taxes and committing financial crimes. For more on the J5, visit the IRS website.

Tenth Circuit Holds There is No Limitations Period for FCC Debt Collections

In a decision issued this week, the Tenth Circuit held that when the FCC acts to collect debts to the United States, rather than impose a fine or punishment, its actions are governed by the Debt Collection Improvements Act (DCIA), 31 U.S.C. §§ 3711-17, which means there is no limitations period.  Blanca Tel. Co. v. FCC, Nos. 20-9510 and 20-9524 (10th Cir Mar. 15, 2021).

The Universal Service Fund (USF) provides subsidies to telephone companies to promote universal availability of telephone service.  The FCC administers and enforces the rules governing the distribution of USF support to carriers.  During the relevant period (2005-2010) the FCC’s rules required incumbent local exchange carriers (incumbent LECs) to use accounting that allocated costs between regulated and unregulated activities, because those carriers could not receive USF support for unregulated activities or for service outside their designated “study area.”  Cellular service is an unregulated service for USF purposes (except for “basic” cellular service).  Blanca Telephone Co. was an incumbent LEC but did not separate its costs for regulated and unregulated service (such as cellular service), which resulted in Blanca receiving more than $6 million in USF support for non-basic cellular service and service outside its study area.

The FCC sought to recover that money in 2016 and eventually issued an order requiring repayment.  Blanca challenged the order, arguing the FCC was time-barred under either 47 U.S.C. § 503(b)(6) (one-year limitations period) or 28 U.S.C. § 2462 (five years). The FCC, however, said it acted under the DCIA, which expressly provides there is no limitations period.  31 U.S.C. §§ 3716(e)(1).  In deciding which statute applied, the first key issue was whether the FCC was imposing a penalty (and thus governed by one of the statutes Blanca cited) or engaged in debt collection.  The court held that even though Blanca violated a public law and the public was being protected by the FCC’s actions, including by deterrence of others, the action was best treated as debt collection because the FCC’s core purpose was to recover its overpayment of USF support to Blanca. The second key issue was whether the collection was of funds “owed to the United States” per 31 U.S.C. § 3701(b)(1).  The court held it was, as the FCC was collecting amounts “disallowed by audits performed by the Inspector General of the agency administering the program,” as allowed by 31 U.S.C. § 3701(b)(1)(c).  The decision is notable because, although it is tied to the specific facts of the case, it allows FCC recovery for potentially very old regulatory violations if they involve a true debt to the government.

If you have any questions regarding this post or other telecommunications issues, please contact Ty Covey (jtcovey@duanemorris.com) or Brian McAleenan (bamcaleenan@duanemorris.com).

Court Declines to Apply Filed Rate Doctrine to Rates Dictated By Statute

The filed rate doctrine (also called the filed tariff doctrine) is a century-old cornerstone of regulated-industries law that, generally speaking, bars claims where the effect would be to allow a customer to receive service, or the carrier to provide service, on rates, terms, or conditions that differ from the carrier’s tariff filed with the relevant regulatory agency.  Central Office Tel., Inc. v. AT&T Corp., 524 U.S. 214, 222-23 (1998).  The rule is strict and, where it applies, unyielding.  Id.  The recent district court decision in Smith v. FirstEnergy Corp., No. 2:20-cv-03755 et al., 2021 WL 496415 (S.D. Ohio, Feb. 10, 2021), however, declined to apply the filed rate doctrine where the rates at issue were set directly by legislation.

In the summer of 2020, former Speaker of the Ohio House of Representatives Larry Householder and his political associates were indicted for an alleged $60 million-dollar federal racketing conspiracy. The criminal complaint asserted that Householder and others, in exchange for large bribes from FirstEnergy Corp., collaborated to pass House Bill 6 (HB 6), a near billion-dollar nuclear power plant bailout that would benefit FirstEnergy.  HB 6 required that a monthly surcharge be added to ratepayers’ bills (capped at 85 cents for residential customers and $2,400 for commercial customers), along with other adjustments that would increase rates.  Ratepayers sued FirstEnergy on behalf of a proposed class, asserting federal claims under RICO and other statutes and a state-law claim under the Ohio Corrupt Practices Act.  The alleged injury was having to pay costs and fees set forth in HB 6, and the plaintiffs sought both prospective relief (to stop enforcement of HB 6) and retroactive relief for charges already paid as a result of HB 6.

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UK National Security & Investment Bill

Over the past decade, the UK has seen foreign direct investment worth three-quarters of a trillion dollars. One of the key elements of the UK government’s strategy for 2021 and beyond must inevitably be to maintain and enhance the UK’s attractiveness as a place to invest and conduct business.

To read the full text of this Duane Morris Alert, please visit the firm website.

We also direct your attention to another Alert discussing the issue of foreign direct investment in Europe in a broader context influenced by the COVID-19 pandemic.

Information Technology Workers – Temporary and Permanent U.S. Immigration Options

U.S. employers seeking to bring foreign information technology (IT) talent to the United States, and IT workers seeking ways to obtain authorization to work in the United States, have several options.  Some of these are geared at college students or recent graduates seeking temporary training, and others are more suitable for degreed professionals,  with increased options for senior or well-established members of the profession.

To read the full text of this post by Duane Morris attorney Susanne Heubel, which includes an overview of the most common U.S. visa categories for the IT industry, please visit the Duane Morris Immigration Law Blog.

DOJ Drops Challenge to California Net Neutrality Law; Trade Associations’ Case Now Takes Center Stage

In a significant development for the years-long net neutrality debate, yesterday the U.S. Department of Justice dropped its suit to enjoin California’s net neutrality law (SB 822) (No. 2:18-cv-0660, E.D. Cal.).  The California law reimposes on broadband Internet Service Providers several requirements the Federal Communications Commission (FCC) rescinded in its 2018 Restoring Internet Freedom Order, 33 FCC Rcd 311.  For example, the California law prohibits blocking of lawful content, apps, and services; throttling of Internet traffic; and paid prioritization of traffic, and also contains a general prohibition on unreasonable practices.  The DOJ sued to enjoin the California statute as being conflict-preempted.  Several amici, including groups of scholars and many state Attorneys General, weighed in on both sides, and briefing on the preliminary injunction was complete.  With the new federal administration in place that may have a different view on net neutrality regulation, however, the DOJ elected to bow out of the fight.  But this is not the end.  Several telecommunications/internet trade associations have a separate pending case before the same judge, challenging the statute on preemption and Dormant Commerce Clause grounds, and are to report to the court on Feb. 16 how they wish to proceed in light of the DOJ’s action (No. 2:18-cv-02864, E.D. Cal.).  That case remains especially important as a bellwether, because at least some other states have looked to the California statute as a template for net-neutrality laws.

The other major pending case on a state net neutrality law is in Vermont district court, where major trade associations have challenged a Vermont law and executive order that tie eligibility for state contracts to meeting specified net neutrality requirements (No. 18-00167, D. Vt.).  This type of law, tying net neutrality to eligibility for state contracts rather than imposing duties on all internet providers, is different from California’s and represents the other major flavor of state net neutrality efforts, whether pursued by statute or executive order.  The DOJ did not join the Vermont case.  That case had been stayed pending a ruling on the preliminary injunction request in California, but now should go forward.  The first order of business presumably will be to complete briefing on and decide the State’s pending motion to dismiss for lack of standing, which alleges the plaintiffs have suffered no injury from the state requirements.

FCC Emphasizes Limits On Local Fees For Small-Cell Facilities

Wireless telecom providers have been deploying new small-cell technology and equipment for 5G service across the nation.  Deployment often requires the providers to obtain access to public rights of way to put their small-cell equipment on cities’ or municipalities’ utility poles (or use underground ducts or conduit).  Cities and municipalities, of course, seek compensation for allowing this access to public equipment and rights-of-way.  The FCC addressed this compensation issue in 2018, setting safe-harbor caps on local fees but allowing higher charges if they meet certain requirements.  Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 33 FCC Rcd 9088 (2018).  The Ninth Circuit upheld that decision in relevant part.  City of Portland v. FCC, 969 F.3d 1020 (9th Cir. 2020).

Clark County, Nevada (home of Las Vegas) adopted an ordinance with annual fees well above the FCC’s safe harbors.  The ordinance required holder of a Master Use License Fee to pay 5% of gross revenues each calendar quarter, plus a Wireless Site License Fee of $700 to $3,960/year/facility (with annual increases of 2%), plus an Annual Inspection Fee of $500 per Small Wireless Facility in county rights-of-way.  Verizon challenged that ordinance at the FCC as being preempted by 47 U.S.C. 253(d) because it effectively prohibited Verzon from providing service.  The FCC, through its Wireless Telecommunications Bureau, recently dismissed Verizon’s complaint without prejudice in light of Clark County having adopted a new ordinance.  Petition for Declaratory Ruling That Clark County, Nevada Ordinance No. 4659 is Unlawful Under Section 253 of the Communications Act as Interpreted by the Federal Communications Commission and is Preempted, WT Docket No. 19-230, DA 21-59 (rel. Jan. 14, 2021).   In doing so, however, the FCC emphasized three key aspects of its rules that certainly will bear on any pending or future disputes between wireless providers and other municipalities that seek to impose fees above the FCC’s safe harbors.  These points appear directed at preventing other state or local authorities from making some of the same arguments Clark County was making.

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