Funds Investing in U.S. Manufacturing Companies: Foreign Investor Considerations

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Operators of manufacturing companies, especially those considering a sale or capital raise, should understand investors’ concerns regarding direct investment. Today, investment funds with investors and investments in multiple jurisdictions constitute a large part of the U.S. manufacturing direct investment landscape. However, tax challenges exist for these fund managers and investors.

The tax treatment of foreign investors depends largely on the type of income generated by a fund. For example, assume that an investment fund is structured as a domestic limited partnership, with both U.S. and foreign investors. Further, assume that the fund acquires a U.S.-based manufacturing company, which is also structured as a domestic limited partnership. Unless structured properly, the foreign investors will have to file U.S. income tax returns and pay U.S. income tax on their share of the income from the manufacturing operations. This structure poses little concern for those American investors, but it is quite troublesome for foreign investors. Continue reading this entry

Bring Your Own Device Doesn't Mean Bring in Security Breach

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Bring-Your-Own-Device (“BYOD”) policies have been picking up steam because of increased productivity, improved communications, and the need for employees to work remotely. However, when implementing any BYOD policy there are many pitfalls that accompany these benefits. In some cases, corporations, including manufacturers, overlook risks associated with their current (or lack of) BYOD policies. Here are a few best practices that can minimize some of the risks associated with BYOD policies. Continue reading this entry

Argentina: Favorable Venue for Manufacturers Licensing Their Technology/Intellectual Property Rights

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Argentina, together with Brazil and Mexico, are Latin America’s three largest economies representing more than 80 percent of the region’s manufacturing output. In addition, Argentina has proven to be a favorable venue for foreign companies seeking to license their technology or intellectual property rights (IPRs).

What makes Argentina attractive for licensing and IPR? Continue reading this entry

Decaying National Infrastructure Is Challenging the Resurgence of American Manufacturing

Public-Private Manufacturing Innovation Institutes Announced

At a recent manufacturing summit hosted in Washington, D.C. by the National Association of Manufacturers (NAM), Vice President Biden effectively made the case for linking manufacturing and infrastructure development as inextricably linked e-components of a growing economy. The nation’s lawmakers often cite manufacturing as a sure-fire way to place the U.S. on the road toward economic prominence once again. They also promote the need for a national effort to improve an aging infrastructure that once contributed to an economic boom in post-war America. However, too often manufacturing and infrastructure are not discussed in tandem. During its summit, the NAM demonstrated foresight and leadership in stressing the link between the two.

A 2012 Global Competiveness Report by the World Economic Forum ranked the U.S. as 14th in infrastructure behind countries like France, Korea, Spain and Canada. Such a ranking may not be good enough to entice manufacturers that are looking for every advantage in an increasingly competitive world market. Continue reading this entry

Protection Against Foreign Anticompetitive Practices Affecting U.S. Activities

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Antitrust laws, like the Sherman Act, protect American markets from anticompetitive practices. But, under the Foreign Trade Antitrust Improvements Act (FTAIA), American antitrust laws only reach foreign conduct in specific circumstances. For example, an anticompetitive act committed abroad must, among other things, “directly” affect U.S. domestic, import, or certain export activities and the effect must give rise to a Sherman Act claim before U.S. courts may address it. An in-depth look at the cases discussed below can be found in Foley’s Antitrust newsletter but a quick overview is provided in this blog.

Two federal appellate courts recently addressed what it means to “directly” affect U.S. activities and give rise to a Sherman Act claim in the framework of a global supply chain. In one case before the Seventh Circuit, a manufacturer alleged that a foreign cartel fixed the price of a certain component part. Such a practice typically gives rise to a federal antitrust claim. But in this case, the alleged price fixers were not selling the products in the U.S. or to a U.S. company. Instead, the alleged price fixers sold the components abroad to foreign subsidiaries of a U.S. company. The subsidiaries incorporated the component into the end product while manufacturing abroad. Then, the subsidiaries imported many of the end products for sale in the states. The court decided that the injuries suffered by the manufacturer were too indirect to support a claim under the Sherman Act. This ruling suggests that an injury at one level in the foreign supply chain does not create a “direct” effect in U.S. activity. Continue reading this entry