The challenges in navigating the legal landscape are magnified with cross-border issues. The multidisciplinary attorneys who comprise Olshan’s Cross-Border Practice provide an expansive range of international legal issues and services, which include supporting due diligence inquiries of counterparties in sophisticated commercial transactions and designing and implementing compliance programs. We assist U.S. companies doing business overseas and foreign-based companies and individuals regarding commercial activities that trigger U.S. regulatory and compliance issues and litigation. Olshan attorneys have built an active network with offshore counsel through membership in Globalaw and the Brazil/American Chamber of Commerce.
Litigation and Asset Recovery
At Olshan, we regularly handle cross-border litigation, arbitrations and asset recovery through domesticating final foreign judgments in U.S. courts and tracing and recovering misappropriated and/or missing assets to satisfy the ultimate U.S. judgments. We regularly represent foreign whistleblowers in U.S. regulatory actions involving global companies where activities abroad result in U.S. regulatory scrutiny. Members of our White Collar Defense and Securities Litigation and Enforcement Practice Groups have routinely defended companies and individuals in prosecutions and civil enforcement matters brought under the FCPA (Foreign Corrupt Practice Act), securities laws and the Commodity Exchange Act and by OFAC (Treasury’s Office of Foreign Assets Control). Our cross-border litigation attorneys, in collaboration with Olshan’s Shareholder Activist Group, provide support to counsel in foreign jurisdictions involving U.S.-listed securities in off-shore proceedings regarding the U.S. securities laws, corporate governance and privilege issues.
U.S. Discovery in Support of Foreign Proceedings
U.S. law (28 U.S.C. § 1782, known as “Section 1782”) allows an “interested party” to a foreign proceeding (including foreign civil and criminal proceedings) to seek U.S.-style discovery from a person or entity located in the United States. Such discovery – for documents, deposition testimony and responses to written interrogatories – is often not available in the foreign jurisdiction and may be used in foreign actions which are either pending or contemplated. The evidence gathered through Section 1782 has proved critical to Olshan’s clients pursuing foreign proceedings, allowing clients to build winning appraisal and corporate governance cases.
Olshan’s cross-border practice encompasses counselling clients on regulatory issues, conducting internal reviews and audits of compliance procedures and designing and implementing state of the art compliance programs for multinational companies where operations span multiple continents. We represent clients on purchases, sales and acquisitions of property or companies in the United States that trigger concerns and approvals by CFIUS (Committee on Foreign Investment in the United States). Our regulatory compliance attorneys help companies both address trade and export risks and defend individuals and companies in OFAC and FCPA cases. Examples of recent regulatory matters include representing a U.S. biotech company in an internal review concerning possible shipments to embargoed and restricted countries and an assessment of the compliance program in place, and assisting a Chinese company in successfully navigating CFIUS review and securing approval of the purchase and sale of a U.S. company to a foreign purchaser.
Olshan Helps IsZo Capital Score Activist Litigation Victory in British Virgin Islands
On March 5, 2021, Olshan client IsZo Capital prevailed in its lawsuit against NYSE-listed Nam Tai Property Inc. and an affiliate of Nam Tai’s de facto controlling stockholder, Kaisa Group Holdings Limited in an action before the Eastern Caribbean Supreme Court, which was affirmed by the Eastern Carribean Court of Appeal on October 4, 2021. The Court ruled in IsZo’s favor and voided a $170 million private placement executed by Nam Tai that distributed more than 16 million shares to the Kaisa affiliate and a third party. The Court found that execution of the private placement was a breach of Nam Tai’s directors’ fiduciary duties and was undertaken to secure Kaisa’s control of the company in response to a requisition from approximately 40% of the outstanding shares to convene a meeting of Nam Tai shareholders to remove and replace the Kaisa-affiliated directors from the Board. Olshan’s litigation team led by Lori Marks-Esterman and Adrienne Ward, and supported by senior associate Theodore Hawkins, used Section 1782 to gather evidence from Nam Tai’s financial advisor, PR firm and the sole U.S.-based director, which the U.K.- and British Virgin Islands-based trial team used to demonstrate that Nam Tai’s proffered reason for the private placement was not true. Activist Partner Ryan Nebel provided support throughout the trial and on appeal on corporate governance issues. Read the full opinion here.
Olshan Achieves Favorable Arbitration Settlement for Firm Client in International M&A Dispute
In March 2021, Olshan successfully resolved a proceeding brought before the Singapore International Arbitration Center applying New York law to a dispute with a publicly-traded company’s failure to pay the final installment of a $70 million M&A contract for the purchase of a private business. The defaulting company sought to delay payment citing preservation of liquidity arising from the COVID pandemic. The proceeding settled after Olshan filed its claim, selected an arbitrator and retained a leading expert on New York law. The settlement agreement provides payment to client of all delinquent M&A payments, damages and reimbursement of all legal expenses, which in total exceeded the maximum legal damages it would have been entitled to had it prevailed in the arbitration. Litigation partner Kyle Bisceglie worked with Globalaw Singapore member firm, Kelvin Chia and Shay & Partners, a Globalaw Taiwan member.
Critical Evidence Obtained through Section 1782 Helps Dissenters Secure Victory in Cayman Islands Appraisal Action
On Marcy 18, 2020, the Grand Court of the Cayman Islands released one of the most significant decisions on fair value appraisal in the jurisdiction, finding that the fair value of dissenting shareholders’ shares of Nord Anglia Education, Inc., exceeded the price offered in a merger transaction. Olshan obtained Section 1782 discovery from several financial institutions, including Nord Anglia’s U.S.-based investment bank. In reaching its decision, the Grand Court expressly referenced the 2,900 documents produced by the investment bank, and wrote that such documents “were obviously relevant to advancing a reasoned critique” of the bank’s discounted cash flow analysis. Lori Marks-Esterman led the litigation team. Read the full opinion here.
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