Cross-Border Enforcement Issues

On July 26, 2023, the U.S. Department of Justice’s National Security Division, the U.S. Department of Commerce’s Bureau of Industry and Security, and the U.S. Department of the Treasury’s Office of Foreign Assets Control jointly issued a compliance note summarizing voluntary self-disclosure policies applicable to U.S. sanctions, export controls, and other national security laws.

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On December 1, 2022, at the American Conference Institute’s 39th International Conference on the Foreign Corrupt Practices Act (“FCPA”) in Washington D.C., Acting Principal Deputy Assistant Attorney General Nicole M. Argentieri (“DAAG Argentieri”) gave a special keynote speech highlighting developments in FCPA enforcement by the Department of Justice (“DOJ” or the “Department”), including with regard to the application of the DOJ’s announcement of corporate criminal enforcement policy priorities in September of this year.[1]  DAAG Argentieri focused on several policy changes and enforcement trends and initiatives using examples from this year’s FCPA resolutions and declination,[2] as well as from the Money Laundering and Asset Recovery Section’s Kleptocracy Asset Recovery Initiative.
Continue Reading DOJ Provides Updates on FCPA and Corporate Criminal Enforcement Trends at International Conference on the FCPA

On September 15, 2022, Deputy Attorney General Lisa O. Monaco (“DAG Monaco”) announced further changes to the enforcement policies and practices of the Department of Justice (“DOJ” or the “Department”) at an event at New York University Law School[1], in particular building on previously announced revisions relating to individual misconduct and corporate recidivism.
Continue Reading U.S. Department of Justice Announces Changes to Corporate Criminal Enforcement Policies

On August 12, 2022, in United States v. Hoskins, No. 20-842 —F.4th—, 2022 WL 330357 (2d. Cir. Aug. 12, 2022) (“Hoskins II”), a three-judge panel from the Second Circuit upheld a lower court decision to overturn the foreign bribery conviction of a former Alstom SA executive, Lawrence Hoskins.  The Court concluded that the trial evidence did not support a finding that Defendant Hoskins was an “agent” of a U.S. subsidiary of the French multinational railway manufacturer Alstom (“Alstom U.S.”).  While highly fact-intensive and likely subject to narrow interpretation in the future, the decision is the Second Circuit’s most recent limitation on the extraterritorial reach of the Foreign Corrupt Practices Act (“FCPA”).  This follows a prior Second Circuit decision in this same case limiting the scope of the FCPA’s extraterritorial reach of conspiracy liability for certain foreign individuals acting abroad.
Continue Reading Second Circuit Upholds District Court’s Rejection of DOJ Attempt to Expand Extraterritorial Reach of FCPA Through Agency Liability

On July 12, 2022, the Brazilian Government published Federal Decree No. 11,129/2022,[1] which amends the regulation of the Brazilian Clean Companies Act (“BCCA”), Brazil’s 2013 Anticorruption Law.  The new regulation came into effect earlier this week, on July 18, 2022, and replaces Decree No. 8,420/2015, which previously regulated the application of the BCCA.

Overall, the new decree resembles past regulation in form and substance, however, it provides additional guidance on the expectations of the Controladoria Geral da União (“CGU”), which oversees compliance with the BCCA, in assessing integrity programs and the range and application of administrative fines for violations of the law.  The new decree also clarifies and details procedural mechanisms for the conduct of investigations and negotiation of leniency agreements by the CGU and Brazilian public prosecutors (Advocacia Geral da União – “AGU”).[2]Continue Reading New Anticorruption Decree Modifies Regulation of Brazilian Clean Companies Act

U.S. federal and state authorities recently announced actions that are designed to give effect to economic measures taken against Russia and hold accountable those who violate U.S. laws.  These developments suggest that U.S. authorities’ focus on enforcing U.S. sanctions and export controls, anticorruption and anti-money laundering laws, and the growing scrutiny of cryptocurrency, will continue.  They also point to further coordination and cooperation between authorities in the U.S. and other jurisdictions in investigating and prosecuting violations of their respective laws.
Continue Reading Authorities in U.S. Take Steps to Strengthen Enforcement of U.S. Measures Against Russia

On February 7, 2022, the U.S. Attorney’s Office for the Northern District of Illinois unsealed an indictment against Hytera Communications Corporation, Ltd. (“Hytera”), a company headquartered in Shenzhen, China, and several individuals, charging each with conspiracy to commit theft of trade secrets.[1]  The indictment’s allegations parallel those made in two civil complaints Motorola Solutions Inc. (“Motorola”) filed against Hytera for theft of trade secrets and patent infringement in the same Court in 2017.[2]
Continue Reading Unsealed Indictment Illustrates Interplay Between Criminal and Civil Liability For Theft Of Trade Secrets

In a decision with potentially far-reaching implications, Alasaad v. Mayorkas, Nos. 20-1077, 20-1081, 2021 WL 521570 (1st Cir. Feb. 9, 2021), the First Circuit recently rejected First and Fourth Amendment challenges to the U.S. government agency policies governing border searches of electronic devices. These policies permit so-called “basic” manual searches of electronic devices without any articulable suspicion, requiring reasonable suspicion only when officers perform “advanced” searches that use external equipment to review, copy, or analyze a device.  The First Circuit held that even these “advanced” searches require neither probable cause nor a warrant, and it split with the Ninth Circuit in holding that searches need not be limited to searches for contraband, but may also be used to search for evidence of contraband or evidence of other illegal activity. This decision implicates several takeaways for company executives entering and leaving the United States, particularly if they or their employers are under active investigation.  In-house counsel in particular should consider the implications of the decision given obligations of lawyers to protect the confidentiality of attorney-client privileged information.
Continue Reading First Circuit Upholds Border Searches of Electronic Devices Without Probable Cause

In recent years, the international tax system has experienced significant change as tax authorities across the globe have adopted and implemented new rules and procedures to respond to the new economy and perceptions of taxpayers arbitraging differences among jurisdictions.
Continue Reading Taxes: The Rules Continue to Change and Tax Authorities Focus on Enforcement

As part of the National Defense Authorization Act for 2021 (the “NDAA”), Congress has passed the most significant U.S. anti-money laundering (“AML”) legislation since the USA PATRIOT Act of 2001, the “Anti-Money Laundering Act of 2020” (“AMLA 2020”).

Although President Trump has threatened to veto the NDAA, the majorities supporting the legislation would be sufficient