Above and beyond our industry understanding, we recognize that practice style is critical to the success of our clients in the food and agribusiness sector. We have a long track record of providing creative advice without “overlawyering” and of obtaining buy-in from clients and their customers in a cooperative, low-key manner. We set out below some of the key areas in which we can be of assistance to clients in this sector.
With more than 200 finance lawyers, Mayer Brown has one of the largest banking and finance practices in the world. We represent most of the world’s largest banks, both domestic and international. The majority of the firm’s 100 largest clients include leading commercial and investment banks, insurance companies, leasing companies and asset-based lenders.
Our financing experience covers the full range of agribusiness activities, including input supply, processing, value-added manufacturing, wholesale distribution and retail. We have also worked on financings involving the full range of agricultural commodities, including grain, sugar, coffee, dairy, chicken, beef, pork, seafood, soybeans, fruits and vegetables, as well as cotton, oilseeds and forest products. This experience includes working with borrowers operating on both a cooperative and noncooperative basis.
Our lending experience with agricultural companies includes cash flow loans, asset-based loans (ABL) and “borrowing base” loans with limited ABL dominion and control concepts. Our ABL and borrowing base deal experience includes establishing eligibility criteria for those assets forming a part of the borrowing base (both domestic and pre-export finance) and standards for imposing appropriate reserves for such matters as PACA liens, non-performance, landlord liens and the like.
Many of our deals involve detailed lock-box and cash concentration mechanics that provide lenders control over cash receipts. We have substantial experience with the management of security interests in a variety of commodities. This includes detailed knowledge as to taking security interests with respect to in-transit agricultural products, whether being shipped by train, truck, barge or international oceangoing vessel. Work in this area has included the treatment of tangible bills of lading and warehouse receipts, both negotiable and non-negotiable, as well as electronic bills of lading and warehouse receipts, which are increasingly the norm in grain, cotton and other commodities. In the last few years, our real estate lawyers have filed hundreds of mortgages in connection with our agrifinance deals and have extensive knowledge of the unique issues arising from securing rural real estate and processing facilities.
Our Agrifinance practice is global in scope, having closed transactions in the United States and countries throughout Europe, Asia, and Central and South America. We are one of the leading law firms in the world for cross-border lending and have substantial experience in structuring cross-border financings.
Whether a matter involves equity and index derivatives, derivatives-linked securities, fund-linked derivatives, commodity-linked derivatives, structured products or other exotic derivatives, our lawyers have experience across all the credit, equity and commodity asset classes. Our team understands the hedging strategies commonly employed for agricultural commodities and how they can be managed as part of larger capital markets financing. Our team has experience across all of the major documentation platforms, including ISDA, FOA, EFET and specific commodity trading documentation, such as for the Zeebrugge Hub and Forward Freight Association.
Corporate and Capital Markets
Mayer Brown represents many of the largest food and agricultural companies in the world. We regularly represent issuers, underwriters, placement agents and selling shareholders in a wide variety of equity capital markets transactions, including public offerings and private placements, stock exchange listings, rights offerings, open offers, offerings of depositary receipts, private investments in public equities, spinoffs, exchange offers, capital reorganizations, share buy-backs and de-mergers. In addition, we regularly advise corporate issuers in connection with debt regulation B issuances that are listed on the major UK, other European, Asian and US exchanges.
Mergers & Acquisitions and Antitrust
Our M&A practice regularly advises food industry and agriculture clients around the world on M&A transactions, including investments, joint ventures, divestitures, management and other buyouts, and reorganizations. We routinely handle transactions ranging in size and complexity from multibillion dollar, cross-border transactions to mid-sized and smaller transactions within a single national or regional market.
We have substantial experience advising food and agricultural companies in antitrust and competition issues around the world. Our antitrust and competition lawyers are a critical component of our ability to provide a full range of services to our M&A clients, and they enable us to provide “one-stop” advice in connection with complex, multi-jurisdictional M&A matters.
Government & Global Trade
With long-standing relationships with policymakers in capitals around the world, lawyers in our Government & Global Trade group assist multinational companies in identifying promising foreign markets and developing entry strategies that overcome market obstacles. We work closely with bilateral, regional and multilateral institutions, including the World Trade Organization, the World Customs Organization, the European Union, the Asia-Pacific Economic Cooperation forum and the Organization for Economic Cooperation and Development, to address unfair or illegal trade barriers, build international business coalitions and promote business-friendly trade practices.
Among the internationally recognized lawyers on our team are a former United States Secretary of Commerce, two former United States Trade Representatives, a former European Union Ambassador to the United States and a former Member of the United States Congress, as well as former senior United States trade negotiators and senior trade officials. Such credentials give us the kind of credibility with senior government officials that can help clients open markets, comply with trade laws and resolve trade disputes.
Food Industry False Advertising
The food and beverage industry is currently facing a tidal wave of class actions lawsuits attacking food labeling and advertising. Our nationally recognized false advertising practice is at the forefront in this area and has a successful track record in defending against such claims. We accomplish this by creating a unified strategy to handle copycat class actions or private claims piggybacking on a government investigation. We also regularly advise our clients on how to minimize exposure to future false advertising claims.
Our litigation and dispute resolution teams have substantial experience in handling complex-high-stakes litigation matters for agribusiness client around the world. We also advise on systems and controls to combat corporate corruption and comply with the relevant legislation, including the US FCPA and the UK Bribery Act, and conduct internal investigations into allegations of corruption for our clients.
Food & Drug Administration (FDA) Regulatory
We provide a broad range of regulatory and legislative services to agribusiness clients on issues related to US Food and Drug Administration (FDA) and U.S. Department of Agriculture (USDA) compliance. Our team counsels clients in all areas of agribusiness law including product development, product safety, labeling requirements, promotion and advertising, Generally Recognized as Safe (GRAS) standards, product and facility inspections, recalls and other agency enforcement. We work closely with our clients to ensure compliance, including the audit and establishment of the full range of compliance programs, in order to mitigate the risk of enforcement actions or litigation.
Our food and drug team includes lawyers who have decades of experience managing bet-the-company crises such as recalls, and have successfully secured the release of goods in every FDA district and removed numerous domestic and international clients from Import Alert.
Our FDA practitioners have represented food and agricultural clients on compliance, administrative and litigation issues involving nutrition and labeling; meat; poultry; perishable products; animal feed; organic agriculture; transgenic crops; plant pest; animal welfare; various permitting questions; product development; recalls; and international regulation. We leverage our experience working with the FDA and the FTC in order to provide our clients a holistic approach to assessing and managing the complexities of a multi-agency regulatory regime in order to achieve their business objectives.
We develop strategies to advocate our clients’ positions with regard to legislation and proposed rulemakings that affect the food industry, and have been instrumental over many years in shaping legislative and agency policies in numerous areas for the benefit of our clients. With our industry understanding and insight, we anticipate trends and advise our clients on how to remain ahead of the regulatory and policy curves.
Restructuring, Bankruptcy & Insolvency
The global reach of our restructuring, bankruptcy and insolvency team, together with our extensive knowledge regarding PACA lien and other lien perfection and priority issues, enable us to efficiently represent clients in financially distressed agricultural-related situations. We have extensive bankruptcy experience with respect to cash collateral and adequate protection motions, debtor-in-possession financings, exit financings, adversary proceedings and contested plan confirmation hearings, should a consensual resolution not prove practicable. We have also represented successful purchasers of food and agribusiness assets via Section 363 sales in bankruptcy.