Olshan’s multidisciplinary Cross-Border Litigation Group assists U.S. companies doing business overseas and foreign-based companies and individuals regarding commercial activities that trigger U.S. regulatory and compliance issues and litigation.
The challenges in navigating the legal landscape are magnified when cross-border issues arise. Experienced in an expansive range of international legal matters, Olshan’s Cross-Border Practice lawyers steer clients through complex legal and regulatory requirements.
Our team advises and defends international and U.S. companies, organizations, and individuals in sensitive government investigations, regulatory enforcement actions, and both civil and criminal litigation. We assist clients in responding to counterparties’ due diligence inquiries in sophisticated commercial transactions and design and advise on implementation of compliance programs.
Through our Globalaw and LAWorld memberships and the Brazil/American Chamber of Commerce, we have built a network of experienced off-shore counsel to help us meet the needs of our clients worldwide.
Litigation and Asset Recovery
We regularly handle cross-border litigation, arbitrations and asset recovery, which includes having final foreign judgments entered in U.S. courts and tracing and recovering misappropriated and/or missing assets to satisfy the ultimate U.S. judgments. Our lawyers also regularly represent foreign whistleblowers in U.S. regulatory actions involving global companies where activities abroad result in U.S. regulatory scrutiny.
Members of our White Collar Defense and Securities Litigation & Enforcement Practice Groups have routinely defended companies and individuals in prosecutions and civil enforcement matters brought under the Foreign Corrupt Practice Act (FCPA), securities laws, and the Commodity Exchange Act and by the Treasury’s Office of Foreign Assets Control (OFAC). Our cross-border litigation attorneys, in collaboration with Olshan’s Shareholder Activism Practice, provide support to counsel in foreign jurisdictions in off-shore proceedings that relate to U.S. listed securities regarding the U.S. securities laws, corporate governance and privilege issues.
U.S. Discovery in Support of Foreign Proceedings
U.S. law 28 U.S.C. § 1782 (known as “Section 1782”) allows an “interested party” to a foreign proceeding (including foreign civil and criminal proceedings) to seek U.S.-style discovery from a person or entity located in the United States. Such discovery – for documents, deposition testimony and responses to written interrogatories – is often not available in the foreign jurisdiction and may be used in foreign actions that are either pending or contemplated. Olshan’s Cross-Border team has significant experience in utilizing Section 1782 cases to obtain critical evidence in the U.S. for use in foreign litigation. The evidence we have been able to gather for clients through Section 1782 often has proved critical to our clients, enabling them to build winning appraisal and corporate governance cases.
Regulatory Compliance
Olshan’s cross-border practice encompasses counseling multinational client companies on regulatory issues, conducting internal reviews and audits of compliance procedures, and designing and helping clients implement state-of-the-art compliance programs for operations spanning multiple continents.
We represent clients on transactions in the United States that trigger concerns and require approvals by the CFIUS (Committee on Foreign Investment in the United States). Our regulatory compliance attorneys help companies both address trade and export risks and defend individuals and companies in Office of Foreign Assets Control (OFAC) and Foreign Corrupt Practices Act (FCPA) cases. For example, we represented a U.S. biotech company in an internal review concerning possible shipments to embargoed and restricted countries and in assessing its compliance program. We also assisted a company based in China in successfully navigating CFIUS review and in securing approval of the purchase and sale of a U.S. company to a foreign purchaser.
- Court Orders Production of Documents for Use in Cayman Islands Appraisal Proceeding
Successfully represented Kingstown Partners Master Ltd. (Kingstown) in an §1782 application to the Southern District of New York seeking discovery from multiple corporate respondents to support a Cayman Islands appraisal proceeding in connection with a $2.7 billion merger. Kingstown and other dissenting shareholders alleged multiple conflicts of interest. In re Kingstown Partners Master Ltd., No. 21-MC-691-LTS (S.D.N.Y. April 8, 2022). The court (Hon. L. Swain) rejected the respondents arguments that Kingstown was seeking to circumvent foreign restrictions on evidence and that the discovery requests were unduly broad and irrelevant to the fair value determination and found in our client’s favor, granting all written discovery Kingston sought. -
Olshan Helps IsZo Capital Score Activist Litigation Victory in British Virgin Islands
On March 5, 2021, Olshan client IsZo Capital prevailed in its lawsuit against NYSE-listed Nam Tai Property Inc. and an affiliate of Nam Tai’s de facto controlling stockholder, Kaisa Group Holdings Limited in an action before the Eastern Caribbean Supreme Court, which was affirmed by the Eastern Caribbean Court of Appeal on October 4, 2021. The court ruled in IsZo’s favor and voided a $170 million private placement executed by Nam Tai that distributed more than 16 million shares to the Kaisa affiliate and a third party. The court found that that execution of the private placement was a breach of Nam Tai’s directors’ fiduciary duties and was undertaken to secure Kaisa’s control of the company in response to a requisition from approximately 40% of the outstanding shares to convene a meeting of Nam Tai shareholders to remove and replace the Kaisa-affiliated directors from the board. Olshan’s litigation team led by Lori Marks-Esterman and Adrienne Ward used Section 1782 to gather evidence from Nam Tai’s financial adviser, PR firm, and the sole U.S.-based director, which the U.K- and British Virgin Islands-based trial team used to demonstrate that Nam Tai’s proffered reason for the private placement was not true. Activist partner Ryan Nebel provided support throughout the trial and on appeal on corporate governance issues. The case culminated in what various media called “an epic” victory. Read the full opinion here. -
Olshan Achieves Favorable Arbitration Settlement for Firm Client in International M&A Dispute
In March 2021, Olshan successfully resolved a proceeding brought before the Singapore International Arbitration Center applying New York law to a dispute with a publicly traded company’s failure to pay the final installment of a $70 million M&A contract for the purchase of a private business. The defaulting company sought to delay payment citing preservation of liquidity arising from the COVID pandemic. The proceeding settled after Olshan filed its claim, selected an arbitrator, and retained a leading expert on New York law. The settlement agreement provides payment to the client of all delinquent M&A payments, damages and reimbursement of all legal expenses, which in total exceeded the maximum legal damages it would have been entitled to had it prevailed in the arbitration. Litigation partner Kyle Bisceglie worked with Globalaw Singapore member firm, Shay & Partners. -
Critical Evidence Obtained through Section 1782 Helps Dissenters Secure Victory in Cayman Islands Appraisal Action
On March 18, 2020, the Grand Court of the Cayman Islands released one of the most significant decisions on fair value appraisal in the jurisdiction, finding that the fair value of dissenting shareholders’ shares of Nord Anglia Education, Inc., exceeded the price offered in a merger transaction. Olshan obtained Section 1782 discovery from several financial institutions, including Nord Anglia’s U.S.-based investment bank. In reaching its decision, the Grand Court expressly referenced the 2,900 documents produced by the investment bank and wrote that such documents “were obviously relevant to advancing a reasoned critique” of the bank’s discounted cash flow analysis. Lori Marks-Esterman led the litigation team. Read the full opinion here.
