Manny Schoenhuber te gast bij Erik Broekhuijsen
Iedereen kent de verhalen wel over de torenhoge claims die in Amerika geëist worden. De rechtzaak rondom de kat-in-de-magnetron is hiervan een van de beruchtste voorbeelden. In Amerika lijkt zo’n beetje alles aanklachtwaardig te zijn en rechtszaken met mega claims zijn er aan de orde van de dag. Dit kan als Nederlands bedrijf toch wel even schrikken zijn. Het zorgt voor een laagdrempelige claimcultuur, waardoor ondernemers die overwegen zaken te gaan doen in Amerika dit toch als een beetje spannend kunnen ervaren.
Bedenkingen zoals: “Hoe zit dat met die claimcultuur exact? Wat zijn de risico’s? Moet echt iedere brief, contract of zakelijke overeenkomst eerst over het bureau van een advocaat gaan, voordat het als veilig beschouwd kan worden?” maken onderdeel uit van de zorgen die je als ondernemer kunt hebben bij het betreden van de Amerikaanse markt. Het lijkt op een haast ondoordringbare muur van juridische procedures en wettelijke regelingen. Maar is deze angst wel terrecht?
Ondernemen in Amerika is zowel een kans als een uitdaging. Echter, met de juiste kennis en voorbereiding hoef je niet bang te zijn om voet aan Amerikaanse grond te zetten. Het geheim zit hem in de goede voorbereiding en het begrijpen van de Amerikaanse bedrijfscultuur, gewoontes en gebruiken.
Bekijk het exclusieve interview met Manny Schoenhuber en ontdek hoe je jezelf kunt wapenen tegen mogelijke risico’s. Leer hoe je dit op de juiste manier kunt aanpakken en hoe je deze vermeende hindernissen kunt omzeilen. Op die manier kun je succesvol zijn op de Amerikaanse markt zonder wakker te liggen van mogelijke claims en rechtszaken.
Dit interview is geen juridisch advies maar bedoeld als algemene informatie. We geven hier geen juridisch advies en dit is ook geen juridisch document. Raadpleeg een advocaat naar keuze om meer te weten te komen over de specifieke wettelijke vereisten per staat en land.
Video
De uitgeschreven versie van het interview
Erik Broekhuijsen: Ondernemers die zaken gaan doen in Amerika, die vinden dat in het begin vaak wel een beetje spannend. Want hoe zit dat nou met claims en advocaten? Dat je overal overleg over moet voeren. Daarom ben ik blij dat ik vandaag een Engels sprekende gast heb; Manny welcome, really enjoying you’re here, but you’re from America and you’re a lawyer. Tell me something about it.
Manny Shoenhuber: Little bit of both. Thanks a lot for having me of course, first off. Yeah, I am, I do live in the United States originally from the Munich area in Germany. So as I say, German to US transplant. But yeah, I’m a lawyer. Have been in the United States for 12 years now and help European, predominantly central European companies with their legal needs in the United States.
Erik: Now, what’s the difference between Europe or here, we’re in the Netherlands, Dutch law and American law? Because I’ve seen too many movies, so you gotta help me out here.
Manny: So as a lawyer, you always feel like, yes, you have a legal degree, but sometimes the very first disease I have to treat is what’s called litiga phobia. So I have to somehow have a medical degree as well, because a lot of European companies are afraid to get sued in the United States, which we call the fear of litigation. And it’s very predominant with European companies who come here.
One of the major differences is simply the legal system. In the United States, the legal system is based on British common law, whereas in Central Europe, the Netherlands, Germany, France, Austria, they’re based on the Napoleonic code, the French code. Which means we have a lot of statutes in Europe. In the US the law is usually judge made. We don’t really have a lot of statutes. Everything is more contractual. We discussed that briefly before this meeting.
So whatever parties put into the contracts, that is what governs the relationship between the parties. In Europe, on the other hand, you can fall back on a bunch of statutes. Consumer protection, party protection. Yes, in the US we have UCC, which is the Uniform Commercial Code. But not all states have adopted it. Some states have adopted it in different forms of actions.
And that is kind of the second main difference that Europeans sometimes underestimate when they come to the United States, is that yes, we have federal laws that govern the entire United States. The prime example is immigration, how you get a visa. But then there’s so much independence on the state level, and some states, as you know, are more business friendly. Florida, Texas, Arizona.
Whereas others like New York, California are not so business friendly. So those are the major differences. So companies that say we’re going to the US, they also have to a certain extent, make a decision on which state they use for their operations.
Run it by the Legal Department
Erik: Why do you feel it is that in the Netherlands, you probably have your spouse on speed dial, and in America, I have my lawyer on number one speed dial. Why do we run everything by counsel?
Manny: Yeah, I think number one is a little high, but maybe number two, that’s where my clients put me, jokes aside. But well, there’s always some truth to the litigation aspect of things. So the US is a very litigious society and European companies going to the USD, they have to adapt to the system a little bit, right? And that starts with the legal advice. Companies that don’t get paid from the customers, here in Europe, we’re like, okay, maybe we write it off. We trust them. They’ll pay us eventually.
In the US people are very quick to just file a lawsuit, right? Because you can also dismiss it right away. I filed lawsuits over $5,000 that were owed to clients because sometimes they say, okay, we’ve watched long enough, now is enough. Because it is true that to a certain extent, European companies are sometimes being taken advantage of because US customers know the mentality and you’ll get sued very easily, right?
No harm, no foul, but it takes us Europeans a very long time to actually pull the trigger and say, until here and not any further. So now let me talk to my lawyer, file a lawsuit. That’s on the litigation side. The other important aspect that you mentioned is, why you should have your lawyer on speed dial is the contractual side. Like I said earlier, we have the freedom of contract. Everything that is in the contract governs the relationship between the parties.
So if you agree to something that your lawyer could have reviewed and told you about before you signed the contract, it’s a lot easier to do that. And quite frankly, a lot cheaper as well. If you are in a court fighting over the language of a contract after the fact, you know as well as I, that this is very expensive because legal advice in the US is a bit more expensive than it is in Europe.
Erik: I hear you. And what we see sometimes is it’s too late. People come to you and already they made a mistake. For example, they downloaded a contract from Florida and they tried to apply for it in Texas. Now what’s wrong with that? Right? It’s Google.
Manny Shoenhuber: That’s right. I mean, can’t be wrong, if you’re asking me, but even worse is when they say, okay, I’m using these terms and conditions. For example, the perfect example. I’m using these in Europe. They’re already in English, so I can just adapt them to the United States, not even Florida or Texas or any of those. But there are always legal nuances between different states.
So I always ask my clients, before you put something out there that’s going to get signed or that you are being asked to sign something, just let me take a quick look at it because what reads everybody that does business or the majority of Europeans that do business in the US, they know how to speak English, right? But the legalese, the legal language can mean something completely different than the actual language that you and I are using while we’re having a discussion. So just being aware of that.
And if you’re uncertain, just let your lawyer briefly look at it. Don’t download anything that’s there. I know there’s companies that provide templates. Yes. I always tell my clients, if you have a template, send it to me. I’m looking at it. I’m not starting from scratch, right? Send me what you have, I’ll adapt it to the market and then it’ll be a very cost efficient way of doing it.
Why did I go to law school, right? Because I want to bring value to my clients, just like the CFO, the CEO, they didn’t go to law school, right? They have to do business. So don’t dabble in the legal aspect, especially if it’s a legal system that you may not be used to.
USA Fear of litigation – Angst voor rechtszaken in Amerika
Blocker Entity / Buffer BV
Erik: Now, in the Netherlands it’s called a BV. In America, it’s most of the time an incorporation and Inc or C corp. So they have their entity here, they have their entity there, but they always seem to forget the blocker entity or what we call in Dutch, the “Buffer BV“. Help me out here. Why do you need a blocker entity?
Manny: So one of the biggest fears that we talked about earlier on is the litigation, right? You don’t want to get sued in the United States. And why is that? Because you don’t want to lose all the assets that you’ve built in the Netherlands over 10, 20, 50, sometimes a hundred years, right? But as soon as you do business in the United States, with even worse, your Dutch BV or without a blocker entity, all the assets that the Dutch BV has are on the line.
And sometimes I get contacted from other lawyers out of Europe, Denmark, Netherlands, Germany, because they have a judgment, a court judgment in a Danish or Dutch or German court of law against a US company, and they want to enforce it in the United States. So they called me. This goes both ways. So a lot of companies may think that I do business with a Dutch BV, they can sue me, they’re not going to collect against the judgment anyways, so I don’t have to worry about it.
But no, American court judgment can be enforced in the Netherlands as well. So you want to prevent that from happening altogether. And that is the beauty of a blocker entity. Blocker, it’s a tax term usually, but we adopt it in the legal sense because it blocks the access to any assets that are outside of the US. So any judgment that is awarded in the United States blocks at the border. So it’s not going to come across the Atlantic.
There’s no enforce-ability of it against the Dutch BV. So you just put, at the end of the day, you’re going to have a holding structure, right, when you put in a blocker entity. And that means there’s no assets that can be collected, piercing the corporate veil is also a legal way. Like you’re trying to get through the entities to where your assets are. That’s what we want to prevent from happening as the lawyers.
And it’s all legal, everybody does it, but sometimes there’s a certain hesitancy why we’re not doing it. But a blocker entity is one of the three best ways to protect against potential liability.
Erik: What’s the other two?
Manny: So I always call them the three pillars of limited liability. The first one we just said, entities don’t do business in the United States without a legal entity. Ideally you have a holding structure with a block entity. The second one we’ve also already discussed a little bit are the contracts, right? You want to do business with as bulletproof contracts as possible in the United States, based on US law, adapted to the US legal system. And the third one is a very, very hot topic, as insurance. So if you have those three in place there, yes, you’ll never have a hundred percent protection.
Erik: It’s a good starter package.
Manny: It’s a good starter package.
Erik: Now, what happens if you are both the CEO in your Dutch company and the CEO in your American incorporation, can you protect yourself at that level as well?
Manny: Yes. So there’s different ways of doing it. On the one hand, again, corporate veil piercing, trying to reach personal assets, director and officer liability is a subject, but it’s nowhere nearly as prevalent in the United States as it is in Europe. In other words, getting to directors and officers of liability in the US is very, very difficult. We’re talking about egregious fraud, gross negligence, like the Bernie Madoffs of the world.
And I haven’t had many of those clients yet. So I hope we’re never in that situation, but that’s certainly not one of the things. And the second way to protect against it is directors and officers, liability insurance. A lot of European companies offer that to their executives in the United States in order to have an additional layer of protection. Again, it’s what we just said, you’re never going to have 100% security, but you can add layers of protection to make it easier and make everybody sleep better at night.
Incentive programs, Inflation Reduction Act and on the Technological side the Chips Act.
Partnerships
Erik: Well, we also see a lot happening, and I think in Miami, it’s like eight out of 10 lawsuits at the moment are about partnerships. People tend to sign a master reseller, dealer agreement exclusivity on the trade show with a guy they met on Friday afternoon. So what can you do about that? Do you help them with that as well? Those kinds of contracts?
Manny: What could go wrong is the real question, right? But yes, so I always say, if you have a partnership, joint venture, it’s like a marriage, right? When things go wrong, it gets very nasty and it gets very expensive. And this is where you want to be as protected upfront as possible. Yes, setting up a JV or partnership agreement is a process, right? There’s no standup form that you use, but there has to be some type of discussion with the business owners. What’s important to you? Where do you need the oversight? Who needs ultimate decision making control?
And most of the time, let me just say, get that 50 plus 1% ownership stake so you have all the cards in your hands in order to make the final call. Because when something goes wrong, and of course when people are on the honeymoon stage, nobody could ever foresee anything going wrong, but it does. And those are the nasty business disputes. We actually call them business divorces. So we set up the JV agreements, we set up the partnership agreements, we have a discussion with the client asking what’s important to you.
And then we do the same thing with, hopefully there’s a lawyer on the other side that we can deal with. But yes, we’re actually helping a Dutch company as we speak with that right now in Texas. And they’re, I think, very happy. But yes, it is a process because you have to get it right. Because if you get it wrong, it’s nasty, it’s expensive, and it takes a long time.
Erik: Now we are both in the business of helping European companies enter the United States, do business, make money, maybe live in the United States with the correct Visa. But what do you see are fast moving groups at the moment? What kind of entrepreneurs want to grow there?
Manny: So a lot is tied right now to renewable energy, I would say, because as you know, we have various incentive programs, Inflation Reduction Act, then on the Technological side, Chips Act. So that’s federal government incentives. And European companies, especially from the Netherlands and Denmark, are in a prime position to take advantage of those because they have the expertise.
Then looking at Eindhoven and all these areas, chips, tech, technological advantages, but then the third group, and that’s still the boilerplate manufacturers, family owned businesses who’ve been around, who have this one special product that is great for Americans, consumers working in the energy industry, working in the automotive industry batteries.
So it’s always a mix of industries, but I would say it’s still not that fancy, right? Look at the European economy, what are we good here in Europe? Those are the successful European companies. In the US as well, just right now, because of the incentives that you get in the United States, it’s a lot tied to renewables, developing technologies, computers, all those. Engineering, I would say.
Erik: Well, we started a little chat here about having your lawyer on speed dial, so that’s probably the number one tip I have. But what would be your number one tip for entrepreneurs coming to the United States?
Manny: So the best way for me to describe it is a mentality question, right? It doesn’t really have anything to do with the legal aspect, because the beauty about my job, similar to you, is we see many different companies coming to the United States. Some are very successful, others are not so successful, and there is a little bit of a secret sauce, so to speak, on what makes a company successful. And most of the time it’s the mentality.
You know, I’m not going to name the company, but a very famous sports article manufacturer calls it, just do it. That’s the American mentality. And I actually have to say that the Dutch are very good at that. They say, okay, well let’s just do it. We’ll figure it out along the way. Whereas the Germans, I can say that as a German, they’re very, oh, we got to think about this, we’re going to think about that. So sometimes the Americans are just about, just do it.
We’ll figure it out as we go. And this is the mentality that gets you, in my opinion, to the next level in the United States. You can’t plan for every eventuality. You want to be as prepared as you can. You want to have the right checks and balances in place, but at the end of the day, just do it. And you are there to support them. I’m here to support them. So are other advisors, and then everybody’s working as a team.
Erik: Exactly. Here to help. And our last question, is it true that at the end of the day, it’s just business that you get sued on Monday, but you can talk about the new Deal with the same client on Tuesday?
Manny: Oh, that happens all the time, yes.
Erik: : So don’t be scared.
Manny: Don’t be scared. Long-Term business relationships. If you have a great product, which a lot of European companies have, better than what the American market already knows, the Americans will want to do business with you. So no hard feelings sometimes it’s just business.
Erik: Well, thank you Manny. Thank you for all these questions. And like I said, you’re still on my speed dial. My wife is at one, but I’ll keep you at number two.
Manny: I’ll take number two any day. Thank you for having me. It was a lot of fun.
Erik: Appreciate it.
Contact gegevens Manny
Manny Schoenhuber
Attorney at Jackson Walker LLP
Houston
To contact Manny
https://www.jw.com/people/manny-schoenhuber/
Lees ook Manny’s boek te verkrijgen op Amazon:
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