Fund managers face these regulatory and legal risks in 2018

Raising a private equity fund in frontier markets is tough business. The sheer number of hoops and factors that a fund manager has to jump and consider, from fund formation to growing an investible pipeline, to investing, monitoring and exit – can be overwhelming, especially for first-time fund managers.

With sustained efforts from industry organisations like the Africa Venture Capital Association (AVCA) in the area of regulatory engagement, capacity building and perception management, coupled with the recent improvements in local macro-economic conditions, it is expected that the fund formation environment will ease up in the short term. However, private equity fund managers will also face new regulatory challenges and, potentially, increased litigation risks in 2018 and going forward.

Olubunmi Abayomi-Olukunle, Lead Transaction Counsel; Private Equity, Venture Capital and High Growth companies, at Lagos-based finance and investment law firm, Balogun Harold, highlights some of the legal, regulatory and deal structuring considerations that should be on the top of every private equity fund manager’s list for 2018.

 

Merger Regulation – the Rise of the Consumer

We expect to see a markedly different approach to merger regulation in Nigeria, in 2018 and going forward. The expected change in approach will be driven by the new Federal Competition and Consumer Protection Bill, (the Bill) which was recently passed by Nigeria’s Senate, with the overall objective of protecting Nigerian consumers. The Bill is Nigeria’s first, sector-wide competition law and provides criminal sanctions against persons involved in agreements with competitors that fix prices and restrict supply or allocate customers or markets.

What does this mean for private equity?

First, the scope of the Bill is wide and bears significant implications for private equity deal makers on a deal structuring level as well as from a portfolio risk perspective. For instance, the scope of the Bill covers ‘all businesses and all commercial activities within, or having effect within Nigeria’. The ordinary legal implication which this provision will have is to bring offshore acquisitions within the regulatory purview of the new Federal Competition and Consumer Protection Commission (the Commission). Accordingly, private equity dealmakers who prefer to structure investments in Nigerian companies as ‘offshore acquisitions’, may no longer be able to complete such transactions, without a layer of regulatory scrutiny from local regulators.

In relation to mergers, the Commission will now, effectively, take over the merger control functions of the Securities and Exchange Commission (SEC). As defined in the Bill, a mergeroccurs when one or more entities directly or indirectly acquire or establish indirect or direct control over the whole or part of the business of another undertaking.  In terms of process, all qualifying mergers will now have to be notified to the Commission for approval and cannot generally be implemented without the approval of the Commission. The Bill adopts a threshold mechanism to determine which mergers are subject to merger control. With the new regime, private equity fund managers will need to implement an additional layer of diligence around the merger control implications of a private equity investment in or exit from, a Nigerian company, based on the provisions of the Bill and on merger guidelines to be subsequently issued by the Commission.

Private equity fund managers will also need to pay close attention to the provisions of the Bill governing restrictive agreements, prohibition of minimum resale price maintenance, agreements containing exclusionary provisions, monopoly and price regulation. Based on a review of the Bill, it does appear that a majority of Nigerian corporates will have to adjust their operations to meet the standards set by the Bill. The management of portfolio companies and promoters of public-private partnerships, are advised to commission a full-scale review of existing business arrangements and of prospective portfolio, within the context of the provisions of the Bill to assure that portfolio company business arrangements will not be in conflict with the provisions of the Bill. It is useful to note that the Bill imposes an amount that is up to 10% of a company’s annual turnover, in a preceding business year, for offences committed by Nigerian corporates.

Employment Law – The Rise of the Employee

Employment law in Nigeria is cruising at break neck speed. There is definitely something to be said about the judicial activism that Nigeria’s employment court – the National Industrial Court (NIC) – has now become known with.  In the last 5 years, the NIC has upturned a significant portion of the corpus of traditional employment practices in Nigeria and is now installing a growing novelty of employment law standards and practices.

In doing this, the NIC has largely relied on two ground rules – The first is the position that the jurisdiction of the NIC is invoked not for the enforcement of mere contractual rights, but also for preventing labour practices regarded as unfair. The ordinarily implication of this, is that the NIC will be willing to go beyond the letters of a contract or established doctrines to reach a finding in favour of an employee, who may have been treated unfairly. The NIC also relies heavily on section 7(6) of the NIC Act 2006 and section 254C(1)(f) and (h), and (2) of the 1999 Constitution which empowers the NIC to apply international best practice in labour, and conventions, treaties, recommendations and protocols ratified by Nigeria. In practice, the international best practicerule is treated as a question of fact, for which evidence must be led. What the NIC has consistently done overtime, is to use these principles as a benchmark against which labour and industrial relations in Nigeria are measured.

To cite a few instances – Nigerian employers can no longer generally terminate an employment with immediate effect as this action will suggest wrongdoing on the part of the employee. For that reason, an employer must now justify such action or risk being saddled with more than one month’s pay in lieu of notice. (See the case of Andrew Monye v. Ecobank Nigeria Plc. The NIC is gradually moving away from the common law doctrine that employers can terminate an employment without adducing any reason, as employers are now required to give a valid reason for terminating an employment relationship.  (See the case of Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) v. Schlumberger Anadrill Nigeria Limited). Also, employers can no longer generally dictate to an employee where to invest his/her computed gratuity benefit (See the case of Aghata N. Onuorah v. Access Bank Plc).

There are a number of other noteworthy decisions – Employers can no longer compel an employee to bank with a specified bank chosen by the employer (See the case of Mr. Olabode Ogunyale & ors v. Globacom Nigeria Ltd); An employer now has an obligation to give an accurate, non-misleading work reference for its previous or existing employees ( See the case of Kelvin Nwaigwe v. Fidelity Bank Plc) and can no longer vindictively deny promotion to a deserving employee (See the case of Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor ); An employer no longer has the general right to reject an employees’ letter of resignation( See the case of Ineh Monday v. Unity Bank). The NIC has also now acknowledged and applied the concept constructive dismissal into the corpus of labour jurisprudence in Nigeria. In the case of Mr. Patrick Obiora Modilim v. United Bank for Africa Plc), the NIC, held that an attempt to have the employee resign, rather than outright firing the employee means that the employer is trying to create a constructive discharge.

What does this mean for private equity?

For private equity fund managers, the developments at the NIC is particularly significant, especially within the context of the extent to which a private equity investor and fund manager can be held liable for the liabilities or obligations of its portfolio companies. This brings to mind developments in American case of Sun Capital Partners III, L.P., et. al. v. New England Teamsters and Trucking Industry Pension Fund. In that case, the court reached the decision that two separate private equity funds managed by Sun Capital Partners (Fund III & Fund IV, collectively the Funds) were jointly and severally liable for the pension liabilities of a bankrupt portfolio company owned by the Funds. It is instructive to note that, the court held the Funds liable despite the fact that the Funds, each had an indirect ownership interest in the portfolio company that was less than the 80 percent ownership threshold for purposes of the controlled group liability rules of Title IV of the Employee Retirement Income Security Act of 1974 (ERISA).

Based on recent developments at the NIC, it doesn’t appear that traditional corporate law doctrines will afford much defence to portfolio companies or their private equity investors, where the NIC considers that an employee will be subject to some level of unfair treatment. As it is, theinternational best practices rule can be deployed with maximum effect across a number of employee-related issues.

More than previously, private equity firms, looking to doing deals in Nigeria, now have to subject employment law and workforce management issues to a higher level of diligence as part of the M&A process and also, as an ongoing compliance point for portfolio companies.

From a deal structuring standpoint, private equity fund managers must anticipate and exhaustively evaluate employer liability scenarios and build outcomes into the transaction structures to be adopted on every deal.