Thad McBride

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  • $2 million penalty against Exxon overturned
  • Court concluded that OFAC failed to provide clear notice of violative conduct
  • Companies are at risk when acting in context of ambiguous agency guidance

At the end of December 2019, the U.S. District Court for the Northern District of Texas vacated a $2 million penalty that the U.S. Treasury Department, Office of Foreign Assets Control (OFAC) had imposed against ExxonMobil for alleged violations of U.S. sanctions related to Russia and Ukraine.  OFAC is the U.S. government agency that administers most U.S. sanctions.

This matter has been of interest since the penalty was first announced in July 2017 – read our July 2017 blog post detailing the matter.  As described below, the district court’s reasoning in vacating the penalty against Exxon is worthy of interest, too.

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  • A payment to a government official can take many forms.
  • The SEC charges bank for books and records violation even absent a bribery charge.
  • Industry-wide enforcement is a continuing tactic for U.S. regulators.

On September 27, 2019, Barclays PLC agreed to pay $6.3 million to the Securities and Exchange Commission (SEC) to settle charges that Barclays violated the books and records and internal accounting controls provisions of the Foreign Corrupt Practices Act (FCPA). The Barclays settlement fits a pattern of recent U.S. government enforcement against companies, particularly in the financial services sector, relating to FCPA violations stemming from hiring or providing internships to relatives and friends of government officials.  Penalties have been significant – for example, Credit Suisse Group AG paid a $47 million penalty in 2018 as part of a Justice Department FCPA investigation into their hiring practices in Asia.  We previously wrote about this issue in an August 2015 article about a settlement related to the hiring practices of Bank of New York Mellon.

The Barclays matter is a useful reminder of three things:

  1. What constitutes the giving of a thing of value to a government official is broadly interpreted and goes beyond simply giving money or a gift or other tangible thing directly to an official.
  2. The SEC can – and will – enforce the FCPA when there are deemed to be violations of the books and records provisions of the law, even if no charge of bribery is brought in the matter.
  3. The U.S. government continues to pursue industry-wide enforcement under the (apparently accurate) belief that what one company does in a specific industry is likely something that many companies in that industry also do.

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  • U.S. government continues to impose sanctions on parties supporting Iran
  • One Cypriot and three Panamanian companies sanctioned for connection to Venezuela
  • European bank fined for prohibited transactions involving Sudan

The U.S. Treasury Department, Office of Foreign Assets Control (OFAC), the main U.S. government body that administers U.S. economic sanctions and embargoes, continues to be busy.  In September 2019 alone, OFAC has announced new sanctions designations, new penalties, and new regulations on a nearly daily basis.

Many of these actions are largely administrative in nature.  For example, in the September 4 Federal Register, OFAC announced new U.S. sanctions on Nicaragua.  While the regulations (at 31 CFR Part 582) are in fact new, the prohibitions contained in the regulations are not: the regulations merely implement Executive Order 13,851, which was issued by President Trump in November 2018.

We nonetheless want to briefly summarize three actions taken by OFAC to date in September 2019.  As described below, we think these actions provide useful insight into how OFAC is operating currently.

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  • Virtually all transactions with government prohibited
  • Most transactions with private sector parties still permitted
  • Practical challenges make Venezuela transactions difficult, including for non-U.S. parties

On August 5, 2019, President Trump issued Executive Order 13,884 (EO 13,884), which significantly expands existing U.S. sanctions on Venezuela.

Pursuant to EO 13,884, virtually all transactions with the government of Venezuela are now prohibited.  There are some important exceptions to that prohibition, and those are discussed below.

While this is not an absolute embargo on Venezuela, it is quite close.  And even when a transaction with Venezuela may be lawfully permitted, the practical challenges and the risk of conducting the transaction may make it nearly impossible to complete successfully.

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I am excited to be presenting, along with Bass, Berry & Sims litigation attorney Lindsey Fetzer, a 90-minute CLE webinar hosted by Strafford on FCPA compliance on September 18, 2019 titled, “FCPA Compliance: Meeting FCPA Requirements and Minimizing Liability Risks.”

The webinar will examine the requirements of the FCPA and other anti-bribery laws,…

  • OFAC proposes new reporting requirement for rejected transactions
  • Agency issues guidance on dealing with Iran
  • Additional parties designated under Magnitsky sanctions program
  • Careful diligence of international transactions and business partners is essential

On a regular basis over the past several months, the U.S. Treasury Department, Office of Foreign Assets Control (OFAC) has introduced new sanctions requirements, guidance, and restrictions.  OFAC is the U.S. government agency which administers most U.S. sanctions programs.

Many of these measures have been quite targeted.  For instance, on July 29, 2019, OFAC designated Kim Su Il as a Specially Designated National (SDN) of North Korea.  According to the SDN listing, Kim Su Il is a resident of Vietnam.  Thus the designation, while limited to Kim Su Il, demonstrates one of the challenges of U.S. sanctions compliance: many SDNs reside in or are nationals of countries against which the United States does not otherwise maintain sanctions.

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Bass, Berry & Sims attorney Thad McBride was interviewed for the “Bribe, Swindle or Steal” podcast regarding the corruption, sanctions and compliance challenges associated with doing business in Russia. In case you missed it, I was recently interviewed for the “Bribe, Swindle or Steal” podcast regarding the corruption, sanctions and compliance challenges associated with doing business in Russia.

During the podcast, I discussed compliance issues related to the Specially Designated Nationals (SDNs) list and how challenging it is for companies to remain compliant with the constantly shifting regulations that the United States imposes on U.S. businesses operating in Russia.

I also warned companies considering entry into the Russian market that “just like in any place you’re doing business, but especially in Russia – you need to do a really, really careful diligence review and get as much information as you can.”

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What are "secondary sanctions"? How do they enforce U.S. sanctions & embargoes against non-U.S. parties? Thad McBride explains to the Society of Corporate Compliance and Ethics. Read more.I recently discussed how the United States uses “secondary sanctions” to enforce U.S. sanctions and embargoes against non-U.S. parties. Under secondary sanctions, the U.S. government restricts U.S. companies and individuals from conducting business with non-U.S. companies and individuals because of those parties’ affiliation with a sanctioned business or person.

As I explained, “[Secondary sanctions] are an example of U.S. extraterritorial jurisdiction at its most extreme. Even if there is no U.S. actor, no goods or parts of U.S. origin, no direct connection whatsoever, the U.S. wants to nevertheless strongly discourage non-U.S. companies from doing business with [sanctioned entities] by, for example, restricting their access to the U.S. market.”

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  • Company committed multiple apparent violations of U.S. sanctions on North Korea
  • Penalty imposed in part because of company’s “non-existent” sanctions compliance program
  • Settlement underscores need to address supply chain risks

On January 31, 2019, U.S. Treasury Department, Office of Foreign Assets Control (OFAC)announced a $996,080 settlement agreement with e.l.f. Cosmetics, Inc. (ELF) to settle ELF’s potential civil liability for 156 violations of the North Korea Sanctions Regulations.  According to OFAC, fake eyelash kits that ELF believed to be from China were in fact supplied from North Korea.

Presumably very few Americans awake in the middle of the night worrying that North Korean fake eyelashes pose a threat to U.S. national security.  Yet in pursuing this action vigorously, OFAC made clear that it is willing to seek penalties against any U.S. business that directly or indirectly benefits the North Korean economy.  In announcing the settlement, OFAC highlighted the importance of conducting “full-spectrum supply chain due diligence when sourcing products from overseas, particularly in a region in which the DPRK, as well as other comprehensively sanctioned countries or regions, is known to export goods.”

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CFIUS & the Government Shutdown - Bloomberg LawI commented about the impact the government shutdown is having on deals that require review and approval by the Committee on Foreign investment in the United States (CFIUS).  CFIUS is the interagency committee authorized to review transactions involving foreign investment in the United States to determine the effect of such transactions on national security.

Due…