USA Law and Practice Contributed by: Olesya Bakar, William “Bill” Jackson, Daniel E. Levisohn and Steven D. Lear, Holland & Knight LLP
• the Entity, Denied Persons and Unverified List maintained by the US Department of Commerce; and • the Corporate Transparency Act. 3.3 Sanctions, National Security and Foreign Investment Controls CFIUS allows the US government to review non-US investments in US businesses for national security concerns, and the President can block risky transac - tions. Its application is more common today across multiple industries, including real estate. No statute of limitations applies to CFIUS reviews, unless previ - ously approved OFAC administers the US sanctions programmes, which preclude JVs from doing business with certain blocked non-US venturers or venturers from embar - goed countries In addition to federal laws, many states also have reg - ulations to address national security issues, including the following. • In May 2023, Florida enacted Chapter 692, Florida Statutes, which restricts, with limited exceptions, certain “foreign countries of concern” from directly or indirectly owning, having a controlling interest in or acquiring any interest in real property in Florida. Foreign countries of concern include China, Rus - sia, Iran, North Korea, Cuba, Venezuela and Syria. Similarly, Texas passed the Lone Star Infrastructure Protection Act, prohibiting certain investments from countries of concern that would affect critical infrastructure. • Other states are in the process of restricting ownership of real property by China and certain other countries. The existing and proposed laws of each jurisdiction in which the JV conducts busi - ness must be analysed where there are Chinese (or other specified non-US) venturers. 3.4 Competition Law and Antitrust Venturers need to consider applicable US antitrust regulations, which include the following:
• the Sherman Act – prohibits certain anti-competi - tive practices, such as price-fixing, market alloca - tion and customer allocation; • the Clayton Act – regulates activities that lessen competition and lead to monopolies; • the Federal Trade Commission Act – prohibits unfair competition and deceptive practices; • the Hart-Scott-Rodino Act – may require a filing with the FTC and DOJ before entering into certain JV formations and transactions; and • state laws – most states have their own unfair competition laws, and healthcare-related JV trans - actions may be subject to review and filing require - ments under applicable state statutes. In general, where antitrust challenges are at issue, the JV must have a legitimate pro-competitive purpose, such as new product creation, a reduction in price for customers and market efficiencies. This is measured against venturers’ market power through the JV that would not otherwise exist. Restricting the venturers’ ability to compete outside of the JV and other anti- competitive conduct can raise antitrust scrutiny. 3.5 Listed Companies and Market Disclosure Rules There is no applicable information in this jurisdiction. 3.6 Transparency and Ownership Disclosure Corporate Transparency Act Original CTA Effective 1 January 1, 2024, with certain exceptions, each US legal entity that was created by a filing with a secretary of state (“domestic” entity) and each entity formed outside of the US that qualified to do business through a secretary of state filing (“foreign” entity) was considered a “reporting company” that must file a “CTA report” with FinCEN. Revised CTA After a flurry of activity in late 2024 and early 2025 by FinCEN and a number of federal courts, as well as a new administration, on 21 March 2025 FinCEN prom - ulgated an interim final rule that exempted domestic entities from having to file CTA reports. It also excludes US persons (defined in the IRC), including individual citizens and residents who meet certain residency requirements and domestic entities that are beneficial
220 CHAMBERS.COM
Powered by FlippingBook