The ongoing legal dispute between Payone GmbH and a former employee-turned-whistleblower highlights concerns about the use of NON-DISCLOSURE AGREEMENTS in preventing disclosures of illegal activity. The potential unsealing of documents in a forthcoming November 2024 court appeal could offer a rare look into the dynamics of NDA negotiations and the challenges faced by individuals in disputes with large corporations.
The whistleblower has brought forth serious regulatory disclosures against PAYONE, a subsidiary of the European payments giant Worldline accusing the company of engaging in unethical and unlawful practices. These allegations encompass a range of issues, from breaches of anti-money laundering regulations (see BAFIN decision) to violations of UK pension law, prompting legal action in the UK courts.
Sealed “Confidential” Documents at the Heart of the Matter
A pivotal element in these legal proceedings is a collection of documents, exceeding 100 pages, that Payone successfully petitioned the lower court to seal as confidential. These documents encompass a variety of materials, including:
- The whistleblower’s witness statement, dated 14 February 2024
- A Witness Statement supporting Payone dated 12 February 2024
- Exhibit to the witness statement of former Orrick employee
- Drafts of the settlement agreement proposing the withdrawal of pension disclosures drafted on behalf of Payone, Worldline
- Settlement emails (Inter Partes Correspondence) of the Bundle requesting withdrawal of regulatory disclosures
- Letter from whistleblower to Payone dated 14 August 2023
- Claim Form, Particulars of Claim, and Defence statement of case
- Skeleton Arguments and Payone application to seal various documents as confidential (dated 20 February 2024)
- Whistleblower’s written response to the Payone Application dated 20 February 2024
These documents, all currently sealed as secret and restricted from public view, could soon be unsealed and made available for public scrutiny. This potential shift stems from the whistleblower’s successful appeal against the sealing order, with a UK Circuit Judge granting permission to challenge the lower court’s decision.
Court order with reasons for succesful Permission To Appeal application of 19 July 2024:
The Principle of Open Justice Prevails?
In an order dated 19 July 2024 granting the whistleblower permission to appeal, a Circuit Judge highlighted the potential inconsistency of sealing documents that had already been referenced in an open court hearing. The principle of open justice was emphasised by the court, stating:
“It is inevitable that all the material sought to be embargoed after the fact will already have been referred to in the context of a public hearing and/or read by the judge for that purpose and accordingly these were public documents and the principle of open justice should prevail.”
This ruling sets the stage for a full appeal hearing scheduled in November 2024, where the issue of the document sealing will be argued before an appeal Judge. Should the appeal succeed, these documents could become publicly accessible, offering a rare glimpse behind the curtain of corporate maneuvering. The public may witness the lengths to which a corporate giant like PAYONE and Worldline UK&I might go to silence a former employee filled with knowledge of its inner workings – dangling the carrot of a settlement while attempting to bury any evidence of potential wrongdoing under a shroud of NDA secrecy.
Much of the current and tension-prone public discourse surrounding NDAs unfolds amidst a lack of concrete examples of actual agreements and correspondences, often leaving the discussion shrouded in theoretical hypotheticals. This is further exacerbated by the fact that those directly affected by NDAs, namely employees who have signed them, are often legally constrained from sharing the documents per se, leaving a critical gap in the public’s understanding of these agreements’ real-world impact.
The potential unsealing of these Payone / Worldline documents could offer a rare, real-world illustration of the power dynamics and tactics employed in NDA negotiations, particularly in cases involving whistleblowers. This somewhat unprecedented transparency could prove invaluable to other employees facing similar circumstances, whether navigating the complexities of anti-money laundering disclosures or grappling with the aftermath of sexual harassment and NDA abuse.
SRA’s Reprimand Adds to the Intrigue
The potential unsealing of these documents comes on the heels of the Solicitors Regulation Authority (SRA), the regulatory body for solicitors in England and Wales, issuing a 10 August 2024 letter of advice to Orrick Herrington & Sutcliffe (UK) LLP, the law firm representing Payone and Worldline, for a breach of professional ethics.
The SRA’s concerns stemmed from Orrick, Herrington & Sutcliffe LLP ‘s drafting of a proposed settlement agreement, which included terms that could have discouraged the whistleblower from pursuing regulatory complaints making concrete that Payone and Worldline attempted to “interfere” with regulatory investigations.
The Broader Implications
This case highlights the ongoing battle between whistleblowers and corporations, and the challenges individuals face when confronting powerful entities. It also underscores the importance of a robust regulatory framework to protect whistleblowers and indirectly act as a deterrent in that NDAs or surrounding correspondences are not misused to obstruct regulatory investigations [see SRA Warning Notice updated 2024].
The outcome of the appeal hearing in November 2024 will be closely watched by stakeholders across various sectors; ensure to follow Loopline media for further updates.
Sources for help:
- SRA Thematic Review into the use of NDAs
- SRA Reporting and notification obligations.
- SRA resources on the use of non-disclosure agreements.
- Law Society practice note The Use of non-disclosure agreements.
Disclaimer: The author of this article, a former employee of Payone GmbH, is currently engaged in legal disputes with both Payone and Worldline UK&I. While this context may naturally shape the author’s perspective, every effort has been made to present a balanced and objective analysis based on publicly available information and credible sources. Where permissible, copies of court papers and supporting evidence are downloadable or linked for reader perusal. This article is intended for informational purposes only and should not be construed as financial or legal advice. Readers are strongly encouraged to conduct their own research and consult with qualified professionals before making any relevant decisions.
To those currently navigating the complexities of NDA disputes or facing the aftermath of workplace misconduct, please remember: you are not alone. Seek support (https://www.cantbuymysilence.com),and try where feasible to know your rights. Good luck!
