Paper Format: Number of pages: Type of work: Type of paper: Sources needed APA 10 Double spaced Writing from scratch Case study No specific sources required Subject Law Topic Letter of Advice
Academic Level: Bachelor
DOING BUSINESS IN THE U.S.
Each student will write a letter of advice to his/her U.S. client describing the issues raised by the case study. Each student will also suggest approaches that may help resolve each issue for the client, as well as the risks of each approach.
The letter should explain the legal structure of the proposed business transaction. For example, you should include a discussion of whether the deal should be structured as a joint venture, an acquisition or merger, a licensing arrangement and/or a distributorship.
You should also include all important non-structural issues raised by the case study. For example, you might want to discuss how the facts of the case study raise specific antitrust, regulatory, environmental, labor, employment, export-import, commercial, anti-bribery, or other legal issues.
The legal issues that you include in the paper should be specific to the facts of the case study, not general legal issues. For example, you would not phrase an issue like this: “The case study raises an antitrust issue.” You should instead phrase the issue more specifically, such as: “Whether Mr. Smith’s conduct in meeting with his competitor violates Section 1 of the Sherman Act.”
You should not provide a complete recitation of the facts. You can presume that your client already knows the facts. You should, however, refer to relevant facts that explain how the issue relates to your client. For example, if the issue you are addressing is whether Mr. Smith’s conduct violates Section 1 of the Sherman Act, you should recite the facts that a lawyer was present at the meeting between Mr. Smith and his competitor and that the two businessmen did not discuss business matters. These facts are relevant since it would have to be shown that there was an agreement to engage in anti-competitive conduct in order to prove a violation of Section 1 of the Sherman Act. However, you should not recite the fact that Mr. Smith was born in Ohio in a working class neighborhood. His birthplace and social status are not relevant to the antitrust issue you are addressing. Therefore, you might write about the antitrust issue as follows:
“Issue: Whether Mr. Smith’s conduct at a meeting with his principal competitor on January 5, 2013 violated Section 1 of the Sherman Act.
“Conclusion: Mr. Smith’s conduct did not violate Section 1 of the Sherman Act because the parties never entered into a contract, combination, conspiracy or restraint of trade.
“Law: Section 1 of the Sherman Act provides in pertinent part that:
“Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.”
“Analysis: Mr. Smith met with the CEO of his principal competitor at a dinner on January 5, 2014, sponsored by the American Medical Association. A lawyer for Mr. Smith’s company was seated next to Mr. Smith at the dinner and could overhear everything Mr. Smith said during the evening. The competitor’s CEO was seated at 20 feet away at the other end of the table and could not communicate with Mr. Smith without yelling. The lawyer observed that Mr. Smith had no conversation with the competitor’s CEO either before or after the dinner. Since there was never an opportunity for the two competitors to communicate during the dinner without everyone at the table overhearing the conversation, there was no possibility that they entered into any contract or other arrangement in restraint of U.S. or foreign commerce such as would violate Section 1 of the Sherman Act.
“Advice: Mr. Smith has received a letter from the U.S. Department of Justice indicating that they are investigating anti-competitive conduct surrounding the January 5th dinner. I suggest that I arrange a meeting with the Justice Department official in charge of the investigation to present the facts and try to persuade him that an additional investigation is unnecessary.”
This example is an abbreviation of the discussion. Your discussion of the issue may be longer and might include court decisions, regulations, legislative history or other sources of law to support your analysis and conclusion.
Robo Joint Corporation Case Study
1. Robo Joint Corporation – Ohio/NYSE Company. Robo Joint Corporation, Inc. (Robo Joint) is a company incorporated and headquartered in Ohio and registered to do business in most of the states of the United States of America. It is listed on the New York Stock Exchange and is widely held by individual and institutional investors. Its latest financial statements are attached.
2. Robo Joint’s Business.
a. Robo Joint is engaged in the manufacture of artificial human joints in seven states and sells those artificial human joints throughout the USA. Robo Joint is the largest provider of these artificial human joints in the USA and has 35% of the market for artificial human joints in the USA.
b. Robo Joint has long-term contracts with many of the major hospitals and orthopedic surgery clinics in the USA that have very favorable prices and sales terms for Robo Joint. These contracts have a provision in them that allows the hospitals and clinics to terminate the contract in the event that Robo Joint assigns or attempts to assign the contact.
c. Robo Joint is, however, one of the minor players in the area of artificial human hip joints.
d. 60% of Robo Joint’s workforce are members of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steelworkers or USW) (the “Union”), and have traditionally opposed new ventures outside the U.S. or with foreign companies because they have assumed U.S. jobs will be lost to non-U.S. workers. Robo Joint has a collective bargaining agreement with the Union that requires that no employee be required to travel or work outside the U.S. It also requires arbitration of all disputes under the contract.
e. Robo Joint has invested heavily in technology and has an extensive research and development department. Robo Joint owns numerous patents and patent applications on various aspects of artificial human joint materials in the US and Europe. Robo Joint has not licensed its technology to anyone outside of the USA because of its belief that the U.S. Government would be concerned that some of the technology could be converted to military use by unfriendly nations. Robo Joint also maintains much of its technology as a trade secret which it has licensed to no one.
3. Robo Joint Officers and Directors.
a. The Chief Executive Officer (CEO) of Robo Joint is Stanley Framer, better known in the industry as “Bone Head,” a title he acquired by his stubbornness in business dealings. His lack of respect for traditional means of doing business have kept attorneys for Robo Joint very busy.
b. His directives have also concerned Robo Joint’s Chief Financial Officer (CFO) Minnie Cash, a timid woman who tends to withhold her opinions.
c. The Robo Joint’s Board of Directors has nine members, including:
· Stanley Framer, his sister and brother-in-law
· Jim Acre, the CEO of a real estate company that leases space to Robo Joint for its world headquarters
· Two childhood friends of Bone Head, one of whom has a consulting contract with Robo Joint for occasional marketing assignments and
· Three CEO’s from unrelated companies.
d. Bone Head is Chairman of the Board and Chairman of the Board’s Executive Committee which also includes his sister and brother-in-law. The Board also has an Audit Committee whose members include Jim Acre and Bone Head’s two childhood friends, none of whom is a CPA or financial expert.
4. China Joint Replacement Clinic Limited’s Business and President.
a. China Joint Replacement Clinic Limited (China Joint) is the largest operator of clinics in China for artificial human joint replacements and the largest developer of artificial hip joints and of robotic techniques for replacing hip joints in China. In fact, China Joint has the most advanced technology for artificial human hips in the world.
b. Over 60% of the robot control software used in artificial human joint replacement surgery in China and India is done with the use of China Joint’s software and robotics techniques. China Joint has not yet entered the US or European markets, but has an interest in doing so.
c. China Joint’s financial statements are attached. They have already been translated from RMBs into U.S. dollars in accordance with U.S. Generally Accepted Accounting Principles (GAAP).
d. China Joint’s President, Yang Fa Ye, is a former General in the People’s Liberation Army of China. While a General, she was responsible for the army’s research on using military robots. Yang Fa Ye has a reputation of being very careful and not making decision quickly. She also believes that China Joint needs to expand its operations into Europe and United States. She knows that the US Government is concerned about foreign ownership of US technology. However, she would like to gain access to US and European markets by acquiring or teaming with companies who have a strong position in those markets. She also believes that China Joint needs to establish a research center in the USA to keep its position as the leading manufacturer of artificial hip joints.
e. Yang Fa Ye is also the sister of the First Assistant to the Chairman of the National Committee of the Chinese People’s Political Consultative Conference.
5. The Proposed Transaction.
a. Stanley Framer has developed the idea of joining with China Joint in some manner for Robo Joint to develop further the US market nationally for China Joint’s advanced artificial hips and robotic operating techniques.
b. He also sees the transaction as a solution to Robo Joint’s desire to expand its customer base and increase its revenues.
c. Bone Head believes he can entice Yang Fa Ye to enter into a business transaction with Robo Joint by offering China Joint with an entrance into the US market for its products, technology and software.
d. Concerned with mounting debt on Robo Joint’s balance sheet, Bone Head advises his CFO, Minnie Cash, that he wants Minnie Cash to set up an offshore entity, headed by Bone Head’s brother-in-law, to act as the holding company for the technology or assets that China Joint would contribute to the potential transaction with Robo Joint. In that manner, he believes, those assets could be used to secure a loan and that this loan would not appear on Robo Joint’s balance sheet.
e. If he can persuade China Joint to enter into such a transaction, Bone Head believes Robo Joint, through this operation, will become the largest distributor of artificial human joints, including artificial hip joints, in the U.S. Bone Head is convinced that a public announcement of the Robo Joint/China Joint transaction will cause the price of Robo Joint shares to rise significantly. He therefore phones his stockbroker and directs that as soon as Bone Head notifies the broker that Robo Joint has entered into a binding letter of intent with China Joint, the broker is to buy 500,000 shares of Robo Joint on the open market.
f. Bone Head also has an idea about expanding Robo Joint’s operations internationally. He would like to market and sell Robo Joint’s artificial human joints in China and India. He hopes that China Joint’s connections would be able to open doors for Robo Joint in this regard in China and India.
g. Further in the back of his mind, Bone Head wonders if Robo Joint or its soon-to-be-formed offshore company can obtain favorable loans from Chinese banks or financial institutions to finance international business expansion. He believes that Yang Fa Ye’s government contacts might be helpful in this regard.
6. Dinner and Advice.
a. You are in your law office in Cleveland when you receive a call from Stanley Framer, stating that he would like you to represent Robo Joint in his efforts to structure and enter into a business deal with China Joint. Bone Head says he would like to fly to Cleveland soon to have dinner with you to discuss the alternatives available to Robo Joint. He says he is a little confused whether he should form a joint venture, partnership or simply team with China Joint in some manner or whether he should consider being acquired by or merging with China Joint. On all of this, he would like your advice.
b. Following Bone Head’s call, you receive a call from Minnie Cash, Robo Joint’s CFO. Minnie Cash states that she has heard you have been retained by Robo Joint on the China Joint project. Minnie expresses concern about Bone Head’s directive that Minnie Cash set up an offshore affiliate for possible use in this project and would like your advice as to how to proceed. Minnie ends the call by asking you not to tell Bone Head that Minnie placed the call to you.
c. You decide that it would be a good idea to prepare a letter to Bone Head that will explain the legal options available for a transaction involving Robo Joint and China Joint and that will also identify and explain some the major legal issues and concerns that you have. You intend to provide this letter to Bone Head at the end of your dinner with him. Get ready for your dinner with Bone Head and GOOD LUCK.
******[Docements to be Separately Provided]********
Financial Statements of
Robo Joint Corporation And China Joint Replacement Clinic Limited
Preferred language style US English