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© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. Elsa Manzanares, Partner www.BraumillerSchulz.com In-House Counsel Summit Successor Liability: Export & Import Considerations April 25, 2013
© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. Definition and Introduction Successor liability means the potential liability of the acquiring company for violations committed by the acquired company. Typically triggered via a merger or acquisition. –Certain exceptions where an asset sale could generate the same successor liability as a merger or acquisition. i.e., a de facto merger or a continuation of the business. Not codified in customs and export laws. Authority extrapolated from federal court or common law, and from rules of constitutional construction. Liability includes: - Audits -Investigations -Disclosures -Liquidated damages -Penalties -Additional duties, taxes, fees. 2
© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. Seminal Cases Export: Sigma-Aldrich, 2002 Hughes Electronics/Hughes Aircraft and Boeing, 2003 Import: Shields Rubber Co., 1989 Ataka America, 1993 3
© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. Hypothetical Transaction #1 Giant Corporation (Giant) is in the process of acquiring Little Corporation (Little). Little sells in the domestic market and for export. Little’s products and technology are subject to US export controls. After acquisition, Little will be merged into Giant as an operating division. Does Giant have any concerns? What should Giant do to mitigate those concerns? 4
© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. Export Controls More than 20 different US Government agencies have regulations controlling exports. The primary agencies are the Directorate of Defense Trade Controls (DDTC) of the Department of State and the Bureau of Industry & Security (BIS) in the Department of Commerce. DDTC administers the International Traffic in Arms Regulations (ITAR) in 22 CFR 120-130 governing export of defense articles and technical data. 5
© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. Export Controls (cont’d) BIS administers the Export Administration Regulations (EAR) in 15 CFR 730-774, governing export of commercial and dual-use articles and technology. Both agencies have a strict policy of enforcement. Both agencies also have procedures for voluntary disclosures. 6
© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. Basic Compliance Issues Some situations that can result in export compliance liability. For example: Failure to obtain and use appropriate export licenses, Failure to properly declare export transactions, Incorrect license jurisdiction, Deemed exports – foreign national employees, visitors, contractors, and Failure to maintain records And of course, intentional or fraudulent conduct. 7
© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. Successor Liability In An Export Situation The basic rule: By acquiring the company, you are acquiring their export compliance liabilities. If the acquired company is found to have export compliance liabilities, the acquiring company will be held responsible for them. This can occur after the acquisition is complete. This rule has been upheld in the courts. The basic strategy: Conduct full due diligence prior to acquisition and voluntarily disclose any compliance issues. Sometimes disclosure does not occur until after closing. 8
© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. Due Diligence and Disclosure Examples of due diligence that should be performed: Export policies, procedures and internal structure Review past 5 years of export records and licenses Obtain a report from Census containing export data Export violations, disclosures penalties Export compliance training given and received Anything discovered needs to be disclosed. 9
© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. Hypothetical Transaction #2 Acme Corporation (Acme) is acquiring ABC Company (ABC), a US importer and distributor. ABC has been importing for several years and takes advantage of free trade agreements. After acquisition, ABC’s business and assets will be incorporated into Acme and ABC itself will be dissolved. Does Acme have any concerns? What should Acme do to mitigate those concerns? 10
© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. Customs & Import Controls US Customs & Border Protection (CBP) enforces the Tariff Act of 1930 (Title 19 USC), the Customs Regulations (19 CFR), and the Harmonized Tariff Schedule of the US. CBP has broad authority to examine goods, review transactions, conduct audits, and investigate violations. CBP can also assess penalties and liquidated damages for violations. 11
© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. Basic Compliance Issues Some import and Customs compliance issues: Undeclared assists, Tariff classification errors, Use of free trade agreements, Dumping and countervailing duties, Use of duty free exemptions, and Recordkeeping errors. And of course, deliberate or fraudulent activity. 12
© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. Successor Liability In An Import Situation If the acquiring company maintains the acquired company as a separately incorporated subsidiary, the liability remains with the subsidiary. If the acquired company is merged into the acquiring company and is dissolved as a separate corporation, the liability is typically dissolved - but there are exceptions. There are many other things that may need to be done or fixed – but that is another discussion. 13
© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. Decision of the US Court of International Trade (USCIT) in United States v. Adaptive Microsystems LLC, Slip Op. 13- 50, Apr. 10, 2013 Adaptive Microsystems’ predecessor company had alleged Customs violations. Adaptive Microsystems went into receivership, then was acquired. New company also named Adaptive Microsystems. A corporate officer of new company was also officer of predecessor company. A substantial number of employees were transferred to new company. 14 Latest Update
© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. A Wisconsin court had authorized the acquisition and said that the new company would not assume any of the predecessor’s liabilities. The USCIT did not agree with the Wisconsin court. The USCIT cited Wisconsin law on continuation of liability and that the Court may not have been aware of the Customs liability. The USCIT cited the continuation of officer and employees, the use of a very similar name, and Adaptive Microsystems’ own representations that it was the same company. 15 Latest Update (cont’d)
© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. Based on this, the new Adaptive Microsystems was responsible for the liabilities of the predecessor company. This ruling may be subject to appeal to the Court of Appeals for the Federal Circuit, so may be subject to change. 16 Latest Update (cont.)
© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. Due Diligence and Disclosure Import and Customs compliance issues to review in an acquisition: Compliance policies and procedures, ITRAC report covering 5 years of imports, Use of free trade agreements and duty free exemptions, Last 5 years of import records – if they exist, Tariff classification database, Purchasing records for assists and separate payments, and Products subject to dumping and countervailing duty. File a prior disclosure for any issues discovered. 17
© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. Takeaways This is a subject frequently overlooked in an acquisition but may be dangerous. The regulating agencies may be vigilant in enforcement, but also have generous prior disclosure procedures. Find and fix the problems before the acquisition is final. Due diligence and voluntary disclosures will help to prevent successor liability issues. Get expert assistance if you don’t have it in-house. 18
© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. Contact Information 19 Elsa Manzanares Partner Braumiller Schulz LLP International Trade Law 5220 Spring Valley Rd Suite 200 Dallas, TX 75254 214-348-9306 Elsa@BraumillerSchulz.com www.BraumillerSchulz.com
© 2013 Braumiller Schulz LLP Any copying or distribution is prohibited. Adrienne Braumiller, Partner Michelle Schulz, Partner
© 2013 Braumiller Schulz PLLC Any copying or distribution is prohibited. In-House Counsel Summit Export & Import Considerations and Successor Liability.
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