Imagine you are focused on the latest growth trends of your business, working hard to forecast where your next sales will come from. You're thinking about what new staff you will need to support that growth. While you are preparing for an important meeting related to a promising business prospect, a receptionist in your office notifies you that your company has just been served with a lawsuit. The notice says that you have only a few weeks to respond and you now have to set aside other business matters to assess the case, locate help, and decide on a strategy for addressing the claim in an unfamiliar legal system. For many foreign investors, facing the risk of being sued is perhaps the most daunting part of conducting business in the U.S.
The next installment of our doing business series provides an introduction to litigation in the United States. It aims to give readers some basic background of the life cycle of a lawsuit, and describes options for dealing with a dispute, whether through litigation, mediation or arbitration. Understanding what will happen, being prepared, and thinking ahead about what to do in such an event, can help a company face the claim, and also allow the primary focus to stay where it should be: moving a business forward.
Daniel J. Vecchio is a guest author and a member of GSB's Litigation Practice Group. He can be reached at email@example.com or at 206.816.1348.
Can a Bankruptcy Court order the sale of a vessel “free and clear” of a seaman’s maritime lien for maintenance and cure under Bankruptcy Code § 363? According to the Ninth Circuit’s recent ruling in Barnes v. Sea Hawaii Rafting, No. 16-15023 (Mar. 28, 2018), the answer is no: absent a lienor’s consent, only a court sitting in admiralty has the power to extinguish a maritime lien.
A Shipboard Accident Leads to Litigation and Bankruptcy
In Barnes, the plaintiff in the court below was the captain of the vessel M/V Tehani, a 25-foot rigid hull inflatable boat used for sightseeing and snorkeling voyages out of Honokohau Harbor in Hawaii. In July 2012, a faulty fuel tank caused an explosion aboard the Tehani, and the captain suffered serious injuries requiring extensive medical treatment. Lacking insurance through his employer, the captain sued the boat’s owner, Sea Hawaii Rafting, LLC (“Sea Hawaii”), and its owner/manager, Kris Henry for maintenance and cure under federal admiralty law, and also sued the Tehani in rem. All three defendants answered the plaintiff’s complaint, and the parties proceeded to litigate for some fifteen months.
Foreign clients investing in the U.S. know there are risks of litigation and conflict that they might not anticipate when conducting business at home. One area, however, that is usually a particularly rude surprise are the U.S. laws relating to environmental matters, particularly relating to environmental contamination of land. One might think that a party not at fault for creating contamination would be safe, but that's not always the way U.S. law works when it comes to Superfund sites. These are sites around the U.S. where hazardous substances in the environment threaten human health or the environment, and clean-up is required.
Thanks to a system of “joint and several” liability, each potentially responsible party may be responsible for the entire cleanup of a site absent contributions from others. Potentially responsible parties in Michigan alone, were reported by the Michigan government to have contributed over $599 million to Superfund clean-up before 2016. Paying even a small percentage of such figures can be costly.
Our next installment in our Doing Business in the U.S. series explains the essential structure of U.S. laws governing such environmental risks. It tells you who can be held liable, and what defenses to liability are possible. It tells you how to avoid assuming liability inadvertently when investing in real estate. There is an old adage: An ounce of prevention is worth a pound of cure. These words of wisdom are particularly apt in describing how a bit of caution before investing in real estate can significantly reduce the risk of substantial liability under environmental laws. Enjoy!
The U.S. Department of Homeland Security (USDHS) recently confirmed its plans to publish a Notice of Proposed Rulemaking by June 2018 to remove from its regulations certain H-4 spouses of H-1B nonimmigrant workers as a class of noncitizens eligible for employment authorization.
The plans regarding timing were gleaned from documents the government filed on February 28, 2018, in a case pending at the D.C. Circuit Court of Appeals. That case, Save Jobs USA v. DHS, involves a challenge by a group of tech workers to the legality of the original H-4 EAD rule, which became effective on February 25, 2015.
Perhaps you have heard about some of the huge fines companies have faced after being charged with antitrust violations, such as Google’s $2.7 billion fine in June 2017, or the $26.7 million Euro judgment against one of Heineken’s subsidiaries in Greece in July 2017, or the $1.3 billion fine currently under review against Intel. Government suits are bad enough, but after them come private lawsuits from other companies affected by the same conduct. Antitrust litigation from a few ill-considered decisions of individuals in a company can take years to resolve and millions to defend. They disrupt companies and demand substantial human resources, as well. There is no doubt that avoiding antitrust violations is a much more cost effective strategy than waiting until problems occur.
Our next installment of our Doing Business in the U.S. series is a brief introduction to U.S. antitrust laws. For more information or additional training on guidance on antitrust laws, feel free to contact Don Scaramastra at firstname.lastname@example.org or at 206.816.1449.
Businesses and entrepreneurs on both sides of the Pacific should be aware and celebrate that just as cross-border commerce is increasing, so, too, is international judicial recognition of commercial judgments, as evidenced by recent Chinese and Washington State court rulings.
In 2017, a Chinese court, perhaps for the first time, enforced a U.S. commercial judgment. An article by Dr. Jie (Jeanne) Huang published by University of New South Wales’ China International Business and Economic Law initiative  reported on the 2017 decision, which recognized and enforced a monetary judgment from the Los Angeles County Superior Court. The case is Liu Li v. Tao Li and Tong Wu  decided by the Intermediate People’s Court of Wuhan City, China.
International travelers from and to the United States may increasingly encounter an inspection of personal electronic devices conducted by U.S. Customs and Border Protection (“CBP”) officers. The selection may be for a variety of reasons, which may include that the traveler does not have the proper travel document or visa; the person has previously violated U.S. laws; or the person might be selected randomly for a search.
U.S. employers who sponsor foreign workers for temporary H-1B work visas should start preparing now for the upcoming H-1B cap filing season commencing this year on Monday, April 2, 2018. Employers should start identifying those first-time H-1B workers for which petitions will be filed during the first five business days in April. International students holding F-1 visas are the most common beneficiaries for these "quota subject" H-1B petitions.
On January 2, 2018, the Committee on Foreign Investment in the United States (CFIUS) rejected Ant Financial’s plan to acquire U.S. money transfer company MoneyGram International over national security concerns. According to Reuters’ report, CFIUS rejected the deal due to concerns over the safety of data that can be used to identify U.S. citizens. The companies have already undergone the CFIUS process three times and proposed safeguard measures, but these efforts did not clear CFIUS’s concerns. The companies decided to terminate their deal after CFIUS rejected their proposal. Ant Financial needs to pay MoneyGram a $30 million termination fee for the deal’s collapse.
One of the things any active investor in the United States almost always needs is a place in which to operate its business. Buying or leasing property can be tricky, however. For example, one can face liabilities by merely becoming a lessee of real property with environmental problems, such as contamination from prior uses. Zoning regulations might not allow a company to use the property as planned. Disputes or judgements associated with real property can create huge headaches for a new owner or tenant, alike.
Foster Garvey’s International practice group comprises a cross-disciplinary group of attorneys practicing in areas ranging from business transactions, immigration, maritime, government regulatory work, transportation and logistics and estate planning. The group members include bilingual and multicultural attorneys who are well-versed in handling these subject matters in a cross-border context. A number of attorneys have been actively practicing in the international arena since the early 1970s.