Perspectives on Cross-Border Legal Practice,Politics,and Everyday Life in a World Nobody Understands
Warm greetings to colleagues, friends, current and former clients, mentors, others I have not yet had the privilege of meeting but are otherwise connected with Jia Law Group ("JLG") or through mutual connections - Also to so many more from my various "past lives" at O'Melveny & Myers, Willkie Farr & Gallagher and, of course, in Washington DC, New Haven, Deerfield, Los Angeles, Europe and Asia - altogether far too many great people with whom I have woefully fallen out of touch. That all ends -- RIGHT NOW.
So What is This Anyway? I write both to introduce (or re-introduce) myself on the occasion of completing my first year as a Partner at JLG where I was fortunate to be offered the opportunity to create and build up a new cross-border/regulatory practice group especially relevant for today's interconnected but exceedingly uncertain world. As all of us consider what the rest of Q3 and Q4 2020 will bring (thinking any further than that seems almost reckless...), I've decided to begin sharing newsletters discussing the work we are doing here at JLG's New York City Headquarters (as well as in our California and China offices), and offering my personal viewpoints and experiences on wide-ranging related topics that (one way or another) also characterize these surreal times.
Lessons Learned and Remembered: The past 12 months have taught me more than I could possibly have imagined. So today I'm starting big. While my future messages will be more narrowly targeted, I'll begin with general background and then hone in on more specific topics. Importantly, this newsletter's title, "Law & The Global Citizen" isn't random. My conviction is that what produces the best outcomes in law and life was summed up brilliantly in President Kennedy's Inaugural Speech. JFK's line beginning "And so my fellow Americans, ask not what your country can do for you..." was so tragically brilliant that few remember what he said next... "My fellow citizens of the world: ask not what America will do for you, but what together we can do for the freedom of man. And finally, whether you are citizens of America or citizens of the world, ask of us here the same high standards of strength and sacrifice which we ask of you." JFK nailed it. Strength and sacrifice are our engines for legal success.
Reflections and Accomplishments From the Past Twelve Month (a/k/a "Cross-Border Law When You Can Barely Cross Manhattan")
Upon accepting my offer to become a Partner at JLG one year ago today - a law firm focused primarily on US-China transactions, cross-border disputes, complex litigation and immigration/employment law, it's safe to say there were JUST A FEW SMALL THINGS I WAS NOT COUNTING ON...
Like an Earthquake During a Hurricane: The most significant trade conflict in modern US-China history - An explosion of political tensions in the United States exceeding even the 1960s - Multiple worldwide economic crises (numbers rivaling the Great Depression!) - Mass-protests, justified and unjustified calls for social change and, tragically, new waves of violence covering the gamut from nihilism to religious zealotry to political extremism (not only in the US, but Hong Kong, Europe, the Middle East, Africa and Latin America) - AND add to all that what nobody bothered to let me know would occur right about half way into a year I'd actually expected to spend traveling the world: Namely, The worst global pandemic since 1918, now tragically resulting in an average of more than 1000 deaths per day in the United States alone.(with nearly five million confirmed American cases, a staggeringly large share of the world's 18.8 million). With arguably the most important Presidential election in post Civil War US history less than three months away, it's safe to say the words "historic moment" don't suffice. New York Times Columnist David Brooks did indeed get much closer by analogizing the present situation to "an earthquake during a hurricane."
Despite unprecedented challenges - and sometimes because of them - I can confidently assure all of you that neither JLG, nor my practice group ("Global Enforcement") - are retreating. From New York to Shanghai - from Kuala Lumpur to Washington DC, we remain 100% committed to our clients, our values and to exploring bold new concepts about realizing the truest form of "zealous advocacy" -- not merely as attorneys but as front-row witnesses to the suffering in Wuhan, the lights going out on Broadway, mass protests met by 5:00 PM curfews in Manhattan and the undeniable fact that law firms unable to broaden their definition of the word "counselor" are becoming less relevant by the day. It's in that context I'm particularly proud to highlight a number of representative accomplishments achieved on the cutting edge of cross-border and regulatory law:
Assisting one of China's largest global biotech companies solve potential regulatory crises, defeat an attack by hackers and subsequently implement proactive cyber-security measures.
Overcoming litigation and regulatory hurdles facing an innovative start-up, allowing the company to focus on its core mission of reinventing camping and expanding access to America's wilderness while successfully completing a new round of VC funding (even despite COVID-19 and enormous economic pressures).
Advising multiple Chinese entrepreneurs on how best to establish new business entities in the United States during a period where net Chinese investment in the US remains down between 90%-92% from January 2017.
Moderating panel discussions for groups including the Asian American Real Estate Association of America; Co-hosting a joint discussion on "global citizenship" sponsored by JLG, a major international estate firm and the Foundation for the Support of the United Nations; Speaking to more than 20 visiting Chinese judges about improving mutual understanding between our countries' respective judiciaries; And - more recently - addressing multiple groups of Chinese attorneys and businesspeople on subjects including expanded application of the the US Foreign Corrupt Practices Act ("FCPA") and navigating cultural differences when negotiating and drafting contracts between US and Chinese counterparties.
Appearing as a featured speaker on the American Bar Association's official podcast to discuss how businesses and attorneys can take defensive measures against the weaponization of regulation by the United States government against Chinese targets (later widely simulcast over iTunes and Spotify).
Integrating public relations, public affairs, and political strategy to fight and win battles for clients as diverse as an importer of mask-making robots in California and a Chinese Crypto-Currency Fund - With more integrated legal practice on deck for Q4.
Counseling a Malaysian producer of medical supplies (including COVID-related PPE) seeking to avoid actual and potential difficulties with the US Federal Trade Commission ("FTC"), the US Department of Commerce ("DOC") and the US Food & Drug Administration ("FDA") - an ongoing representation that has already chalked up one significant victory in a contested DOC proceeding.
Building strategic alliances with major Chinese law firms by deploying JLG's unique attributes to differentiate itself based on longstanding local relationships of trust, increasing "boots on the ground," and working toward a continuously improving ability to help Chinese attorneys and their clients navigate thorny issues like FCPA and AML enforcement in a culturally appropriate context.
Some Thoughts About the Remainder of 2020: The Power of Imagination in an Age of Fear
While I believe that better days lie ahead, I'm also convinced that advancing toward some type of normalcy will require serious adaptation and an unfortunately large amount of patience. I'm not just talking about the new everyday realities of Zoom conferences, face masks, working from home and social distancing. Coming out of all this intact will require as yet unknown - but far more profound - acts of personal sacrifice, ingenuity from our scientific and business communities, in addition to totally new modes of interaction. Again, I couldn't be happier to point to JLG as an example of what this last point looks like in practice.
JLG's motto is: "Legal Excellence Through Global Connections." Being excellent in 2020 (whatever your business) demands thinking beyond borders, forging diverse relationships often without leaving our homes and never forgetting that no matter how often you hear accusations (correct or incorrect) about "fake news" - learning to discover and speak the truth is not only an ethical obligation but our greatest source of hope. Sound daunting? It is. But it's not impossible. After all, we actively imagined a more fearless world right here at JLG. Now, our growing stature in cross-border and regulatory affairs is proof-positive that it can be done.
On various occasions these past months, I've made the point that even COVID-19 itself teaches strangely identical lessons: Just as viruses succeed because they don't discriminate based on ethnicity, national borders, immigration status or cultural difference, those individuals, businesses and nations with the resilience to reinvent struggling businesses, the courage to fight injustice in the streets and the courtroom, and the political wisdom to recognize that real patriotism has nothing to do with heartless nationalism, will flourish. But unlike COVID-19, which one day will be defeated by science, when it comes to the ethical precepts I've highlighted, the opposite proves true: reason, logic and the quest for truth - the very essence of what it means to be a lawyer, journalist, scientist or successful entrepreneur - remain our best chance for preserving human decency against all enemies foreign and domestic. Deep down, that's what this new practice group is all about. Obviously, not all regulation is misguided or misapplied. But when it is - and especially when it's unfairly used to single out an ethnicity or nation - we're ready to perform the duty of "Global Enforcement" - Ensuring that "equal justice under law" never becomes just another phrase etched in stone (and doesn't have a disclaimer attached reading "for native-born Americans only").
Enough rambling...Some quick thoughts (not predictions) on what to be watching in the hours, days, weeks and months ahead:
2020 US Presidential Election: First off (and speaking solely for myself), I'm a Biden supporter who remains deeply troubled by the various ways I believe the present administration has led the United States in the opposite direction of the values I just mentioned: more isolationism in the world; more division at home; and a coarsening of discourse, often even between friends and family members. Second, I still believe in American resiliency. I think the world - including nations with different histories and political systems like China - benefit from a United States that is both assertive, innovative and respectful. There are real risks we will see short-term disorder and perhaps even serious violence before and after the November election. Experts (and idiots) on both sides have opined about the possibility of a postponed or cancelled election. (Notably, no US election - including during wartime has ever not been held on schedule) A majority of Americans remain people of good will. In the end, that's what gives me the confidence to state that no amount of political trickery - from Washington DC or Moscow - will prove sufficient to halt the American experiment. The rhetoric (and racism) about China, immigration, Black Lives Matter and countless other issues is sure to get ugly. However, If we can somehow emerge from November with our worst memories only of anger and divisive speech, that in itself will prove our nation's enduring strength. Elections are meant to be contests of ideas. Anyone dedicated to that fundamental proposition - Republican or Democrat - will be an asset to the United States and to the world during what are sure to be three very fraught months.
Legal and Regulatory Issues: In the short-term, expect continuing increased regulatory pressures and additional restrictions on immigration. In the past hour, The Wall Street Journal literally just broke the following story about what is perhaps the most serious use of regulatory force and possibly illegal Presidential action unleashed by the United States against China: "Shares of Tencent Holdings Ltd. TCEHY 0.17% plunged as much as 10% on Friday, hours after President Trump signed an executive order that would bar U.S. entities from transacting with the Chinese internet giant and its popular social-media app, WeChat . . . On Thursday evening in Washington, Mr. Trump issued a pair of executive orders that would impose limits on WeChat as well as TikTok, escalating tensions with Beijing. The orders bar people in the U.S. or individuals who are subject to U.S. jurisdiction from transactions with the China-based owners of both apps, effective 45 days from Aug. 6." As for immigration, this past week saw the Second Circuit mostly uphold a District Court's decision striking down the Trump Administration so-called Public Charge Rule which had sought to make it more difficult for economically disadvantaged to obtain Green Cards or multiple types of visas. While it's anyone's guess what SCOTUS will do, because the original ruling was narrowly based on the unique conditions presented by COVID-19, I would bet on either (a) a 5-4 with Justice Roberts casting the deciding vote upholding the Second Circuit's decision; and (b) SCOTUS letting the ruling stand without comment since the Second Circuit limited the scope only to three states which was one of primary issues that had originally been of concern for the High Court's more conservative Justices. (Alright I lied when I said no predictions...)
US-China Relations: Even beyond these late-breaking developments, it now seems unavoidable that China will be used as a "wedge issue" in the US election. Political rhetoric, however, shouldn't unduly frighten businesses on either side of the Pacific. What we have seen again and again at JLG is that most people - Chinese people and American people - wake up thinking about family, friends, jobs, their future and their children's future - not politics. On the other hand, that's precisely what politicians DO think about. Because America and China have far too much to lose from a serious conflict, neither government is likely to risk the domestic political fall-out from a deliberate and protracted military conflict. Just as President Trump is increasingly terrified about losing the votes of supporters who were falsely promised their problems would be solved by blaming China and building a wall on the Mexican border, Chinese leaders are likely equally fearful regarding their own faltering economy. That doesn't mean the risk of "accidental war" isn't real or that we should tolerate reckless actions. For those looking to reap the benefits of transacting with the world's two largest economies, however, now is the time for intelligent expansion. JLG still counsels clients to practice risk avoidance while remembering to focus on their core businesses. We're always read to mount a defense, but to echo Sun Tzu: "Real glory is not found in winning a battle but from winning a war without having to fight a battle." Meanwhile, also look out for more of what appears to be substantially stepped enforcement actions/harassment of Chinese citizens by CBP/Homeland Security. (A 66% increase according to recent reporting in The South China Morning Post)
Solving Problems Today While Preparing for a "Post-COVID" World: I'll have more to say about this in my next installment - especially since our firm is planning several conferences addressing different aspects of the subject. I would, however, recommend this excellent article by David Leonhardt entitled: "It's 2022 - What Does Life Look Like?" Also next time, I also hope to address some very dangerous but insufficiently appreciated threats posed to the economy - this time solely the fault of a dysfunctional Congress. For now, Nobel Prize-winning economist, Paul Krugman, sums up the dangers with frightening detail. Certainly worth your time and contemplation.
If anyone is still reading (or has wisely skipped ahead), I salute you and thank you in joining me on this first step toward increasing my own level of engagement and living up to those ideals of global citizenship I addressed at the opening. Future "chapters" will generally be MUCH shorter and more closely tailored to the news cycle, important legal developments and specific groups of recipients.
Until then, I wish everyone health, peace and prosperity. (Also, I absolutely invite feedback and questions about legal issues or anything else - My contact information and personal bio are available below and at one of the links that opened this article.)
Kind regards, James Berger Global Enforcement Partner