The Network Lecture Series: Nathan Bush’s Corruption and Fraud in China Part II

By By Mike Perez, J.D. Candidate Class of 2012 | Posted on

On August 29th, 2011, Nathan Bush, Partner at O’Melveny & Myers, Beijing, delivered a lecture titled “Corruption & Fraud in Contemporary China: Challenges for U.S. Companies & Investors.” Mr. Bush’s lecture addressed two equally important questions:

(1) What pressures do U.S. companies face when operating in China, and

(2) What challenges do Chinese companies face when listing on American stock exchanges?

In answering the first of these queries, Mr. Bush took the lecture attendees through a brief history of Chinese political and social culture, Chinese anti-bribery laws, the Foreign Corrupt Practices Act, Dodd-Frank’s strengthened whistleblower protections, and the U.K. Bribery Act. In tackling the second question, Mr. Bush focused on reverse- takeover mergers of shell U.S. companies listed on American stock exchanges by Chinese companies and the recent intensification of investigations into those companies’ dealings.

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The California Amazon Tax

By Angelica Salceda, J.D. Class of 2013 | Posted on

In a recent tentative deal with California lawmakers, Amazon will continue doing business as usual and will delay collecting taxes from online sales until September 2012.

The online retailer was the main target of Assembly Bill 28x that mandated Amazon to gather taxes from California sales starting July 2011. In response to the mandate, Amazon initiated a referendum campaign to challenge the law. (more…)

DOJ Puts the Brakes on Proposed AT&T T-mobile Merger

By Peter Benesch, J.D. Class of 2013 | Posted on

On August 31, the Department of Justice (DOJ) brought suit to block the proposed merger of AT&T and T-mobile, the second and fourth largest mobile phone service providers in the nation. The DOJ asserts that the combination would result in “higher prices, fewer choices, and lower quality products.”
The DOJ’s argument is bolstered by the observation that T-mobile has been an engine for innovation and competition in the market in the past, as it was the first carrier to bring Android-powered handsets to market and to introduce various unlimited service plans. However Deutsche Telekom, the company that owns T-mobile, has stated that that it no longer plans on investing capital in the U.S. mobile phone service market. This statement, if credible, would make it more difficult for a court to conclude that T-mobile would be able to continue to serve as a source of competition and innovation in the future.

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The Network Lecture Series: Nathan Bush’s Corruption and Fraud in China Part I

By Mike Perez, J.D. Candidate Class of 2012 | Posted on

On August 29th, 2011, Nathan Bush, Partner at O’Melveny & Myers, Beijing, delivered a lecture titled “Corruption & Fraud in Contemporary China: Challenges for U.S. Companies & Investors.” Mr. Bush’s lecture addressed two equally important questions:

(1) What pressures do U.S. companies face when operating in China, and

(2) What challenges do Chinese companies face when listing on American stock exchanges?

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The Unveiling of a Jobs-Tax Proposal

By Angelica Salceda, J.D. Class of 2013 | Posted on

In a roomful of business leaders, Governor Jerry Brown recently released a jobs-tax package that, as described by the Governor’s office, expands a jobs-credit and reduces taxes for businesses investing in manufacturing. The jobs-tax package — a three-point jobs plan — would:

1. Expand the current jobs credit by increasing the credit from $3,000 to $4,000, increasing eligibility to employers with fewer than 50 employees, placing a sunset on the credit at the end of 2013, and preventing double-dipping with the Enterprise Zone credit;

2. Provide a sales-and-use-tax exemption (SUT) for purchases of manufacturing equipment. Specifically, the proposal would include an exemption for firms in the manufacturing; biopharmaceuticals; alternative energy production such as solar, wind and tidal; and software publishing industries; and

3. Implement a mandatory Single Sales Factor (SSF) Apportionment for all multistate businesses. (more…)

The Effects of Upcoming SEC Regulations Governing Accredited Investor Status

By Peter Benesch, J.D. Class of 2013 | Posted on

In March the SEC finished receiving comments on an alteration mandated by the Dodd-Frank Act that changes the calculation which determines whether an individual can be considered an “accredited investor.” The alteration, which already went into effect upon passage of the Dodd-Frank Act, excludes the net equity an investor may have in his/her home from the calculation of his/her net worth. This change is significant because there are a large number of relatively small financial institutions that are only allowed to engage accredited investors as clients, given those institutions do not comply with the plethora of filing/reporting requirements generally required for public offerings.

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Johnson, Sylvester, Funke, oh my!: The ARB Paves the Way for Greater SOX Whistleblower Protection

By Mike Perez, J.D. Candidate Class of 2012 | Posted on

Earlier this year, The Network reported on some changes made to the Sarbanes-Oxley (SOX) whistleblower provisions by the enactment of the Dodd-Frank bill. In recent months, the Administrative Review Board (ARB) – the appeals board for decision issued by Administrative Law Judges in the Department of Labor – has made monumental transformations to existing case law regarding whistleblower retaliation claims. The alterations the ARB has made are a clear departure from previous SOX whistleblower case law and revitalized whistleblowing as a public service deserving of protection.

Under 18 U.S.C. § 1514A, it is illegal for any public company subject to SOX to discharge employees, contractors, subcontractors or agents for informing certain entities about certain enumerated SOX violations. If an employee suspects that retaliatory acts were taken against them for their role in reporting a SOX violation, the employee must file a complaint with the Occupational Safety and Health Administration (OSHA) within 180 days of the retaliatory act – increased from 90 days by Section 922(b) of the Dodd-Frank Act. After OSHA conducts an investigation, it issues an initial decision. If either party disputes OSHA’s decision, that party may appeal to the Department of Labor Office of Administrative Law Judges. There, the purported whistleblower must establish a prima facie case for SOX protection. In order to establish a prima facie case, the claimant must prove (1) he or she engaged in SOX protected activity, (2) the respondent took unfavorable employment actions against complainant, and (3) the protected activity was a contributing factor to the adverse action.

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Revamping Patent Law: What it Means for Business Method Patents

By Angelica Salceda, J.D. Class of 2013 | Posted on

 

The Senate and House of Representatives recently passed legislation that revamps patent law by updating the process for challenging patents and awarding a patent to the first inventor to file a specific claim.Of particular interest to our readers, the “American Invents Act” (S. 23 and H.R. 1249) creates a new post-grant review procedure that applies to all patents and a special one (section 18) that applies only to business method patents relating to financial services. (more…)

Dodd-Frank One Year Later: A Lot of Unfinished Business

By James Nguyen, J.D. Class of 2013 | Posted on

The one-year anniversary of the Dodd-Frank Act (DFA) marks an important moment to review and reflect on the transformative changes that have taken place since enactment of the sweeping reforms.  Yet, much of the work to implement those reforms is still underway.A slew of reports and studies were released to recognize the significant milestone, and of which there are a few worth reviewing:

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Transparent Oil: New Dodd-Frank Requirements

By Angelica Salceda, J.D. Class of 2013 | Posted on

Written by Anderson Franco & Angélica Salceda

Theoil industryhas recently criticized the Dodd-Frank Act’s oil and gas reporting rules by claiming that the transparency requirements will result in restrained money flows between oil companies and governments.  Under Dodd-Frank, all oil, gas and mining companies registered with the SEC must report payments to foreign governments on a country-by-country, and project-by-project basis.

The transparency requirements will provide detailed, standardized, and comparable data that will pressure governments to improve their revenue reports and strengthen oversight.  Critics claim that the disclosures required by Dodd-Frank undermine the voluntary standard established by theExtractive Industries Transparency Initiative(EITI).

TheEITIis a global standard that promotes revenue transparency and provides a methodology for monitoring and reconciling company payments and government revenues. Nevertheless, only 11 of the 35 EITIimplementing countries fully comply with the requirements.

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