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Sheppard Mullin serves clients in the aerospace and defense industry, including major defense contractors and their suppliers, airlines, airports and related service providers.  Our lawyers have deep sector knowledge and are experienced counselors of regulatory, transactional, and complex multijurisdictional litigation matters. Throughout the world, aerospace and defense companies face the same challenges: shrinking defense budgets, highly specialized transaction and financing needs, increasingly complex procurement systems and regulations, rapid global expansion, and contentious private and government disputes and investigations.

Our clients include established aerospace and defense companies, growing middle market businesses, emerging companies, new ventures, and investment banks and private equity firms active in the industry. Our clients demand experienced, comprehensive, and cost-effective support from lawyers who know their business. Our industry focus enables us to fully understand your business and the challenges you face and to provide advice consistent with achieving your business goals. Our lawyers are familiar with the procurement process and budgets on complex defense programs, the financing needs and structures of the industry, and the enforcement priorities of regulators around the world. Whether addressing environmental concerns, anti-corruption measures or export controls, our team works with clients to help them maintain market share and manage relationships with regulators, and other industry bodies.

Our interdisciplinary practice brings together lawyers with the corporate, commercial, and regulatory experience to assist our clients in capitalizing on opportunities and avoiding pitfalls.

We understand the unique business and legal challenges faced by clients in the aerospace and defense industry and that is why clients turn to us when a thorough appreciation of the industry is required to come to grips with issues quickly and efficiently to deliver valuable advice in real time.

Antitrust & Competition

With global competition resources, our EU team in Brussels has more than 25 years of experience representing players in the aerospace and aviation industries, including aerospace companies, airlines, airline caterers, aircraft lessors, Computer Reservation Systems companies, and global travel agencies. We have advised on cartels, follow-on litigation, mergers, State aid, and compliance issues, as well as on any EU aviation regulatory issue, including Open Skies agreements, passenger rights, safety issues, frequent flier programs, noise limitation regulations and much more, including:  

EU Aviation Regulatory

EU regulatory advice to non EU and EU airlines on:

• Open Skies agreements
• Community designation clauses, horizontal agreements
• Passenger Rights – including compensation for denied boarding
• Safety issues, regulation of the safety assessment of third country aircraft using Community airports
• Frequent flyer programs
• Ground-handling services
• Slots allocations
• Noise limitations regulations

National Aviation Regulatory

EU Member States law advice to non-EU and EU airlines on:

  • Obtaining traffic rights
  • Frequent flyer programs
  • Restructuring of the Brussels airport managing body
  • Advising on the setting up and running of operations of a non EU airline in Belgium
            • Corporate
            • Tax
            • Labor law issues (employment issues regarding pilots and flight crews)
  • Post-September 11 measures (security controls and compliance of additional requirements with EU law)

Competition Investigations (Cartels)

• Representing a leading global travel management company in connection with the Commission’s investigation into airline ticket distribution

• Acting for a major airline in the EU air cargo investigation prior to the issuance of a Statement of Objections by the European Commission

• Defending an Asian airline against a Statement of Objections issued by the European Commission in the EU air cargo investigation, and successfully leading to the abandonment of the case

• Successful rejection of a damages action in an airline contribution proceedings against another airline before the UK courts

• Ongoing representation of an Asian airline in a separate standalone damages action in the UK

• Acting for an Asian airline in the EU SkyTeam alliance investigation

• Advised an aerospace company on competition and IP issues raised by R&D cooperation agreements between French aerospace industry members

• Represented an airline carrier in the EU Commission’s price fixing investigation in the air cargo sector. The Commission’s investigation was part of a global investigation by various competition authorities into alleged price fixing, by more than 40 airlines, of fuel surcharges in the airfreight sector. A decision was issued in November 2010 in which the Commission fined 11 airlines worldwide €800 million. Following our successful defence strategy, our client was not found guilty and was consequently not fined in the EU, unlike many of the other airlines

• Represented an airline carrier to protect them against the disclosure of confidential information in the context of private antitrust litigation in the UK. Dealing simultaneously with the European Commission and the UK High Court to enforce certain confidentiality claims. These issues arise out of El Al’s involvement in the Commission’s air freight investigation

• Assisted a Greek airport in a European Commission investigation in relation to its charges and an alleged discrimination between domestic and non-domestic flights

Merger Control  

Advised a major airline manufacturer and a global airline passenger service provider with:

• joint venture to build a satellite constellation expected to provide global internet broadband service to individual consumers, including multi-jurisdictional merger filing analysis

• high profile worldwide merger operation in the aviation and travel industry under the merger rules of the EU, US and elsewhere

• foreign multi-jurisdictional merger filings in relation to a billion dollar merger with another airline

• contemplated acquisition of a competing catering kitchen operation active in the UK, Europe and Asia by a the world's largest independent provider of airline catering

• acquisition of the in-flight catering unit of an Amsterdam service

• acquisition of supplier of on-board flight equipment including cutlery, trays, amenity blankets

• completed acquisition including the supply of onboard (air and rail) retail point of sale payment facilities for airline and rail customers

• advising a leading global consultancy and major corporate airline customer, as an interested third party in relation to various airline mergers

• advising on privatisation process and its satellite capacity distribution policy

State Aid 

Assisted airlines, airline manufacturers and satellite operators with:

• financing the development of a new product whereby State aid issues are also involved

• drafting an aid regime to compensate the losses incurred as a result of the closure of the Brussels airport due to the terrorist attacks of 22 March 2016

• EU investigation and discussion for an alternative State measure which would not constitute aid

• State aid issues raised by the development of broadband networks

• privatisation process (air transport, ground handling and aircraft maintenance), from the design of the process to its notification and approval by the Commission

Compliance 

• Advised a global lessor of aircrafts in relation to a competition compliance workshop to the company’s European management, sales and business development teams at their European headquarters.

Corporate

We represent aerospace and defense companies that range from private to public companies and from startups and emerging businesses to international corporations.  We provide general business legal advice, assist in structuring and implementing major transactions, prepare agreements to address unique business arrangements and consult with clients to resolve major business and ownership issues.  We handle such matters as SEC compliance; mergers and acquisitions; initial and later stage venture financings; leveraged buyouts and recapitalizations; public offerings; the registration, sale and termination of franchises; partnership formation and related transactions; and corporate partnering, joint venture and other strategic alliance arrangements.  Because of our diverse client base, we have experience representing substantial entities in complicated multinational and multi-state transactions, as well as advising smaller and emerging clients on the full spectrum of business matters.

Our team contains a savvy and talented group of M&A attorneys that "do deals" throughout the United States and overseas.  We have extensive experience in advising clients ranging from individuals and small privately held businesses to private equity firms and multinational public corporations on all types of M&A transactions, including mergers, purchases and sales of stock and assets, management buyouts, recapitalizations and other corporate restructurings.  Our attorneys have been involved in transactions which have been both friendly and hostile, have advised both foreign and domestic participants on cross border transactions and have utilized a myriad of acquisition structures and forms of consideration to help accomplish our clients' goals.

We have also been engaged on numerous occasions to serve as special counsel to boards of directors and to independent director committees. 

Employee Benefits and Executive Compensation

Our team works with both public and privately held companies who are faced with creating compensation programs for employees and executives in order to attract and retain crucial talent.  Many employers have learned that to effectively grow their companies, they must find ways to compensate employees that contribute to the overall success of the company.  We draft stock option and compensation plans, assist employers in establishing procedures for administering stock compensation plans and advise employers regarding stock compensation plan compliance.  We also assist employers in developing tailored bonus and commission plans that are based on rewards for contribution and increased revenue of an organization. We advise on all aspects of qualified and nonqualified retirement plan and employee benefits matters including defined contribution and benefit plans, profit sharing and 401(k) plans, supplemental executive retirement plans ("SERPs"), and employee Stock Ownership Plans ("ESOPs").

Finance

Because the infusion of capital is one of the pillars of success for many businesses, all industries are dependent upon the lender/borrower relationship.  However, not all industries are the same, and many require very specific knowledge of specialized laws, deal structures and the like.  In addition to our broad and deep general financing skill, Sheppard Mullin offers finance and lending attorneys with expertise in the aerospace and defense industry.  We represent the interests of business borrowers in financial transactions including the following:

  • Syndicated bank loans for large public (or private) company clients
  • Acquisition financing for strategic acquisitions by corporate clients
  • Acquisition financing for financial acquisitions by private equity clients
  • Working capital loans for corporate borrowers
  • Public or private note/bond issues
  • Leveraged recap transactions
  • Asset based financing for working capital and acquisitions
  • Seller financing in M&A transactions
  • Bridge loans to major customer/supplier or other business partner
  • Letter of credit transactions
  • Distressed company sales through Article 9 public and private foreclosure sales or Chapter 11 or assignment for the benefit of creditor proceedings
  • Lead or local counsel in multi-jurisdiction transactions including cross-border transactions
  • Opinion letter work under California, New York, D.C. and Illinois law

Our knowledge of market customs and practices, together with their experience representing all sides of financing transactions, allow them to effectively assist clients in structuring and negotiating complex debt deals.  Our understanding of very specific and specialized needs of the aerospace and defense industry allows us to provide clients with a resourceful and economical approach to avoiding pitfalls, resolving challenges, capitalizing on opportunities and thus, successfully closing the transaction at hand. We zealously represent our borrower/issuer clients while preserving a solid and productive relationship with the lenders and underwriters on the other side of the transactions.

Government Contracts

We have decades of experience representing major aerospace and defense companies that do  business with the federal government.  We also have extensive experience representing entities in the transportation sector and other industries in administrative and judicial challenges to federal and state agency decisions, rulemakings and investigations. Our attorneys are experienced in a wide variety of government contract issues and disputes.  We have successfully advocated our client's position on a variety of challenges, including cost and cost accounting challenges and audits, termination claims and bid protests, prime and subcontract disputes, as well as civil and criminal False Claims Act litigation, antitrust and intellectual property claims as applied to defense, electronics, aerospace, transportation and other industry enterprises.

Our team has deep and broad capability conducting assessments of corporate compliance programs intended to satisfy required statutory and regulatory mandates. We have a sizeable background in performing internal investigations related to possible violations of federal statutes and regulations. We also have, on multiple occasions, successfully challenged user fees that have been unlawfully imposed by the federal government.

Labor and Employment

Our team has expertise in all matters affecting the workplace, including wage and hour, class and collective actions, discrimination, harassment, retaliation, employment agreements, executive compensation, layoffs, and ERISA.  Additionally, our immigration and international labor practices provide global organizations with support within the US and abroad. With our knowledge and commitment to service, our clients view us as an extension of their in-house legal departments.

Intellectual Property

Our work in the aerospace and defense industries includes drafting and prosecuting comprehensive patent applications, evaluating and rendering opinions about existing and prospective patent portfolios, and defending and enforcing patents in court. We also secure and enforce new product names, and negotiate contracts, licenses, export agreements, and technology transfer agreements.

Litigation

Our attorneys handle a range of complex litigation and arbitration matters for aerospace and defense firms in both state and federal court. In this connection, we have represented clients in matters involving both state and federal agencies. We have also represented clients with respect to complex government and commercial contract disputes, including bid disputes, contingent payment claims, liquidated damages claims, back charge and change order claims, construction defect claims, bond claims, and insurance coverage disputes. Our experience in such matters can often help bring about early and successful settlement of disputes. But if litigation is necessary, you can count on our experienced trial attorneys to vigorously represent your interests.

Real Estate

Our team has extensive experience in the representation of clients in real property leasing, and  purchase and sale transactions.  We negotiate and document real property acquisitions and dispositions, and regularly assist our clients in conducting the "due diligence" investigations required for purchase and sale transactions.  This work includes investigations regarding the environmental and physical condition of real property and improvements, lease review, comprehensive review of all related title, land use, zoning issues and contractual obligations.

We also represent both landlords and tenants in commercial leasing transactions.  We negotiate and prepare special purpose high rise ground leases for urban high rise buildings, corporate headquarters, campuses and free standing retail facilities.  We also negotiate leases with the United States General Services Administration, as well as with many state and local government agencies.

We counsel clients in connection with site assessments prior to purchasing, selling, leasing or lending secured by real property.  We also negotiate and document remediation activities, both with private parties and with governmental authorities. We represent clients in connection with CERCLA enforcement actions, clean-up and abatement orders, underground storage tank regulation, removal and remediation of hazardous substances, hazardous waste storage and transportation, the permitting of facilities which handle or store hazardous waste and private contamination litigation.  We have also represented clients in proceedings before the Air Quality Management District Boards and have counseled clients with respect to asbestos removal procedures and asbestos related injury and abatement cases.

Tax 

We assist clients in structuring transactions and planning business affairs in order to reduce income, sales, transfer, property and other taxes.  Our goal is to help our clients achieve their business objectives with practical and effective tax reduction planning.  We have also handle tax related matters in state and federal courts and before the United States Tax Court.

Trade Control Compliance

Firms in the aerospace and defense industries are typically subject to a range of export control laws that materially affect their business operations and international sales. The movement of goods and information across borders – whether as finished products, parts and components, demonstration models, or selling aids is subject to an intricate web of regulations promulgated by United States agencies.  We assist our clients to understand and address their most vexing trade controls issues.  We advise clients on complying with U.S. export controls under the ITAR and the EAR, especially complicated issues involving technology transfers.  We counsel clients on complying with U.S. sanctions regulations, which evolve frequently in connection with U.S. foreign policy directives.  We work with clients to understand their obligations under the byzantine anti-boycott rules, and under the many facets of U.S. import law.  And we assist clients with their toughest issues under the FCPA, the U.S. anti-corruption law that is being enforced more aggressively now than ever before.