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Establishing a Business Presence in the USA
Published by UK Trade & Investment, April 2009
By Aaron N. Wise, Esq.
Partner
Gallet Dreyer & Berkey, LLP
This page contains a general summary of the Guide and its table of contents. The full text of the publication can be downloaded cost-free. Should you have questions about any of the subjects or points dealt with in the publication, or any others, you can always contact its author,
Executive Summary
Establishing a Business Presence in the USA was prepared for UK Trade & Investment by Aaron N. Wise, Esq., a practicing lawyer and partner of the New York City law firm, Gallet Dreyer & Berkey, LLP, with years of experience in assisting foreign businesses and business people, including those from the UK, with their legal and tax matters.
UK Trade & Investment is the United Kingdom Government organization that both supports companies in the UK doing business internationally and overseas enterprises seeking to locate in the UK.
The guide is intended mainly for UK business people intending to do business or already doing business in the USA; or facing some other legal or tax issues. However, UK professionals and such as lawyers (solicitors, barristers), chartered accountants, bankers, and those in other fields may also find it a valuable tool. Business people in countries other than the UK may also wish to use this as a general guide, since most of the content applies to exporters, investors etc. from essentially any foreign country.
The publication deals with subjects such as:
- Exporting and selling to the US market and dealing with distributors and agents;
- Product liability in the US;
- Setting up a US subsidiary to sell and manufacture;
- Dealing with employees under US law;
- Setting up and operating a joint venture;
- Intellectual property in the US;
- Licensing and technology transfer;
- Operating an Internet business;
- Buying an existing US company or a part ownership in one;
- US taxation;
- US visas;
- Litigation and arbitration;
- Errors often made by newcomers to the US market.
It is written in an easy to understand style for the non-lawyer, and apart from factual information, contains the author’s views and tips based on his practical experience. While mainly providing overview of the subject matter, specifics are not overlooked. For the busy executive, this publication strikes a balance between a very technical, legalistic one with more subjects and detail and one lacking in real meat and substance.
For those wishing more a more detailed treatment of the above subjects, and others, on doing business in and with the USA, other cost-free downloadable publications of the author are available. See below under Other Free Publications.
This guide is not intended as a substitute for the advice of competent legal or other advisers in connection with any particular matter or issue, and should not be used as a substitute. While the author has made efforts to be accurate in his factual statements contained in the guide, neither he nor has law firm or anyone connected with it make any representation or warranty in this regard. Opinions, interpretations and predictions expressed in the guide, or in this promotional piece, are the writer’s own.
Table of Contents
- About the Author
- Aaron N. Wise, Esq.
- Gallet Dreyer & Berkey, LLP
- Exporting and selling: Contracts with American distributors and agents
- Your products and services
- Trademarks and other intellectual property
- Filing your copyrighted works with the US Copyright Office
- What are distributors and sales agents?
- How many?
- ‘Due Diligence’
- The drafting initiative: a critical point
- Importance of first class contracts: reducing risks of lawsuits.
- ‘NB-SOT’
- Product liability
- Proper perspective of risk
- Who can be sued?
- Passing and reducing risk by contract
- Another liability area
- UK contract documents probably won’t do the trick
- Product liability insurance
- If you are sued or suit is threatened
- Creating a US subsidiary to sell or manufacture
- Legal form
- What’s wrong with just setting up a branch office of my UK company?
- Which US state?
- Registering in another state or states
- Corporate name and trademark
- Can your use of a corporate or company name infringe a third party’s trademark rights?
- Minimum capital
- Nationality or residency requirements
- One shareholder
- Board members’ powers and related points
- Required and optional officers
- Restricting the power of corporate officers
- Is a corporate officer or director of a US corporation its employee?
- Tax returns if a corporation is inactive
- A lawyer in one state forming a corporation outside that state
- Time
- Corporate bank account(s)
- Office leases; other premises leases; warehouse leases; foreign trade zones
- Manufacturing in the USA
- Government investment incentives
- Insurance
- Accountant
- Dealing with employees: Key features of US law and practice
- Employment contracts, employee secrecy and non-competition agreements
- Termination without cause and termination for cause
- Employee confidentiality and employee invention agreements
- Post-employment non-compete clauses
- Discrimination and other unlawful acts by an employer
- Employer retaliation against employee(s) wishing to unionise
- Employer handbook or similar document
- Proper payment of US taxes and withholdings, workers compensation insurance
- Employee pensions and profit sharing plans and certain other employee benefits and incentives
- Employees of the foreign parent or foreign JV owner(s) working in the USA
- Joint Ventures
- The right partner
- Most US JVs are not permanent
- US corporation as JV vehicle
- Three typical types of US JV
- Importance of first class JV contract documents.
- ‘NB-SOT’
- Drafting initiative
- Tax planning
- Input of UK client
- US corporation with more than one shareholder
- Costs
- Intellectual Property in the USA
- Patents
- Trademarks
- Domain names
- Copyrights
- Trade secrets
- ‘Right of Publicity’ and ‘Right of Privacy’
- The trademark application process in the USA
- Filing with the US copyright office (copyright applications)
- Licensing and technology transfer to and within the USA
- The meaning, pros and cons of licensing
- Protecting your intellectual property
- ‘Due diligence’ review of licensee candidates
- License agreements for the US market
- The NB-SOT
- The drafting initiative
- Competitive restrictions on a licensee: potential illegal or dangerous terms
- Exclusive licenses and non-exclusive licenses
- Clauses protecting licensed trademarks
- Royalties, up-front payments, etc
- Trade secret and know-how licensing and protection
- Sale of intellectual property
- Choice of tribunal and choice of law
- Tax aspects
- Computer software licenses and authorized reseller agreements
- Policing the agreement
- Trademark protection
- UK style license, reseller and other computer software agreements
- Internet business: An overview of US Cyberlaw
- Protecting your own intellectual property used in cyberspace
- Not infringing third party intellectual property rights
- Certain other cyberspace illegalities
- Privacy policy and terms of use on one’s own website and other website concerns
- Buying an existing US company or a part ownership thereof
- Due diligence is a must
- Stock purchase; assets purchase
- Drafting initiative
- Do your own homework and be patient
- The antitrust law aspects
- The tax aspects
- An overview of US taxation
- Permanent Establishment (PE) in the USA
- Claiming tax treaty benefits
- Branch, LLC or corporation
- Taxation of corporations: US Federal Income Tax
- Interest and royalties between related companies
- Debt/equity ratio
- Real estate (immovable property)
- Accumulated earnings tax (AET)
- Dividends
- Financial statements
- State corporate income tax
- Payroll taxes; voluntary expenses
- State sales taxes
- US business-related Visas for UK Nationals
- Temporary US visas and the permanent residence visa (Green Card)
- The B-1
- L-1
- The ‘H’ category visas
- E-1 (Treaty Trader)
- E-2 (Treaty Investor)
- Permanent resident visa (Green Card)
- Permanent resident visa based on a substantial US investment (visa EB-5)
- Litigation and arbitration
- Americans’ proclivity to start lawsuits or threaten to do so
- Litigation in US courts
- The Arbitration clause; Applicable Law
- Errors frequently made by companies new to the US market
- Due diligence on your prospective US business partner
- Letting someone other than your most trusted employee handle intellectual property filings
- Intellectual property filings in the USA are a priority item
- Don’t let anyone but your trusted employee handle setting up your US company, working with your US lawyer (and other experts)
- Using service companies to form your own US company
- First class contracts for the US market are a must
- Using properly drafted general terms of sale (GTS) tailored to the US market
- Be careful when terminating US distributors, franchisees, sales agents and licensees
- Your US business lawyer should be part of your negotiating team
About the Author
Aaron N. Wise, Esq.
Aaron N. Wise is a partner of the New York City law firm Gallet Dreyer & Berkey, LLP. Mr. Wise's areas of expertise include corporate, commercial and contract law, taxation, intellectual property law, and other areas dealt with in this guide. Mr. Wise holds law degrees from Boston College Law School, New York University Law School and the University of Paris (France). He is a frequent lecturer inside and outside the USA and is listed in Who’s Who in America, Who's Who in American Law and other Who's Who publications. Mr. Wise is proficient in German, French, Italian, Spanish, Portuguese, Russian and Japanese, and has a basic working knowledge of several other languages. He also practices in the sports law field, both domestically and internationally. He is the author of the multivolume work, International Sports Law and Business (Kluwer Law International, The Hague and Cambridge, Mass, 1997). He has been a speaker at seminars held in the UK and many European countries on doing business in the USA and on sports law and business topics. Mr. Wise has considerable experience in representing non-US (foreign), including in particular, UK clients, their subsidiaries and affiliates in connection with their US and international legal and tax matters.
Gallet Dreyer & Berkey, LLP
Gallet Dreyer & Berkey, LLP (GDB), based in the heart of New York City, offers a full array of legal and tax services. GDB is capable of handling client matters throughout the USA, as well as clients’ international legal and tax matters. Examples of GDB’s fields of expertise include: direct investments in the USA of all kinds, including acquisitions and mergers, joint ventures, setting up of companies and manufacturing facilities; contracts of all kinds; commercial law; bank law and regulation; bank transactional matters; finance law, financing transactions and contracts; law and contracts regarding construction and engineering projects; real estate; technology transfer and licensing; industrial and intellectual property; computer law and contracts; internet law and contracts; tax law and tax planning; visas and immigration; litigation, mediation and arbitration (including product liability cases); trusts and estates, probate, wills (domestic and international); white collar criminal litigation; sports and entertainment law; other areas of US and international law dealt with in this guide.
Other Free Publications
The publications listed below have been prepared by the International Law practice group of Gallet Dreyer & Berkey, LLP and are available for download at no cost:
- A UK Business Person’s Guide to American Law – Business Practices – Taxation Download
- American Product Liability: ‘Good News for Business!’ Recent Trends and Developments – A Guide for UK Companies Download
- General Terms of Sale for Exports to the USA, the Western Hemisphere Generally, and Worldwide: A Guide for the Foreign (Non-US) Exporter Download
- Placing Your Goods ‘On Consignment’ with Your American Business Partner: What the Foreign Exporter and its Financing Bank or Factor Should Know Download
- Debt Collection: Will United States Courts Recognize and Enforce Foreign Country Judgments? Download
- The Acquisition of an Existing American Company or an Ownership Interest Therein: A Short Practical Guide for the Foreign Business Person and Foreign Lawyer Download
- Purchase and Leasing of Real Property in the United States (Co-author David Berkey, Esq., Partner of Gallet Dreyer & Berkey, LLP) Download
Contact the Author
Aaron N. Wise, Esq., Partner
Gallet Dreyer & Berkey, LLP
Attorneys at Law
845 Third Avenue, 8th Floor
New York, New York 10022-6601, USA
Tel: (001) 212 935-3131
Fax:(001) 212 935-4514
E-mail:
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