Free With Registration: Cross-Border Investigations
Claudius O. Sokenu, a partner at Arnold & Porter, and Jessica L. Medina and Tiffany A. Archer, associates at the firm, write: Multijurisdictional investigations tend to multiply the magnitude of complex investigatory issues that a company faces in government investigations. Among many others, these issues include data privacy laws or other blocking statutes, employee-friendly labor laws, attorney-client privilege issues, language and cultural barriers, conflicting information technology platforms, document retention policies and practices that fall short of U.S. standards, and improper application by U.S. government agencies of Mutual Legal Assistance in Criminal Matters Treaties or Memoranda of Understanding. Counsel conducting internal investigations either for purposes of self reporting or in response to government-initiated investigations or enforcement actions must pay close attention to these pitfalls.
Financing for Offshore Operations
Sidney S. Goldstein and R. Andrew Richards, partners at McCarter & English, discuss the issues to be dealt with by in-house counsel when such a U.S. company intends to finance its offshore operations, whether conducted by it directly or through a foreign subsidiary, secured by offshore collateral, including the tax consequences raised by a foreign subsidiary's guaranty of the obligations of its parent, alternative financing from the Export-Import Bank of the United States and more.
Lee G. Dunst, a partner at Gibson, Dunn & Crutcher, writes: In recent years, the Alien Tort Claims Act (an obscure U.S. statute that had remained essentially unused for more than 200 years) has been utilized by many non-U.S. plaintiffs to file U.S. lawsuits against companies with international operations, alleging that those corporations are responsible for human rights-related violations occurring outside the U.S. Over the last few months, in particular, there have been several important events in U.S. courts concerning cases under the Alien Tort Claims Act, which highlight some important themes in this area and may provide some guideposts for companies facing these lawsuits in the future.
Dorothy R. Auth, a partner at Cadwalader, Wickersham & Taft, and Andrew C. Chien and Jason M. Rockman, associates at the firm, write: While most entrepreneurs have dozens of "great" ideas for starting companies, in actual practice most companies are started by picking a single good idea that can be grown into a successful product. If all goes well, this initial idea provides the financial wherewithal that enables the company to take more of these ideas and nurture them into products. Because the core technology of an initial good idea is so critical to the company's future viability, it must be vigorously protected from the outset.
Henry Morgenbesser and Pieter De Koster, partners at Allen & Overy, and Felicity Gemson, an international professional support lawyer at the firm, write that for companies considering a downsizing or work force reduction in Europe, the countless rules, regulations and timelines can at first seem daunting. But if proper procedures are not followed, national laws commonly specify that any dismissals are ineffective or cannot take place, so that a company is back to "square one" and must restart, delaying the progress of its restructuring plans. With the risk of criminal liability (though rare in practice) and financial penalties thrown into the pot, shortcuts are clearly not worthwhile.
