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Proposed Tariffs Threaten Biomedical And Generic Pharmaceutical Industries; What You Can Do To Protect Your Interests?
By: Henry T. Chou, Esq. In early April 2018, the Trump administration announced that it would place a 25% tariff on more than 1,300 products imported from China that include items used in the robotics, information technology, communication technology and aerospace industries. What is not widely known, however, is the fact that dozens of drugs and medical devices are among the Chinese products and ingredients that the Trump administration targeted for the 25% tariff. Under the administration’s proposal, defibrillators, pacemakers, artificial joints, dental fillings, birth-control pills, vaccines, insulin, epinephrine and lidocaine are among the many items targeted by the tariff. The U.S. medical device industry has expressed concern because many of its member companies own and operate factories in China that manufacture products that are sold in the U.S. Manufacturing activities in China have boomed in recent years, resulting in a situation where 12% of all medical devices imported into the U.S., worth $3 billion per year, are made in China. Analysts have estimated that the proposed tariff could cost the U.S. medical device industry up to $1.5 billion each year, with the increased costs ultimately being passed down to consumers. The generic pharmaceutical industry is also bracing for the effects of the tariff, given that China is a leading exporter of raw pharmaceutical ingredients. Of particular concern are generic injectable drugs, which are already in short supply due to existing manufacturing and supply issues. Two drugs on the list of Chinese exports subject to the proposed tariff are epinephrine and lidocaine, both of which are in short supply in their sterile injectable form. Additionally, since the raw ingredients for generic injectable drugs made in the U.S. are mostly sourced from abroad, the full extent of the tariff’s impacts may not be known for some time. The list of items subject to the proposed tariff can be viewed at https://ustr.gov/sites/default/files/files/Press/Releases/301FRN.pdf. There is still time to act if a product that you import appears on this list, as companies have until May 22 to submit comments to the administration regarding the tariff. Hill Wallack LLP stands ready to assist its clients in minimizing the effects of the proposed...read more
An India-based pharmaceutical company, Dishman Pharmaceuticals and Chemicals, Inc. (“Dishman”), won a significant victory on December 29, 2016, when the Appellate Division of the New Jersey Superior Court held that Dishman could not be sued in state court even though one of its subsidiaries, Dishman USA, Inc., is located in New Jersey. The litigation arose from the failed sale of a Chinese manufacturing facility owned by a Dishman subsidiary in China to FDASmart, Inc., a New York-based company. The Memorandum of Understanding (“MOU”) between Dishman and FDASmart provided that FDASmart would be paid certain consulting fees in connection with the transaction. It also stated that the deal was to governed by the laws of India, a non-disclosure agreement was to be signed in India, and fees were to be paid with applicable Indian taxes. When the deal fell through, FDASmart filed suit against Dishman and Dishman USA in the Law Division of the New Jersey Superior Court, alleging Dishman breached the MOU by failing to pay consulting fees to FDASmart. After the Law Division initially found that it had general jurisdiction over the dispute due to the presence of Dishman’s subsidiary in New Jersey, the Appellate Division reversed, holding that Dishman lacked “continuous and systematic contacts” with New Jersey to justify it being “haled” into its courts. The Appellate Division refused to assert jurisdiction based solely on the technicality of ownership of the subsidiary by the parent company and held that FDASmart needed to demonstrate the “dominance” of Dishman USA by Dishman via other factors such as “common ownership, financial dependency, interference with a subsidiary’s selection of personnel, disregard of corporate formalities, and control over a subsidiary’s marketing and operational policies.” Since the evidence in the record showed Dishman USA operated independently of and was not financially dependent on Dishman, the Appellate Division determined that the New Jersey courts lacked general jurisdiction over Dishman and dismissed it as a defendant. While this decision is generally favorable to foreign pharmaceutical companies with subsidiaries in New Jersey, it is a fact-specific outcome that may not be repeated in situations where parent-subsidiary operations are intertwined and subsidiaries are dependent on parent companies for decision-making and financial matters. Careful analysis and restructuring may be required to operate within the confines of the court’s decision and avoid imputation of liabilities upon the parent company. Hill Wallack LLP represents over 20 companies in the life sciences sector, including biotechnology, therapeutic, diagnostic, pharmaceutical, biopharmaceutical, biomedical and biosynthesis companies. The firm assists these clients in connection with intellectual property, technology transfer, university spin-outs, venture capital and finance, employment, regulatory and mergers and acquisition issues. This article is for informational purposes only and does not constitute legal advice or a legal...read more
根据有关报道，中国2015年在美国的直接投资年达到150亿美元。根据2016年目前的情况，这个数字可能在2016年被刷新。美中关系全国委员会（National Committee on U.S.-China Relations）和Rhodium Group 4月12日最新发布的信息称，中国2016在美国的直接投资预计将达到300亿美元。 由于人民币贬值的预期，以及中国企业面临转型的压力，这两个因素将持续推动中国对美国的直接投资。根据新闻报道以及有关报告，2016年第一季度，中国企业在美国的投资实际完成的超过了50亿美元，还有已经公布但是还在协商过程中的收购兼并项目的总交易金额也超过了200亿美元。...read more
Professors from China met with New Jersey State Bar Association (NJSBA) staff and members from APALA-NJ recently to discuss efforts to preserve judicial independence and promote fairness and access to the justice system. Sharon Balsamo, NJSBA assistant executive director and general counsel, welcomed the group of about 25 professors from the Henan Academy of Governance and explained how the NJSBA educates its members and the public, works with government on issues of concern, and gives NJSBA members a forum to have a voice on issues—all efforts to promote access to justice. Lisa Spiegel, senior managing director of continuing legal education programs, explained that the NJSBA provides education to all areas of the New Jersey court system, from the state Supreme Court down to the municipal courts. And Director of Government Affairs Lisa Chapland discussed how the NJSBA advocates for positions of legislative interest to the association and presented an overview of the Legislature and how laws are made. Members of the Chinese group asked numerous questions, including the size and population of New Jersey, how attorneys are licensed, the number of bills introduced annually in the Legislature and details about how matters such as manslaughter are handled in the courts. APALA-NJ member Moly Hung offered insights based on his experience as a municipal court judge. “The caseload for municipal court depends on the population and in a town of 80,000 people, a judge can hear 250-300 cases in one session,” he said. “Cases move very quickly and you have to make quick decisions. If someone wants a trial, you do it then and there, unless you move it.” The meeting was arranged through the U.S.-China Business Training Center. Based in California, the center is a China State Administration of Foreign Affairs-certified provider of professional training programs for Chinese officials, industry professionals and business executives. APALA-NJ members and Hill Wallack attorneys, Henry Chou and Kun Zhao, attended the...read more
作者：赵鲲律师 很多个人和公司都想加盟连锁经营店，例如McDonald’s, Subway, Panda Express, Kung Fu Tea等等。新闻中也时常介绍我们华人加盟这些连锁经营店不失为谋生创业的一个好途径。最近，我有机会代理和帮助几个客户加盟不同的连锁品牌，希望在此和广大读者分享新泽西Franchise Practices Act保护加盟者的主要内容，以及对连锁经营合同的影响。 新泽西的立法部门认为连锁经营店的销售经营对本州的整体经济有重要的影响，涉及社会公共利益。因此，出于公共利益的角度，新泽西政府需要对连锁品牌的所有人和加盟者的权利和义务进行规范，平衡全国性和地区性的连锁品牌所有人和相对弱小的加盟者之间的议价能力。 新泽西连锁经营法适用满足以下六项要件的加盟关系：（1）有一个限期或者无限期的书面协议；（2）该协议允许一方通过授权使用一个商标；（3）通过租约的形式批发或零售商品或者提供服务；（4）要求加盟者在新泽西有一个实际经营地；（5）加盟店的年营业额在$35,000以上；（6）至少20%的年营业额源于该连锁品牌。 如果一个商业合同关系满足以上六个要件，那么该商业关系符合新泽西连锁经营法对连锁经营的定义。新泽西连锁经营法就适用该合同。该法对合同关系的几大重要影响如下： 一、连锁品牌的所有人不得无正当理由终止合同或者拒绝续签合同。换句话说，只要加盟者遵守连锁经营合同的主要条款，正常履行合同义务，那么加盟者可以无限期地续签连锁经营合同。 二、新泽西连锁经营法禁止连锁品牌的所有人对加盟者施加不合理的履约标准。法院还未通过具体案例对此作出解释，但是理论上该标准不能苛刻地以至于迫使加盟者终止合同。 三、对于加盟者出售和转让连锁店的生意，加盟者必须将购买者的姓名、地址、商业经验和财务信誉等信息书面通知连锁品牌的所有人。连锁品牌所有人则有60天的时间决定是否同意。新泽西连锁经营法规定，连锁品牌所有人只能因为和购买者的品德信誉、财务能力和商业经验相关的理由才能禁止加盟者转让。 四、连锁品牌所有人不得禁止加盟者自行联合起来成立组织，不得无正当理由禁止加盟者撤换管理层，以及不得在公司控制权未改变的情况下，禁止加盟者转让他的公司股份给公司的员工和加盟者的家庭成员。 最后，在适用法律和争议解决方面，无论双方在连锁经营合同中如何约定，新泽西连锁经营法规定所有涉及位于新泽西州内的连锁经营店的法律纠纷适用新泽西法律，并且授予新泽西法院管辖权。...read more