July 6th will mark the entry into force of Section 301 tariffs against China. Section 301 of the Trade Act of 1974 provides the president with the authority to respond to unfair, unreasonable, or discriminatory trade practices and gives the Office of the U.S. Trade Representative (USTR) the ability to take action to compel another country to eliminate the offending act, policy, or practice, with the president’s approval. Surprising no one, this president concluded that the United States is being taken advantage of in the global trade regime. What followed was a decision to impose tariffs on China and most of our other largest trading partners.
Continue Reading A Scorching Summer for Global Trade (and a few words on the Global Game)
Significant CFIUS and Export Control Reforms Target Foreign Direct Investment and Structuring of Public and Private Equity Deals
In June, the White House released a report outlining the threats posed by China’s investment in and acquisition of U.S. companies. Spoiler alert: The report noted that China is engaged in “state-sponsored IP theft through physical theft, cyber-enabled espionage and theft, evasion of U.S. export control laws, and counterfeiting and piracy.” Apparently, someone recognized that those $1 million to $5 million-dollar companies in Silicon Valley may be getting capital injections from folks who are not in it simply for the investment return. Worse still, until now, the United States has had no mechanism to review or prevent such foreign investment and resultant control.
Continue Reading Significant CFIUS and Export Control Reforms Target Foreign Direct Investment and Structuring of Public and Private Equity Deals
Send Lawyers, Guns and Money: The New Conventional Arms Transfer Policy
Years ago I witnessed the owner of a Staten Island car dealership talking to his sales staff about their end-of-model-year sale. The dealership owner flogged and lashed about incentives, rebates and financing, but the message was singular: We’re here to deal! I was reminded of this on April 19, 2018, when our current President issued National Security Presidential Memorandum No. NSPM-10 (the Memorandum) outlining the new Conventional Arms Transfer (CAT) Policy. While it’s incongruous to equate the sale of the F-35 Joint Strike Fighter with a Nissan, the new CAT policy is clear: We’re here to deal!
Continue Reading Send Lawyers, Guns and Money: The New Conventional Arms Transfer Policy
Deconstructing Those Russia Sanctions – Metropolitan Corporate Counsel
On August 2, President Trump signed into law the Countering America’s Adversaries Through Sanctions Act (CAATS). What is the significance of the law?
Zlatko Hadzismajlovic: Many things stand out, but here are three that are foremost. First is the sheer number of members of Congress, on both sides of the aisle, who supported the legislation.
Buy and Hire American, to the Extent Possible – Federal Publications Seminars
On April 18, 2017, at the headquarters of Snap-On Incorporated, a Wisconsin-based manufacturer, Donald J. Trump signed an Executive Order titled “Buy American, Hire American”. The Hire American portion, explained in all of two paragraphs in Section 5, requires the Attorney General and Secretaries of State, Labor, and Homeland Security to “consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system”. The second paragraph is a bit more specific inasmuch as it states that these folks ought to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” Among those in attendance were likely Snap-On’s H-1B employees, since the company is a perennial petitioner for H-1B workers at its Kenosha, Wisconsin location.[1]
Continue Reading Buy and Hire American, to the Extent Possible – Federal Publications Seminars
Apocalypse Soon? Permanent Disqualification From Department of Defense Contracts May Result From Voluntary Disclosures of Export Violations
Etymology, particularly the Greek or Latin roots of words, aids our understanding in much the same way as root cause analysis does. The Greek word for disclosure is αποκάλυψη, transliterated to apokálypsi, or “apocalypse.” Nomen est omen. This came to mind while reading the pronouncements proffered by various agencies this year – each of which influences voluntary disclosures of export control violations.
Continue Reading Apocalypse Soon? Permanent Disqualification From Department of Defense Contracts May Result From Voluntary Disclosures of Export Violations
U.S. Government Open Source Software: OMB’s Memorandum on Federal Source Code Policy Exposes IP Ownership Risk
On August 8, 2016, the U.S. Office of Management and Budget (“OMB”) promulgated an Open Source Software (“OSS”) policy via the Memorandum for the Heads of Departments and Agencies, M-16-21 (“Memorandum” or “M-16-21”). The high-level purposes of the Memorandum are to promote reuse of federal contractor and employee custom-developed code, and to improve the quality of such software through public participation. To these ends, the Memorandum has two major directives: (1) all custom-developed code must be broadly available for reuse across the federal government subject to limited exceptions (e.g., for national security and defense) and (2) under a three-year pilot program, federal agencies are required to release at least 20% of their custom-developed code to the public as OSS. The intent here is to enable continual quality improvements to the code as a result of broader public community efforts. As discussed below, the requirement to release custom-developed code as OSS may effectively reduce the creator’s ownership rights, and have economic impacts on both the value of ownership and pricing when bidding on government contracts.
Continue Reading U.S. Government Open Source Software: OMB’s Memorandum on Federal Source Code Policy Exposes IP Ownership Risk
Federal Contractors and Subcontractors Subject to yet More Mandatory Disclosure Requirements
New FAR Rules and U.S. Department of Labor Guidance Implement the Long-Anticipated (and Much-Dreaded) Fair Pay and Safe Workplaces Executive Order
Burdensome disclosure obligations, pay transparency, and other affirmative requirements as a condition of doing business with the federal government continue. Sound familiar? The trend continues with new Federal Acquisition Regulation (“FAR”) rules and accompanying U.S. Department of Labor (“DOL”) guidance issued on August 25, 2016, implementing the Fair Pay and Safe Workplaces Executive Order. In a nutshell – boiling down over 800 pages of rulemaking materials – the rules will soon require:Continue Reading Federal Contractors and Subcontractors Subject to yet More Mandatory Disclosure Requirements