RK&O states its case

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Richards Kibbe & Orbe has represented companies based in China since 1995. That year, we were retained to represent the New York branch of a Chinese state-owned enterprise (SOE) that had been victimised in several financial frauds. One of the frauds was a Ponzi scheme in which a “financial adviser” induced the company’s officers in New York to “invest” in foreign currency futures. Those investments were repeatedly repaid on time, with a profit. The “profit”, however, was from the cash invested by other PRC companies that had been defrauded as well. The losses were ultimately in the tens of millions of dollars. Our representation of the SOE resulted in federal court litigation in the US against the mastermind of the scheme. Our investigation also resulted in a criminal investigation in New York, the extradition from Australia of one of the key players in the fraud, and his conviction and incarceration. We also assisted in, and represented the interests of our client in, the first US-China joint criminal investigation under the US/PRC Mutual Legal Assistance Arrangement of 1997. Our attorneys assisted agents of the Ministry of Public Security as well as the US Federal Bureau of Investigation and the US Department of Justice in interviewing witnesses and suspects in the case.

Brian Fraser
Brian Fraser

We also successfully represented a major Chinese company in litigation in the US against Lehman Brothers arising out of tens of millions of dollars of losses from inappropriate derivative transactions. Those derivatives were tied to fluctuations in the Thai baht. Our litigation resulted in a satisfactory settlement.

One of our partners formerly served as the first director of the Office of International Affairs at the US Securities and Exchange Commission (SEC), and negotiated the first memorandum of understanding with the Chinese Securities Regulatory Commission in 1994, as well as similar arrangements with other countries. Our lawyers are litigators, former prosecutors and former senior officials from the SEC.

The firm’s transactional lawyers also represent domestic and foreign companies in transactions involving debt, equity and derivatives. Our regulatory lawyers provide advice and assistance in complying with US regulatory schemes including the Foreign Corrupt Practices Act, Iran and Cuba sanctions, federal and state securities laws, and antitrust laws.

Corporate and business transactions

Since our inception, RK&O has had a strong presence in the trading market for par and distressed bank loans, and other financial claims against troubled or insolvent companies. We are recognised internationally as a leader in distressed debt industry developments and legal practices.

Our mergers and acquisitions (M&A) experience includes acquisitions and dispositions of both public and private companies, as well as the representation of buyers and sellers in leveraged buyout, management buyout and other going-private transactions. Our private equity representations include traditional private equity investments in private and public companies, and also more unconventional investments and investment structures. In our lending practice, RK&O not only represents clients in the loan origination and syndication process, but also advises mid-cap companies on cash flow-based lending, asset-based lending, leveraged buyout financing, acquisition financing, recapitalisations, and other secured (including multi-lien and unitranche facilities) and unsecured financings.

Our extensive experience in the underlying debt and equity markets as well as US bankruptcy proceedings provide the foundation for our derivatives practice.

We represent industry groups in connection with structuring and documenting new derivative products; dealers and market makers in developing trading strategies that require a comprehensive understanding of debt and equity instruments; and end users in connection with establishing master derivatives trading relationships with dealers and prime brokers.

Litigation, regulation and compliance

RK&O’s regulation and compliance practice serves leading participants in the global financial markets. Our regulation and compliance clients range from public and private companies to accounting firms, financial services companies, hedge funds and other investment funds, broker-dealers and other market participants. We assist in our clients’ design and implementation of effective compliance policies, internal procedures and business practices, and we provide them with advice on disclosure, trading and transactional matters, and on the practical application of existing laws and new regulatory initiatives.

RK&O’s litigation group is also well known for its experience, determination and dedication to its clients. Our lawyers are veterans of hard-fought cases through trial and appeal. Many of our litigators were assistant US Attorneys, held senior positions in the SEC, or were appointed law clerks in federal or state courts.

RK&O’s litigators advise and represent an international clientele, including major commercial banks, investment banks, hedge funds, insurance companies, investment advisers, broker-dealers, accounting firms, and manufacturing and technology companies. We also have deep experience in the advertising, aircraft, manufacturing, semiconductor and pharmaceutical industries, and we represent officers and directors of public and private companies. We succeed not only by winning cases, but by avoiding future conflicts.

RK&O has long been a go-to firm in the fields of securities enforcement, government investigations and criminal defence. We help institutional and individual clients defend – or more often avoid altogether – regulatory and criminal proceedings. Our clients retain us to represent them in the context of matters involving: domestic and cross-border investigations of financial and accounting fraud; securities trading and market manipulation; broker-dealer sales practices; corruption, bribery and money laundering; and a wide range of regulatory and criminal issues involving domestic and international regulators.

Conclusion

While many companies in the PRC are understandably concerned about being subject to litigation and regulation in the US, the right counsel can help Chinese companies comply with US law and protect their interests in the US.

Brian Fraser is a partner at Richards Kibbe & Orbe in New York. He can be contacted on +1 212 530 1820 or by email at [email protected]