Seyfarth Shaw LLP announced the arrival of a group of four partners to the firm’s Litigation department in Boston. Partners William Berkowitz, John Skelton, James McGrath and Brandon Bigelow have joined from Bingham McCutchen LLP, where Berkowitz and McGrath served as co-chairs of Bingham’s Distribution and Franchise practice group. Berkowitz also previously served as co-chair of Bingham’s global Antitrust and Trade Regulation practice group.
With nearly 90 years of combined litigation experience, the group focuses on representing manufacturers and franchisors in disputes with their dealers and franchisees, as well as counseling clients on antitrust compliance issues and antitrust aspects of mergers and acquisitions. Representing clients from a variety of industries, including manufacturing, real estate and retail, the group has significant experience counseling U.S. and foreign automotive manufacturers.
“We are delighted to have this exceptional group of commercial litigators join us. In addition to adding depth to our commercial litigation bench locally and nationally, they will greatly expand our distribution, franchise and antitrust capabilities,” said Katherine Perrelli, chair of Seyfarth’s Litigation department. “Their practices align very well with our Litigation department’s national footprint and we see many opportunities to grow client relationships across our platform.”
“Beyond enhancing our litigation platform, this group also shares our passion for innovation and analytics,” said Russell B. Swapp, managing partner of Seyfarth’s Boston office. “We believe our SeyfarthLean service delivery model is unparalleled in the market and will immediately deliver an enhanced value proposition for their clients.”
“It’s exciting to welcome a group of trial lawyers who are so well-respected and well-recognized in Boston, and nationally, for their work counseling and litigating matters at the state and federal levels,” said Ariel Cudkowicz, associate managing partner of Seyfarth’s Boston office.
“In addition to its outstanding talent pool, Seyfarth has developed a highly innovative, market-leading platform for the efficient delivery of legal services,” said Bill Berkowitz. “The firm is way ahead of the curve technologically, and our clients will reap both immediate and long-term benefits from that.”
The group is joined by three additional lawyers from Bingham: associates Caleb Schillinger and Katherine Moskop in Boston and staff attorney Ardrelle Bahar, who joins Seyfarth’s Washington, D.C. office.
About the New Partners
William Berkowitz focuses his practice on antitrust, franchise, distribution, mergers and acquisitions, and other commercial litigation. He has tried cases before state and federal courts and administrative agencies in Massachusetts, New York, New Hampshire, Connecticut, New Jersey, Pennsylvania and Maryland.
Beyond litigation, Berkowitz regularly consults with clients on compliance with federal and state antitrust laws, state franchise laws, the Hart-Scott-Rodino Act and foreign premerger notification laws. Berkowitz is described by Chambers USA as an “excellent lawyer and litigator” in antitrust, “in whom clients have a great deal of confidence,” and is listed in Best Lawyers in America (Franchise), “Super Lawyers” (Antitrust), and Benchmark Litigation (Massachusetts “Star”). He earned his B.S., cum laude, from the University of Pennsylvania, Wharton School of Business, and his J.D., cum laude, from the University of Michigan Law School.
John Skelton is an experienced trial lawyer having tried cases and appeared before a variety of state and federal courts and administrative agencies. In addition to a diverse commercial litigation and trial practice, Skelton has successfully defended numerous manufacturers and franchise clients in a variety of matters, including terminations, challenges to the establishment and relocation of dealerships and other outlets, and the enforcement of operating standards.
Skelton’s practice includes complex commercial and contract disputes; franchisor-franchisee relationships; structuring dealer networks; distribution and trade regulation issues; creditor rights and bankruptcy litigation and complex product liability cases. Selected as the “Lawyer of the Year” for Franchise Law in Boston for 2014, Skelton has been named a Best Lawyer in America in Franchise Law for 2013-2015 and listed in “Super Lawyers” for Litigation. He earned his B.A., cum laude, from Saint Anslem College, followed by work as police officer and training coordinator for the Massachusetts Criminal Justice Training Counsel. Skelton then earned his J.D., summa cum laude, from Western New England College, School of Law and served as law clerk to Associate Justice Neil L. Lynch of the Massachusetts Supreme Judicial Court.
James McGrath focuses his practice on litigation and counseling related to complex commercial litigation, antitrust and trade regulation issues, and franchise and distribution matters. He is an experienced trial lawyer, having tried cases, argued appeals and appeared before a variety of state and federal courts and administrative agencies across the country.
In the franchise and distribution area, McGrath represents numerous manufacturers, distributors and trade organizations on a wide variety of matters, many involving the transportation industry. He also advises clients on various legislative issues affecting the motor vehicle industry. McGrath has been named a Best Lawyer in America in the area of Franchise Law and was selected as the “Lawyer of the Year” for Franchise Law in Boston for 2015. McGrath is also a member of the Greater Boston Board of Directors of the American Heart Association and American Stroke Association. McGrath earned his B.A. from the University of Wisconsin-Madison and his J.D., summa cum laude, from Boston College Law School.
Brandon Bigelow represents clients in complex commercial matters, including franchise disputes, software piracy claims, and antitrust and consumer class action litigation. He has appeared before state and federal courts on behalf of clients in a variety of industries, including software designers, motor vehicle and medical device manufacturers, hedge funds, broker-dealers, and pharmaceutical companies. He also counsels clients on compliance issues involving state and federal competition laws, including regulatory review of merger and acquisition transactions under the Hart-Scott-Rodino Act.
Bigelow also teaches as an adjunct professor of law at Boston College Law School. He is a vice chair of the Insurance and Financial Services Committee of the ABA Section of Antitrust Law and a past co-chair of the Class Action Committee of the Boston Bar Association. He earned his B.A., cum laude, from Cornell University, followed by service as a surface warfare officer in the U.S. Navy. He then received his J.D., magna cum laude, from Boston College Law School and clerked for the Hon. Martha B. Sosman, Associate Justice of the Supreme Judicial Court of Massachusetts.
Bringing finance into the 21st Century – How COVID and collaboration are catalysing digital transformation
By Keith Phillips, CEO of TISATech
If just six or seven months ago someone had told you that in a matter of weeks people around the world would be locked down in their homes, trying to navigate modern work systems from a prehistoric laptop, bickering with family over who’s hogging the Wi-Fi, migrating online to manage all financial services digitally, all while washing their hands every five minutes in fear of a global pandemic… You’d think they had lost their mind. But this very quickly became the reality for huge swathes of the world and we’re about to go through that all over again as the UK government has asked that those who can work from home should.
Unsurprisingly, statistics show that lockdown restrictions introduced by the UK government in March, led to a sharp increase in people adopting digital services. Banks encouraged its customers to log onto online banking, as they limited (and eventually halted) services at branches. This forced many customers online as their primary means of managing personal finances for the first time.
If anyone had doubts before, the Covid-19 pandemic proved to us the importance of well-functioning, effective digital financial services platforms, for both financial institutions and the people using them.
But with this sudden mass online migration, it’s become clear that traditional banks have struggled to keep up with servicing clients virtually. Legacy banking systems have always stilted the digitisation of financial services, but the pandemic thrust this issue into the limelight. Fintech firms, which focus intently on digital and mobile services, knew it was only a matter of time before financial institutions’ reliance was to increase at an unprecedented rate.
For years, fintechs have been called upon by traditional players to find solutions to problems borne from those clunky legacy systems, like manual completion of account changes and money transfers. Now it is the demand for these services to be online coupled with the need for financial services firms to cut costs, since Covid-19 hit the economy.
Covid-19 has catalysed the urgent need to bring digital transformation to a wider pool of financial services businesses. Customers now have even higher expectations of larger institutions, demanding that they keep up with what the younger and more nimble challengers have to offer. Industry leaders realise that they must transform their businesses as soon as possible, by streamlining and digitising operations to compete and, ultimately, improve services for their customers.
The race for digital acceleration began far before the recent pandemic – in fact, following the 2008 financial crisis is likely more accurate. Since the credit crunch, there has been a wave of new fintech firms, full of young, bright techies looking to be the next big thing. Fintechs have marketed themselves hard at big conferences and expos or by hosting ‘hackathons’, trying to prove themselves as the fastest, most innovative or the most vital to the future of the industry.
However, even during this period where accelerating innovation in online financial services and legacy systems is crucial, the conditions brought about by the pandemic have not been conducive to this much-needed transformation.
The second issue, which again was clear far before the pandemic, is that fact that no matter how nimble or clever the fintechs’ solutions are, it is still hard to implement the solutions seamlessly, as the sector is highly fragmented with banks using extremely outdated systems populated with vast amounts of data.
With the significance of the pandemic becoming more and more clear, and the need for better digital products and services becoming more crucial to financial services firms and consumers by the day, the industry has finally come together to provide a solution.
The TISAtech project was launched last month by The Investing and Saving Alliance (TISA), a membership organisation in the UK with more than 200 leading financial institutions as members. TISA asked The Disruption House, a specialist benchmarking and data analytics business, to create a clearing house platform for the industry to help it more effectively integrate new financial technology. The project aims to enhance products and services while reducing friction and ultimately lowering costs which are passed on to the customers.
With nearly 4,000 fintechs from around the world participating, it will be the world’s largest marketplace dedicated to Open Finance, Savings, and Investment.
Not only will it provide a ‘matchmaking’ service between financial institutions an fintechs, it will also host a sandbox environment. Financial institutions can pose real problems with real data and the fintechs are given the space to race to the bottom – to find the most constructive, cost-effective solution.
Yes, there are other marketplaces, but they all seem to struggle to achieve a return on investment. There is a genuine need for the ‘Trivago’ of financial technology – a one stop shop, run by an independent body, which can do more than just matchmaking. It needs to go above and beyond to encompass the sandboxing, assessments, profiling of fintechs to separate the wheat from the chaff, and provide a space for true collaboration.
The pandemic has taught us that we are more effective if we work together. We need mass support and collaboration to find solutions to problems. Businesses and industries are no different. If fintechs and financial institutions can work together, there is a real chance that we can start to lessen the economic hit for many businesses and consumers by lowering costs and streamlining better services and products. And even if it is just making it that little bit easier to manage personal finances from home when fighting with your children for the Wi-Fi, we are making a difference.
What to Know Before You Expand Across Borders
By Sean King, Director of International Tax at McGuire Sponsel
The American retail giant, Target Corporation, has a market cap of $64 billion and access to seemingly limitless resources and advisors. So, when the company engaged in its first global expansion, how could anything possibly go wrong?
Less than two years after opening its first Canadian store in 2013, Target shut down all133 Canadian locations and terminated more than 17,000 Canadian employees.
Expansion of an operation to another country can create unique challenges that may impact the financial viability of the entire enterprise. If Target Corporation can colossally fail in its expansion to Canada, how might Mom ‘N’ Pop LLC fare when expanding into Switzerland, Singapore, or Australia?
Successful global expansion requires an understanding of multilayered taxes, regulatory hurdles, employment laws, and cultural nuances. Fortunately, with the right guidance, global expansion can be both possible and profitable for businesses of any size.
Any company with global ambitions must first consider whether the company’s expansion outside of the U.S. will give rise to a taxable presence in the local country. In the cross-border context, a “permanent establishment” can be created in a local country when the enterprise reaches a certain level of activity, which is problematic because it exposes the U.S. multinational to taxation in the foreign country.
Foreign entity incorporation
To avoid permanent establishment risk, many U.S. multinationals choose to operate overseas through a formal corporate subsidiary, which reduces the company’s foreign income tax exposure, though it may result in an additional level of foreign income tax on the subsidiary’s earnings. In most jurisdictions, multinationals can operate their business in the foreign country as a branch, a pass through (e.g., partnership,) or a corporation.
As a branch, the U.S. multinational does not create a subsidiary in the foreign country. It holds assets, employees, and bank accounts under its own name. With a pass through, the U.S. multinational creates a separate entity in the foreign country that is treated as a partnership under the tax law of the foreign country but not necessarily as a partnership under U.S. tax law.
U.S. multinationals can also create corporate subsidiaries in the foreign country treated as corporations under the tax law of both the foreign country and the U.S., with possibly two levels of income taxation in the foreign country plus U.S. income taxation of earnings repatriated to the U.S. as dividends.
Under U.S. entity classification rules, certain types of entities can “check the box” to elect their classification to be taxed as a corporation with two levels of tax, a partnership with pass-through taxation, or even be disregarded for U.S. federal income tax purposes. The check the box election allows U.S. multinationals to engage in more effective global tax planning.
Toll charges, transfer pricing and treaties
When establishing a foreign corporate subsidiary, the U.S. multinational will likely need to transfer certain assets to the new entity to make it fully operational. However, in many cases, the U.S. multinational cannot perform the transfer without recognizing taxable income. In the international context, the IRS imposes certain outbound “toll charges” on the transfer of appreciated property to a foreign entity, which are usually provided for in IRC Section 367 and subject to various exceptions and nuances.
Instead, the U.S. multinational may prefer to license intellectual property to the foreign subsidiary for a fee rather than transfer the property outright. However, licensing requires the company and foreign subsidiary to adhere to transfer pricing rules, as dictated by IRC Section 482. The U.S. multinational and the foreign subsidiary must interact in an arms-length manner regarding pricing and economic terms. Furthermore, any such arrangement may attract withholding taxes when royalties are paid across a border.
Are you GILTI?
Certain U.S. multinationals opt to focus on deferring the income recognition at the U.S. level. In doing so, they simply leave overseas profits overseas and delay repatriating any of the earnings to the U.S.
Despite the general merits of this form of planning, U.S. multinationals will be subject to certain IRS anti-deferral mechanisms, commonly known as “Subpart F” and GILTI. Essentially, U.S. shareholders of certain foreign corporations are forced to recognize their pro rata share of certain types of income generated by these foreign entities at the time the income is earned instead of waiting until the foreign entity formally repatriates the income to the U.S.
The end goal
Essentially, all effective international tax planning boils down to treasury management. Effective and early tax planning can properly allow a company to better achieve its initial goal: profitability.
If global expansion is on the horizon for your company, consult a licensed professional for advice concerning your specific situation.
Pandemic risks eclipse treasury priorities as businesses diversify investments to mitigate impact
The Covid-19 pandemic has shunted aside existing challenges to sit atop treasurers’ priority lists, according to “The resilient treasury: Optimising strategy in the face of covid-19”, a survey run by the Economist Intelligence Unit (EIU) and sponsored by Deutsche Bank.
The results show that treasurers are looking to diversify their investments in a bid to mitigate the pandemic impacts, including heightened liquidity, foreign-exchange and interest-rate risk. As many as 55% plan to increase investments in long-term instruments, with 48% increasing investments in bank deposits, another 48% in local investment products, and 47% in money-market funds.
“The Covid-19 pandemic has drastically altered business plans in 2020. It has placed a certain level of strain on treasury processes, but the challenge it presents has been managed by traditional treasury skills. It is clear that pandemic risk will be on the treasury checklist for years to come, but it is one of many risks the department faces and will continue to manage,” says Melanie Noronha, the EIU editor of the report.
Despite Covid-19 looming large, other challenges wait in the wings. Notably, the replacement of the London Interbank Offered Rate was identified by 38% of respondents as the main challenge of their function.
Technology, meanwhile, continues to be a pressing issue, with treasury teams becoming increasingly reliant on IT solutions. Here, data quality is rising up the list of concerns. Already highlighted as very or somewhat concerning in 2019 by 69% of respondents, the figure rose to 78% in 2020. Acquiring the necessary skill sets to realise the full benefits of this data and technology is also a continuing priority – with some progress registered from last year. In 2020, 30% of respondents say they have all the skills they need to manage technological change, up from 22% in 2018.
“Treasury’s focus on technology is not only helping teams operate more efficiently in a remote-working environment, it has long played – and continues to play – a key role in realising their long-term priorities,” notes Ole Matthiessen, Head of Cash Management, Corporate Bank, Deutsche Bank. The survey shows that
Release 1 | 2 managing relationships with banks and suppliers (highlighted by 32% of respondents) and collaborating with other functions of the business (also 32%) remain top of the agenda – and seamless digital systems will help give treasurers the bandwidth and insight to be more effective partners for both internal and external stakeholders.
Based on a global survey of 300 treasury executives, conducted between April and May, the survey explores stakeholders’ attitudes among corporate treasurers towards the drivers of strategic change in the treasury function – from the pandemic through to regulation and technology – and their priorities for the next five years.
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