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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.
Continue Reading Shedding Light on CFIUS: Appeals Court Holds That CFIUS Review Lacks Constitutional Due Process

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).
Continue Reading Film Tax Incentives in Latin America

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.
Continue Reading Twice Bitten But Not Shy, The FCC Is Handed The DC Circuit’s Prescription for Internet Regulation

The Second Circuit has affirmed the injunctions against Argentina in NML Capital, Ltd. v. Republic of Argentina, a case that we have been following in this blog (see here and here), although the amended injunctions shall be stayed pending the resolution by the Supreme Court of a timely petition for a writ of certiorari.
Continue Reading Argentina’s financial fate now depends on the U.S. Supreme Court

When the Supreme Court issued its opinion in U.S. v. Windsor on June 26, it invalidated the federal definitions of “spouse” and “marriage,” and, in so doing, altered employer obligations with respect to same-sex marriages. Although the media coverage of this decision has understandably focused on other implications of the decision, it inevitably creates new challenges for employers. In this post, we will provide insight into how the decision will affect employers moving forward and provide suggestions as to how employers can best prepare in the face of new areas of uncertainty created by this decision.
Continue Reading Considerations for US Employers Post-DOMA

Unexpectedly, the government of Argentina has decided to enforce law 23,316, enacted on May 23, 1986, regarding certain requirements for dubbing motion pictures and television programming (the “Dubbing Act”), which was only in the books and never implemented… until today. President Kirchner issued decree 933/2013, which after 27 years explains and expands the Dubbing Act (the “Decree”). Both regulations are full of confusing and contradictory clauses which will cause more than a headache to the film & TV industry and will be an invitation for litigation.
Continue Reading Film distributors will face new administrative hurdles in Argentina

On May 23, after the approval of 24 Mexican states (Aguascalientes, Baja California Sur, Campeche, Chiapas, Chihuahua, Coahuila, Colima, Durango, Guanajuato, Hidalgo, Jalisco, México, Morelos, Nayarit, Puebla, Querétaro, Quintana Roo, San Luis, Potosí, Sonora, Tamaulipas, Veracruz, Yucatán and Zacatecas) the president of the Permanent Commission (Comisión Permanente) has declared constitutional the Telecommunications’ Reform and sent the bill to President Peña Nieto for his signature and publication in the Official Gazette.
Continue Reading Mexico’s Telecommunications’ reform ready to be signed by President Peña Nieto

As an executive or in-house counsel, your work likely reaches across the globe.

90% of companies in the United States are involved in litigation—much of it international. American companies have increased overseas business from 49% in 2008 to 72% as late as 2010.

If you work for a medium to large corporation, you are likely working overseas or interacting with colleagues that are. This means that you are likely working around the clock putting out fires, making deals, and juggling regulatory hurdles. Are you worried of running so fast in such unknown territory that you may miss something? Do you wish you had more time to learn everything to minimize your company’s business and litigation risks?Continue Reading 6 Ways to do Business Overseas While Reducing the Perils of Future Litigation

By Brian Arbetter

Mexico’s new Federal Labor Law (FLL) took effect on December 1, 2012. The reform seeks to modernize Mexico’s labor law. The new FLL’s major, employment related amendments include increased regulation of outsourcing jobs, increased flexibility in hiring and payment of wages, the addition of the concepts of diversity, nondiscrimination and anti-harassment, and parental leave rights.

Previously, companies entering Mexico would set up two entities, one of which would be used to outsource employment to avoid paying worker benefits, including avoiding Mexico’s mandatory 10% employee profiting sharing requirement. Now, among other requirements, employers may only outsource employees if the outsourced employees perform work of a specialized character. In other words, under the new FLL, companies will need to evaluate the way they are structured or risk paying all employees (outsourced or otherwise) all employment related liabilities (such as notice requirements, severance payments, profit-sharing and social security).Continue Reading Mexican Federal Labor Law Reform: What Companies Doing Business in Mexico Need to Know