ONTIER: Reaction to Bitcoin Developers’ Contesting Jurisdiction
Litigation law firm ONTIER LLP responds to the judgment handed down by Mrs Justice Falk today. This follows a successful application by 13 of the 16 bitcoin developer defendants to challenge the English court’s jurisdiction in legal proceedings brought by Tulip Trading Limited (TTL), a Seychelles registered company, whose primary beneficial owner is Dr Craig Wright.
Oliver Cain, Partner at ONTIER LLP comments:
“We are disappointed the English Court has granted the various Defendants’ applications and found that TTL has not established a serious issue to be tried on the merits of the claim in relation to whether or not developers owe fiduciary and tortious duties to those who have lost access to Bitcoin held on the networks which they control. However, we note that the Judge did not reject TTL’s factual case. She held that the Defendants’ evidence was “certainly not sufficiently strong to enable me to conclude that TTL’s factual case was no more than fanciful”. She criticised the amount of evidence filed in respect of the facts of the case as “an unhelpful distraction”.
We further note that the Judge found that TTL had the better of the arguments on the jurisdictional gateways and that England was the appropriate forum for the trial of the dispute. In doing so, the Judge upheld TTL’s arguments that it is resident in the jurisdiction and that its Bitcoin is also located here. The Judge also rejected the Defendants’ allegations that there had been material non-disclosure by TTL in its application for permission to serve out.
“Nonetheless, the matter does not rest here. The duties and responsibilities of developers are issues of the highest legal importance in a rapidly developing field that need to be fully aired and determined by an appellate court. As such, Dr Wright on behalf of Tulip Trading will seek leave to appeal today’s judgment.”
The defendants in this unprecedented action are the developers of BTC, BCH, BCH ABC and BSV residing in various jurisdictions across the world including: Netherlands, Switzerland, Kitts and Nevis, France, Japan, numerous different states in the USA, New Zealand and Australia.
ONTIER was originally granted permission to serve all the developers out of the jurisdiction by the Business and Property Courts of the High Court in London, following a 173 page application submission detailing the claim.
Dr Wright is the inventor of Bitcoin who set out his vision for the digital currency in his famous White Paper under the pseudonym Satoshi Nakamoto.
The litigation sought to examine, for the first time, the nature and extent of legal duties conferred upon and owed by developers resulting from the control they exercise over their respective blockchains.
As detailed in the Particulars of Claim, TTL requested that the individual developers enable TTL to regain access to and control of its Bitcoin on the grounds that they, the developers, owe Bitcoin owners both tortious and fiduciary duties under English law as a result of the high level of power and control they hold over their respective blockchains.
In February 2020, Dr Wright’s personal computer was hacked by persons unknown and encrypted private keys to two addresses, which hold substantial quantities of Bitcoin belonging to TTL, were stolen. These assets were, and continue to be, owned by TTL.
ONTIER has an established and growing practice for recovering stolen and hacked Bitcoin. Its Partners, Oliver Cain and Derek Stinson, together with Felicity Potter (Senior Associate) and Nicholas Dawson (Associate), are advising TTL and instructed John Wardell QC, Bobby Friedman and Sri Carmichael of Wilberforce Chambers as Counsel on this matter.
This litigation is the latest in a series of legal claims issued by ONTIER LLP on behalf of Dr Wright and his associated entities to uphold his right to protect not only his lawfully-held digital assets, but also his reputation as the creator of Bitcoin and his associated intellectual property.
The firm is well known for its high-profile Bitcoin related litigation and has a highly regarded dispute resolution team. Its work is almost exclusively international and multi-jurisdictional in nature, focused on complex, high value international litigation, insolvency matters and arbitration in a wide range of financial and industry sectors.
The firm acted in successful English High Court proceedings against Reliantco Investments Ltd, a digital asset and securities exchange, which blocked and seized a substantial amount from a client’s trading account. ONTIER LLP was able to recover the client’s full investment, its unrealised gains and loss of profit (that the client would have earned from intended investments had its funds not been unlawfully withheld).
ONTIER is recognised in the UK Legal 500 for commercial litigation, international arbitration and civil fraud.
The firm has offices in 18 cities in 13 countries, giving a truly international capability.
We are recognised leaders in our field. We are proud to uphold the ethical and educational standards for the PR industry as members of the CIPR and PRCA.
NFTs: Ukraine, Beeple & The Law
Whether you own or trade in them or think they’re little more than a speculative bubble, you can’t deny that NFTs – or Non-Fungible Tokens – have entered the public consciousness in recent times.
What are NFTs?
Firstly, what even are these strange digital tokens that have been causing such a wave of interest across popular culture?
Non-fungible tokens are essentially unique and irreplaceable digital tokens containing valuable information stored on a blockchain – essentially a database of transaction records – with the Ethereum blockchain being the most popular. Think of them as a digital asset that represents real-world objects like music, digital trading cards, in-game items, and videos – but the real craze has been for NFTs in the digital art format which has taken the art world by storm.
The prevalence of NFTs can perhaps be attributed to the continued endorsements of high-profile names, mainstream media coverage, and social media hype which boosts a market whose products arguably have no actual intrinsic value. However, the seismic shift this new art form is causing can be clearly seen through nearly $41 billion being spent on NFTs by the end of 2021 – making the market nearly as valuable as the global art market. One of the most well-known NFT artists is Mike “Beeple” Winkelmann, whose NFT “Everydays: the First 5000 Days” sold for an astounding $69 million at Christie’s in March 2021. According to Christie’s, the sale put “Beeple” “among the top three most valuable living artists,” behind only David Hockney and Jeff Koons.
Celebrity endorsements for NFTs and such collections as “The Bored Ape Yacht Club” has been a significant catalyst in the explosion in popularity of NFTs. “The Bored Ape Yacht Club” is one of many exclusive NFT digital art collections, with only 10,000 Bored Apes NFTs in existence. Access to an exclusive club known as “the swamp club” is also granted to each owner of one of the rare ape-themed NFTs. Owning NFTs from an exclusive collection usually grants access to prestigious real-world events or Discord group chats with the world’s elite, thus increasing their value beyond mere aesthetic appeal.
Many influential people display their allegiance to their NFT community by changing their social media profile picture to a cartoonish picture of their colourful animated ape NFT, for example. Such celebrity endorsements range from billionaire Elon Musk, Twitter co-founder and CEO Jack Dorsey, and footballer Lionel Messi to artist Damien Hurst, online personality KSI, and former One Direction singer Liam Payne, to name a few.
Companies are also jumping on the trend, with Spotify recently announcing plans to add blockchain technology and non-fungible tokens to its streaming service, a move that many are optimistic will help to boost artists’ earnings. Twitter, Facebook, Instagram, and Reddit are also some of the latest social media heavyweights to announce plans to enable the trading and displaying of NFTs on their platforms. Snoop Dogg has also emerged as a prominent player in the market, selling more than $44 million worth of NFTs over the course of five days in support of his new album, sending shockwaves across the music industry in the process. For context, the album would have needed to amass 7.3 billion streams to earn him that same amount of alleged revenue.
Concerns & The Law
NFTs have, however, prompted security concerns that need to be addressed if they are to convert the doubters. These issues include such scenarios as if the platform an NFT is built on goes out of business the NFT might not be accessible and thereby lose all value. Also worth noting is the rise in NFT fraud with one of the simplest forms of fraud coming in the form of people selling NFTs from artworks that they do not own the right to use. Litigation PR skills could be needed to convince a sometimes sceptical mainstream media that the theft of NFTs by unanimous individuals acting online is as damaging as the misappropriation of real-world assets. To ensure such online characters are held accountable for their actions there will also need to be an adaption of the law for a new third category of legal “things” to exist – a tertium quid – to sit alongside those of ‘chose in possession’ and ‘chose in action’.
The NFT market has also been unsteady in recent times with a significant slowdown in the market seen through the number of accounts buying and selling NFTs falling from 380,000 at its peak in November 2021 to 194,000 currently, along with a startling drop of 48 percent in the average selling price in the same period, according to NonFungible – the world’s largest NFT data resource. This also correlates with the cryptocurrency market which widely peaked in November 2021, such as the Ether cryptocurrency which uses the Ethereum blockchain upon which many NFTs are positioned, issuing a stark reminder of the digital assets market volatility.
The war in Ukraine has seen a significant flow of cryptocurrency and NFT donations coming into the country to help fund its war efforts against the invading Russian forces. The Ukrainian government is even releasing an NFT collection to add to this unconventional fundraising vessel, with each token carrying a piece of art representing a story from a trusted news source documenting the war. This opening of the door for media-related NFTs could mean that in the future we may well see a collection of NFTs released by broadcasters on our own shores. NFT collections of archive footage from the two World Wars and later conflicts to fundraise for Remembrance Sunday, or famous newspaper front pages from the past could be just a few of the copious digital products on the horizon. If it makes money it makes sense. Rather than just reporting on the subject from the outside looking in, the media world would be interwoven with it. You would reasonably assume that this would cause a greater sense of seriousness and urgency to develop around the reporting of the subject, particularly around allegations of fraud.
Do NFTs represent the future of the internet as it edges towards its new phase of the “Web3” and the metaverse which will transform a myriad of industries, or are they just a huge digital pyramid scheme that is yet to implode? Whatever the outcome, there is something to note from a PR standpoint and that is the power of the endorsement and hype in bolstering the emergence of NFTs and cryptocurrencies in the past couple of years.
This familiarisation and repackaging of NFTs to make them appear “cool” to own – and smart to invest in – by some of the most influential people on the planet have fanned the flames of society’s interest and allowed the NFT train to continue down its uncertain tracks.
Is this the start of a new era? We’ll have to wait and see.
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PR Gone Wrong: International Women’s Day
Of all the PR and marketing initiatives launched on International Women’s Day on Tuesday this week, one in particular stood out – for all the wrong reasons.
The London Dungeon decided to change the gender of Jack The Ripper to mark the day, unveiling a “Jack becomes Jackie” exhibit played by a female actor and questioning whether the “notorious killer [was] actually a woman”. The serial killer, who was never identified, murdered at least five women in Whitechapel in the late 1880s.
The special International Women’s Day exhibit told the story of convicted murderer Mary Pearcy, who was named as a possible Jack the Ripper suspect by author William Stewart in 1939.
In a now deleted press release, The London Dungeon said: “With men often stealing the spotlight when it comes to the ghastly and gory crimes, we wanted to give ladies their dues for International Women’s Day … Rather than the usual honouring, we’ve given the day a London Dungeon twist while telling a story that many may never have heard before.”
Not surprisingly, The London Dungeon’s actions were greeted with incredulity and outrage on Twitter.
In a strongly-worded rebuke, Refuge, the domestic violence charity, branded the initiative “a cheap marketing stunt” that “trivialises the systematic murder of women by a serial killer”.
Following the social media backlash and subsequent mainstream media interest, The London Dungeon deleted its communications on Jackie The Ripper and was forced to issue a statement apologising for any offence caused.
Controversially exploiting and sensationalising violence against women by recasting a serial killer of women as a woman in a cynical and blatant bid to boost ticket sales – on a day meant to celebrate women’s achievements, a year after the murder of Sarah Everard, and amid a high-profile campaign to make misogyny a hate crime – was never a good idea.
Tasteless, offensive, ill-judged (if, in fact, any judgement was shown at all), the sorry episode highlights just how out of touch The London Dungeon was with the public mood, putting commercial considerations above all else and underestimating the risk of reputational damage.
Burger King similarly made a whopper of a PR blunder on International Women’s Day last year, tweeting “Women belong in the kitchen”. A supposedly humorous teaser for a campaign promoting a cooking scholarship for female employees, most people did not read beyond this initial Tweet, with many taking to social media to express their disgust at the use of such a sexist trope, on International Women’s Day of all days.
A subsequent Tweet provided much-needed context: “If they want to, of course. Yet only 20% of chefs are women. We’re on a mission to change the gender ratio.” But by then, the damage had been done and Burger King’s PR team spent the day firefighting – responding to media queries, explaining the campaign, apologising for getting the initial message wrong and promising to do better next time, and eventually deleting the offending Tweet.
PR Lessons To Be Learned
So, what lessons can be learned? Do your research. Know your audience. Understand the wider context. Be aware of potential pitfalls and sensitivities. Test your ideas – and not just within your immediate team, to avoid groupthink. Be careful when using humour to promote an issue with the potential to cause offense or upset. And if you get it wrong and a PR debacle ensues, ‘fess up – take swift action to apologise, engage with the media and your followers, and learn from your mistakes.
Tracey is the founder and Chief Executive Officer of Australian Public Affairs – one of Australia’s largest independently owned agencies.
In her 26 years at the helm, she has developed a specialty in reputation risk and reputation management particularly in the legal and litigation, education and training, not for profit, and social policy sectors.
Her background is in media and communications roles.
On the political front she worked as a journalist in both the State and Federal Press Galleries, as a Ministerial media advisor in Australia, and also in the White House on the President’s personal staff during the 1996 Presidential Elections.
She has worked as a Director of Communications for a leading global law firm offering advice to the firm and its clients. She later served as the founding CEO of a health and aged care foundation.
Tracey holds a Graduate Diploma in Commercial Broadcasting, a Bachelor of Laws degree, a Master of Public Affairs and was awarded a Winston Churchill Trust Fellowship in 1996.
She is a director of the Association of Independent Schools of NSW and Knox Grammar School, and previously served for ten years on the national board of the Winston Churchill Memorial Trust.
Holding the first European professorship in collective redress since 2007, Ianika is a pioneer in the field.
As a partner at the law firm Birkway, she combines academia with practice and is internationally recognised for her knowledge of strategies for resolving cross-border mass disputes, using innovative litigation and alternative dispute resolution approaches.
She was a partner with a large litigation boutique where she was member of the Financial and Commercial Litigation practice group and has also worked in-house for two publicly listed litigation funders. Having assisted corporate clients, claim vehicles, litigation funders, governmental and non-profit organisations, ‘bookbuild’ entities, case originators, Dutch and foreign legal counsel on all aspects of mass claim dispute resolution, Ianika is a ‘mass claims all-rounder’ who is sought after for legal opinions and the structuring and implementation of creative litigation strategies in multi-jurisdictional disputes, particularly in the areas of investor protection, competition, data privacy, product liability and consumer law. Additionally, Ianika assists high-net-worth individuals, family businesses, corporate clients and foreign law firms with litigation project management in complex high-profile commercial disputes, involving the use of PR and litigation financing. She has also a keen interest in multi-jurisdictional asset tracing and enforcement.
Ianika is alumna of Tilburg University and holds a PhD on Access to Justice in Mass Claims. She was admitted to the Bar in 1997.
Ianika was born and raised in (communist) Bulgaria and emigrated to the Netherlands in 1991, shortly after the fall of the Berlin wall. She was a Fulbright Visiting Scholar at Stanford University in 2012 and has had a soft spot for California eversince. High on Ianika’s Bucket list is to make an absolutely perfect Pavlova…so far all her attempts have failed miserably (no foto’s attached).
Derede McAlpin is a crisis management and Diversity, Equity & Inclusion (DEI) expert and trusted advisor to CEOs, attorneys, C-suite executives, and Boards of Directors, and public figures.
With a specialty in getting clients into and out of the news – but mainly out – her proven record of developing balanced news coverage has been invaluable to clients facing intense media scrutiny, DEI initiative challenges, bet-the-farm litigation, executive scandals, and other sensitive issues.
Ms. McAlpin also works with leading institutions and corporations to advance their DEI goals, shape Environmental, Social and Governance (ESG) and Sustainability plans, and establish trust with their employees, customers, and community.
Ms. McAlpin currently serves as Senior Vice President and Head of Litigation Communications and Diversity, Equity and Inclusion for LEVICK, a global advisory firm. Prior to LEVICK, Ms. McAlpin served as vice president and chief communications officer for the Association of Corporate Counsel (ACC), the world’s largest organization representing the professional and business interests of corporate lawyers. Her experience also includes work as a strategic advisor to AM Law 100 firms and positions with Howard University, Superior Court for the District of Columbia, 6ABC News (Philadelphia), and a clinical at the City of Philadelphia District Attorney’s Office.
Frequently quoted as an authority on complex DEI, legal, and business issues, Ms. McAlpin is sought after by organizations to speak on the challenging issues confronting corporations and has contributed commentary on global business and crisis issues to such media outlets as NBC Nightly News, the Washington Post, and Thomson Reuters.
Ms. McAlpin received her Juris Doctor degree from the Temple Beasley School of Law and a Bachelor of Arts in Communications from Howard University. She has also received leadership training at the Yale School of Management Executive Education program.
Her additional career highlights:
Derede McAlpin provided executive level counsel and direction for the Association of Corporate Counsel (ACC) and its global board of directors.
Successfully executed the launch of a first-in-class research division for ACC, as well as a broad range of benchmarking and survey products, and data analysis services.
Ms. McAlpin currently chairs LEVICK’s litigation and DEI practice groups. With more than 20 years of communications and legal experience, she represents clients facing high profile crisis and litigation issues, including government investigations, lawsuits, sensitive race issues, corporate scandals, and sexual misconduct allegations, among others.
She also advises clients on class actions, tribal sovereign immunity cases, and Multi-District-Litigation.
A former member of the press, Ms. McAlpin conducts professional development, DEI, and media training workshops for executives and lawyers.
Some of Ms. McAlpin’s most memorable projects include leading international communications on behalf of the nation’s first full face transplant recipient, working on the landmark US Supreme Court First Amendment case Snyder v. Phelps, and providing pro bono support for underrepresented groups and individuals.
During her tenure at Howard University, she launched an amicus curiae campaign in support of respondents in Grutter v. Bollinger, a landmark Supreme Court case on affirmative action in student admissions.
Kate Hartley is a crisis communications consultant and trainer, and the author of ‘Communicate in a Crisis’ (Kogan Page, 2019), a book that explores the changing way people behave in crisis situations.
She is the co-founder of Polpeo, a crisis simulation company that helps some of the biggest brands and agencies in the world prepare for a crisis, and she is a visiting lecturer for various universities. She is a member of the CIPR and a Fellow of the PRCA, and was named in PRovoke Media’s Innovator 25 EMEA list in 2021.
Caroline Sapriel is the founder and Managing Partner of CS&A, a specialist risk and crisis and business continuity management consulting firm with offices in Hong Kong, the United Kingdom, Belgium, The Netherlands, Singapore, and the United States.
With over 30 years’ experience in risk and crisis management, Caroline is recognized as a leader in her profession and acknowledged for her ability to provide customised, results-driven counsel at the highest level.
Over the years, Caroline has advised senior corporate executives in high-risk industries internationally. Her multi-disciplinary background and experience has enabled her to provide clients with an in-depth analysis of their crisis management capability as well as help them develop effective risk and crisis response organizations and stakeholder and reputation management strategies. She has been directly involved in helping clients manage crises in the oil and gas, chemical, transport, shipping, aviation, pharmaceutical and consumer product sectors.
Caroline is an accomplished trainer, facilitator and coach in risk, issues and crisis management as well as in communication skills. As such, she has coached many senior executives at leading multinational corporations internationally. Caroline regularly speaks at international conferences and seminars on risk and crisis management. She is a guest lecturer on corporate crisis management at the University of Antwerp and at the graduate school of public administration of Leiden University.
Caroline is a member of the Business Continuity Institute, of the International Association of Business Communicators and serves on its global ethics committee, and of the European Association of Communications Directors. In 2011, she received a Gold Quill Award from IABC for her firm’s 10 Commandments of Crisis Management. She has authored many articles on the subject of crisis management and co-authored two books – Crisis Management – Tales From the Front Line and 25 years of Crises in Review: The Good , The Bad and The Ugly – with CS&A Senior Partner Dirk Lenaerts. Prior to establishing her own consulting firm, Caroline held various senior management positions with international communications consultancies where she helped clients respond to crises and enhance their crisis communication capabilities.
Caroline is fluent in French, English, Spanish, Hebrew and Mandarin, and holds a BA degree in Chinese Studies and a BSc degree in International Relations.
Sarah is a Senior Consultant at the leading London-based Litigation PR and legal sector reputation management agency, Bell Yard Communications.
Sarah has more than twenty years’ experience in professional services communications, spanning media relations, issues management, corporate and crisis communications.
Before joining Bell Yard Communications where she focuses on profile-raising for law firms as well as advising on litigation PR and reputational issues, Sarah was Global PR Manager at leading law firm, Linklaters LLP.
She was previously a Director at international communications consultancy, Citigate Dewe Rogerson, where she developed reputation management and thought leadership campaigns for a diverse mix of financial, legal and corporate clients.
Sarah began her public relations career at Spada, a specialist professional services communications agency, following a stint as a journalist.
She holds a degree in French and German from the University of Oxford and a Masters in Photography Arts from the University of Westminster.