Anti-corruption due diligence can be vexing even in the best of conditions; it is often made more complicated by time and business pressures that arise in the context of a merger or acquisition or an urgent sales opportunity. Anti-corruption compliance is always fact-intensive, and due diligence is no exception, requiring many judgment calls about what issues to prioritize and how to deploy limited resources. This article aims to provide a basic outline of seven key steps to consider in anti-corruption due diligence.
“We are in the soup” exclaimed, federal judge Thomas Griesa, referring to Argentina allegedly defaulting on its sovereign bonds. And so we are.
According to bondholders, on July 30 of 2014, Argentina defaulted on its sovereign debt for the eighth time in its history. That a developing nation is accused of defaulting on its international debt might not warrant legal headlines, but in this case the “soup” was precipitated by a court order from Judge Griesa, of the Southern District of New York. Judge Griesa is presiding over litigation brought by Argentina’s “hold-out” bondholders, including hedge funds who refused to restructure their bonds after Argentina’s previous bond default in 2001, and chose instead to pursue judicial relief.
Sheppard Mullin client, Otay Tijuana Venture, announced this week that a cross-border pedestrian bridge linking San Diego with Tijuana’s A.L. Rodríguez International airport will be set to open next year. The project, which began in 2008 when Otay Tijuana Venture purchased the land in Otay Mesa, involved Presidential permits in both countries as well as unique Public Private Partnerships with U.S. and Mexican customs and immigration authorities. It is the first project to connect a U.S. facility with a foreign air terminal.
In a stunning ruling issued on July 15, 2014, the U.S. Court of Appeals for the D.C. Circuit held that review by the Committee on Foreign Investment in the United States (“CFIUS”) and the subsequent unwinding of the investment deprived the foreign investor of due process under the 5th Amendment to the U.S. Constitution. Ralls Corp. v. Comm. on Foreign Investment in the United States, No. 12-cv-01513 (D.C. Cir. Jul. 15, 2014) (a copy of the opinion is here). If upheld, the ruling may require fundamental changes in how CFIUS conducts its reviews and may enhance foreign investors’ ability to influence or challenge the outcome of a review.
Distribution of audiovisual content is blooming at a very fast pace, and while the consumer is still demanding for more new content, producers are struggling with this new competitive era. While appetite for content is at its highest peak, and consumer is getting original content from distributors such as Free-TV networks, basic and premium cable, Hulu, Netflix, Amazon, YouTube, and other new competitors, it is hard to breakeven in the television and motion picture industry (most productions are unable to recoup their investment).
Mexico’s landmark constitutional energy reforms, enacted in December 2013, were lauded as the start of a new era for private investment in Mexico. Nearly five months in, how has the government fared in implementing these reforms? Here are the 5 things you need to know.
Effective January 1, 2014, Mexico’s wages for geographic Zones “A” and “B” increased by 3.9%. Zone A includes all of Mexico’s major cities and entry ports. The minimum wage in Zone A is now $67.29 per day.
Zone B includes all other municipalities not included within Zone A. The minimum wage in Zone B is now $63.77 per day.
On Tuesday, January 14, 2014, the United States Court of Appeals for the D.C. Circuit struck down the FCC’s latest effort to mandate “net neutrality”– or promote internet “openness” – under the auspices of implementing the Communications Act. At issue in the case is the Commission’s Open Internet Order, which imposed disclosure, anti-blocking, and anti-discrimination requirements on broadband providers. These requirements were intended to promote investment in broadband deployment by guarding against possible anti-competitive conduct limiting consumer access to internet edge services (e.g., Amazon). The Court, in a decision written by Judge David S. Tatel, noted the narrowness of the Court’s inquiry—not to assess the wisdom of the FCC’s net neutrality regulations, but to determine whether the Commission had proven that the rules were within the scope of the Commission’s statutory grant of authority. With that in mind, the Court invalidated all but the first (and least intrusive) FCC requirement: disclosure of internet traffic management practices.
The Mexican Senate has introduced a constitutional amendment that, if approved, would open the country’s oil market to foreign and private investors. Currently, oil production is controlled exclusively by the state-owned Petroleos Mexicanos (Pemex). The amendment, however, would encourage private and foreign investment by allowing companies to partner with Pemex through the use of production and profit-sharing contracts and licenses, among other things.
In February 2013, the Instituto Nacional Da Propriedade Industrial (the “Brazilian Patent and Trademark Office”), ruled that Gradiente Electronica (“Gradiente”), not Apple, owned the “iPhone” mark in Brazil. The “iPhone” term was registered by Gradiente in 2000, 7 years prior to Apple’s release of its iPhone. The decision came 3 months after Gradiente launched a low-cost Android smartphone using the iPhone brand (see their model here).