DHS Released a Notice on the Addition of Entities to the UFLPA Entity List

On August 4, 2022, the U.S. Department of Homeland Security (DHS), as the Chair of the Forced Labor Enforcement Task Force (FLETF), formally published the Uyghur Forced Labor Prevention Act (UFLPA) Entity List. The Entity list is a consolidated register of the four lists required to be developed and maintained pursuant to Section 2(d)(2)(B) of the UFLPA.  DHS also released details on seeking changes to the UFLPA Entity List, including requests for removal from the list.

For our previous blog entries on the UFLPA and its implementation, see posts here, here, here, here, here and here.

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Bipartisan Bill Introduced by Senate relating to Uyghur Human Rights Policy Act of 2020

On August 2, 2022, Senators Bob Menendez (D-New Jersey) and Marco Rubio (R-Florida) introduced the Sanctioning Supporters of Slave Labor Act, legislation that would expand the categories of persons that could be sanctioned under the Uyghur Human Rights Policy Act of 2020 (UHRPA).  Rep. Jim Banks (R-Indiana) filed a companion in the House of Representatives.

Currently, UHRPA imposes sanctions on certain entities and individuals named by the President as allegedly having committed certain human rights violations in Xinjiang.  The bill would expand the scope of this reporting requirement to include “each foreign person that knowingly provides significant goods, services, or technology to or for a person identified in such report; and each foreign person that knowingly engages in a significant transaction relating to any of the acts described” in UHRPA.  If passed, the amendments to UHRPA would take effect immediately upon enactment and notably, would apply to all reports issued pursuant to these provisions of the UHRPA, including reports issued before, on, or after such date of enactment.

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Case Update: Dwyer v Fredbar in the Court of Appeal

In our previous article about post-termination restrictive covenants we discussed the High Court case of Dwyer (UK Franchising) Limited v Fredbar Limited [2021] EWHC 1218 as an example of covenants being found unreasonable and therefore unenforceable. Since then, the Claimant has appealed the judgment and the Court of Appeal has once again found in favor of the Defendant.  So what does this mean for those trying to enforce, or avoid, restrictive covenants?

The Facts

The facts of the case are set out in our previous article (link above).  However, in short, the Claimant (Dwyer) is the franchisor of ‘Drain Doctor’, a very large emergency plumbing and drainage franchise.  In contrast, the Defendant essentially consisted of Mr. Bartlett, an individual who ran his business from home and had no previous plumbing experience other than a brief course provided by Dwyer.

The franchise agreement was terminated in mid-2020, and Mr. Bartlett then began to trade as ‘Daily Drains’. Dwyer alleged that this was in breach of the post-termination restrictive covenants in the franchise agreement.  The High Court disagreed, holding that the restrictions were too wide because they effectively left Mr. Bartlett unable to be employed by a similar business for 12 months even if there was no confusion with Drain Doctor, and unable to use his home as a registered address even if operating elsewhere. The judge took into consideration the inequality of bargaining powers between Dwyer and Mr. Bartlett in reaching his conclusion.

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Be Reasonable: The Enforceability of Post-termination Restrictive Covenants

The impact on working arrangements caused by the pandemic has led many workers to re-evaluate what they want from a job, with considerations such as flexible and remote working becoming both more desirable and attainable. This is affecting businesses in all sectors, and the impact it can have not only on a business’s workforce but also on its customer base is far reaching.

One of the most important things to consider when a worker leaves a business is restrictive covenants. These are often contained in the employee’s employment contract, service agreement or, in some circumstances, shareholders agreement. Restrictive covenants are contractual restrictions that prevent individuals from doing certain things after their employment ends. Examples include non-compete clauses (preventing individuals working in competition with their previous employer) and non-solicit clauses (preventing individuals soliciting the customers and employees of their previous employer). Clauses protecting the use of confidential information are also often key. Preservation of a company’s connections, workforce and goodwill is vital for many businesses, so it is important to make sure these clauses bite when necessary. So, how do you do that?

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FLETF Released Strategy Guidance. Join SPB Webinar To Learn More!

Christmas came early this year.  Ok, not really, but the Department of Homeland Security, which chairs the Forced Labor Enforcement Task Force (FLETF) released its strategy guidance on the Uyghur Forced Labor Prevention Act on June 17, 2022—four days ahead of schedule.  Click here to view FLETF’s strategy guidance.

SPB will be hosting a webinar this Thursday, June 23, 2022 at 11am EST to discuss the Uyghur Forced Labor Prevention Act, FLETF’s strategy guidance and best practices for organizations in light of the new guidance. You may register for the event here.

SPB Partner In Law360 Discussing Ocean Shipping Reform Act of 2022

Yesterday, SPB supply chain partner Sarah Rathke was quoted in Law360’s article entitled, “New Ocean Shipping Regs On Deck, But Inland Woes Persist,” discussing the substance and likely impacts of the new Ocean Shipping Reform Act of 2022, which cleared Congress and is expected to be signed into law by President Biden soon.  Read more here.

CBP Issues Operational Importer Guidance Relating to UFLPA

Late Monday, June 13, 2022, Customs and Border Protection (CBP) issued its long-anticipated Operational Importer Guidance to guide importers before the Uyghur Forced Labor Prevention Act (UFLPA) enters into effect on June 21. As a reminder, beginning on that date, CBP will apply a rebuttable presumption that goods coming from the Xinjiang region violate a long-standing ban on the importation of goods made with forced, indentured, or prison labor.  CBP’s guidance is the first of documents expected to be released by federal government officials and provides preliminary background on the expected UFLPA’s process and enforcement, how to request exceptions to the rebuttable presumption, additional resources, and the types and nature of information that CBP may require.  The document is available on CBP’s website here.

No later than June 21, the Department of Homeland Security, which chairs the Forced Labor Enforcement Task Force (FLETF), is expected to release a broader strategy document required by UFLPA.  On June 23, we will be hosting a webinar on the FLETF strategy and CBP implementation efforts.  You can register here. We hope you can join us for this timely discussion.

CBP Hosts Webinar on Uyghur Forced Labor Prevention Act Implementation

On June 1, 2022, US Customs and Border Protection’s (CBP) Office of Trade Relations hosted a webinar on forthcoming implementation of the Uyghur Forced Labor Prevention Act (UFLPA).  Half of the webinar focused on the history, enactment, and text of the UFLPA (discussed in this blog’s previous posts here, here, and here), while the second half addressed questions from online attendees.

Starting June 21st, imports into the United States subject to the UFLPA will be subject to the detention process set out under 19 U.S.C § 1499.  As a result, any goods imported into the United States from the Xinjiang region will immediately be detained, excluded, or seized.  If an importer believes its goods are free of forced labor, then the importer will need to show by clear and convincing evidence that forced labor was not used to make the goods, or any input thereof, no matter how small.

During the webinar, multiple participants asked what evidence would be considered “clear and convincing” to overcome the rebuttable presumption.  While CBP officials did not list the exact evidence needed to overcome the presumption, they did indicate that the bar to rebut the rebuttable presumption will be very high and offered a few pieces of advice—such as submitting any evidence in English—to aid in a quick review of the evidence while goods are detained.

CBP officials also indicated that they will issue strategy guidance relating to the UFLPA within the next week, while the Forced Labor Enforcement Task Force will issue its required guidance on June 21st—the date UFLPA goes into effect.

The launch of UFLPA implementation later this month is expected to lead to significant delays, as CBP holds shipments and works to compile and submit the necessary information to rebut UFLPA’s presumption.  Our firm is working with clients daily to prepare for June 21st, including by reviewing supply chains and advising on CBP and the Forced Labor Enforcement Task Force’s guidance issued to date.

CBP Releases Known Importer Letters and Enforcement Guidance relating to the Uyghur Forced Labor Prevention Act

Earlier this year, U.S. Customs and Border Protection (CBP) released a statement on its website that it would be issuing letters to importers identified as having previously imported merchandise from locations or entities potentially subject to the Uyghur Forced Labor Prevention Act (UFLPA).  Well, CBP stuck to its word and just recently released two sample Known Importer Letters.

One of the letters is specifically directed to Customs Trade Partnership Against Terrorism[1] (CTPAT) members,[2] while the other is directed to other U.S. importers. Both letters notify recipients that they “previously imported merchandise from locations or entities potentially subject to the Act.”  The CTPAT letters also indicate that “subsequent entries of such merchandise may result in, among other things, suspension or removal from the CTPAT program, seizure, forfeiture and/or penalties, or other appropriate action under the customs laws.”  The non-CTPAT letters indicate that “any future entries of such merchandise may be subject to CBP enforcement action, including seizure, forfeiture and/or penalties, or other appropriate action under the customs laws.”  You can view the text of each letter here.

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“Is Your Organization Complying With the US Uyghur Forced Labor Prevention Act?” 

The Uyghur Forced Labor Prevention Act goes into effect on June 21, 2022.  The Act creates a rebuttable presumption that “any goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in the Xinjiang Uyghur Autonomous Region of the People’s Republic of China” (or by an entity included on a list required by the Act) is prohibited from importation into the US under 19 U.S.C. §1307.  What does this mean for your organization?  Click here to find out.