Doing business in the United States

2021

2

Hogan Lovells

Doing business in the United States 2021

3

Contents

Introduction1

I.Openness of U.S. markets to foreign investment

2

II.Direct or indirect market entry and choice of entity

8

III. Commercial contracting

20

IV.Labor and employment law considerations

26

V.Immigration laws

34

VI.Intellectual property laws

40

VII. Export control and economic sanction laws

46

VIII. U.S. antitrust laws

56

GOVERNANCE & SECURITIES LAW FOCUS

Proxima Nova A ExCn 35pt

MAY 2020/LATIN AMERICA

Below is a summary of the main developments in US, EU, and UK corporate governance and securities law since our last update in February 2020.

Financial regulatory developments are available here.

IN THIS ISSUE

TABLE OF CONTENTS

COVID-19: Summary of Key Issues.................................................................................... 1

Businesses large and small have been affected by the coronavirus crisis. It seems that no industry has been spared economic hardship. As many states prepare to reopen their economies, there are some businesses that will not be able to resume operations—it is too little, too late. Even with massive spending by the federal government to counteract the economic downturn, it appears that a large number of business bankruptcies may be on the horizon.

A recent New York Timesarticle highlights what it calls a “tidal wave of business bankruptcies” that are coming due to financial fallout from the COVID-19 pandemic. A number of high profile businesses have already declared bankruptcy, including J.C. Penney, Hertz, J. Crew, Neiman Marcus, 24-Hour Fitness, Borden Dairy, and Pier 1 Imports. More are sure to follow.

Objection to IRS Proof of Claim, Filed Before Amendment to Rule 3007 Went Into Effect, Was Properly Mailed Only to IRS

The bankruptcy trustee of a bank holding company was not entitled to a consolidated corporate tax refund when a bank subsidiary had incurred losses generating the refund, held the U.S. Court of Appeals for the Tenth Circuit on May 26, 2020. Rodriguez v. FDIC (In re United Western Bancorp, Inc.), 2020 WL 2702425(10th Cir May 26, 2020). On remand from the U.S. Supreme Court, the Tenth Circuit, as directed, applied “Colorado law to resolve” the question of “who owns the federal tax refund.” Id., at *2.

A basic tenet of bankruptcy law, premised on the legal separateness of a debtor prior to filing for bankruptcy and the estate created upon a bankruptcy filing, is that prepetition debts are generally treated differently than debts incurred by the estate, which are generally treated as priority administrative expenses. However, this seemingly straightforward principle is sometimes difficult to apply in cases where a debt technically "arose" or "was incurred" prepetition, but does not become payable until sometime during the bankruptcy case.

In the wake of the recent economic downturn caused by the COVID-19 pandemic, there will likely be a sharp rise in bankruptcy filings by businesses seeking to obtain relief from the burdens of excessive debt.1 1 Winston & Strawn’s Tax Controversy and Litigation Group litigates tax disputes in the bankruptcy courts and works in conjunction with the firm’s Bankruptcy Practice Group. Portions of this article were originally published by the author in 2008.

In the wake of the recent economic downturn caused by the COVID-19 pandemic, there will likely be a sharp rise in bankruptcy filings by businesses seeking to obtain relief from the burdens of excessive debt.^[1] The bankruptcy code is designed to provide debtors relief and protection from creditors, which includes the Internal Revenue Service (“IRS”).