BUSINESS RESTRUCTURING REVIEW VOL. 21 • NO. 4 JULY–AUGUST 2022 1 IN THIS ISSUE 1 U.S.

When it comes to corporate restructuring, the focus tends to remain firmly on the dollars and cents while the immigration consequences for the company’s foreign national employees are sometimes the last items considered, if considered at all. However, these immigration consequences can be quite significant and can include the loss of critical employees or lead to employer sanctions if employees are employed without valid work authorization.

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

TABLE OF CONTENTS

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

FINANCIAL INSTITUTIONS ADVISORY & FINANCIAL REGULATORY GROUP WEEKLY NEWSLETTER DECEMBER 6, 2017 Financial Regulatory Developments Focus In this week’s newsletter, we provide a snapshot of the principal US, European and global financial regulatory developments of interest to banks, investment firms, broker-dealers, market infrastructure providers, asset managers and corporates. Click here if you wish to access our Financial Regulatory Developments website.

American business experienced a near record number of mergers and acquisitions in 2016, and this trend is likely to continue in 2017. Such corporate transactions raise a number of legal issues, including employment issues.

A Mississippi Bankruptcy Court recently addressed several employer defenses to liability under the Worker Adjustment and Retraining Notification Act (“WARN Act”), which is noteworthy in the context of the current economy. In re FF Acquisition Corp. d/b/a Flexible Flyer, 423 B.R. 502 (Bankr. N.D. Miss. January 20, 2010).

Despite the increasing prominence of pre-packaged or pre-negotiated chapter 11 cases in recent years, not every bankruptcy filing by or against a company is a carefully planned event orchestrated over a period of months or even years to achieve a workable reorganization, sale, or liquidation strategy. Sometimes, unanticipated circumstances precipitate a bankruptcy filing.

The U.S. Department of Labor’s Employee Benefits Security Administration announced a proposed rule that would expand its Abandoned Plan Program to include individual account plans, including 401(k) plans, of companies in Chapter 7 bankruptcy (a “Chapter 7 Plan”). Under the current rule, only large financial institutions and other asset custodians can serve as administrators of abandoned plans, and a plan is considered abandoned only after no contributions or distributions have been made for at least 12 months.

The Department of Labor’s Employee Benefits Security Administration (EBSA) is proposing to allow bankruptcy trustees to take advantage of the agency’s Abandoned Plan Program regulations under ERISA to terminate, wind up, and distribute retirement plan benefits to former employees of bankrupt companies.