International Regulatory Enforcement

CFTC Reaffirms Focus on Foreign Corrupt Practices
In March 2019, the CFTC issued an Enforcement Advisory signaling its plan to focus investigative resources on foreign corruption connected to CFTC-regulated activities. As we reported in an earlier article, this rollout marked the agency’s first foray into a regulatory jurisdiction traditionally occupied exclusively by the DOJ and the SEC. On May 16, 2019, CFTC Enforcement Director James McDonald further described the CFTC’s new mandate, and in the months since the issuance of the Enforcement Advisory, the CFTC has commenced pursuit of its new initiative, issuing document preservation notices and requesting materials in connection with ongoing overseas bribery and corruption investigations previously opened by the SEC, DOJ, and foreign regulators in the energy sector.
A One-Two Punch: The U.S. Government Hits China's Technology Sector
The United States Government took two actions on Wednesday that indicated increased pressure and restrictions on the Chinese telecommunications sector. First, President Trump declared a national emergency that will prevent U.S. companies from transacting with foreign information and communication technology companies that the U.S. government deems to be a national security threat. Second, the U.S. Department of Commerce announced it would place Huawei and 68 affiliates on the Entity List, effectively prohibiting the supply to Huawei of any U.S. goods or technology
Something Familiar, Something New: OFAC’s Compliance Program Framework
The U.S. Department of the Treasury’s Office of Foreign Asset Controls (“OFAC”), the U.S. agency responsible for administering and enforcing economic and trade sanctions has released “A Framework for OFAC Compliance Commitments” (the “Framework”). The Framework outlines what OFAC views to be the five essential components of a Sanctions Compliance Program: (i) management commitment; (ii) risk assessment; (iii) internal controls; (iv) testing and auditing; and (v) training. Companies engaging in cross-border transactions would be well-advised to review and update their compliance programs to ensure that they incorporate these essential sanctions compliance benchmarks.
Clarity or Confusion: New DOJ Guidance for Evaluating Corporate Compliance Programs
On April 30, 2019, the U.S. Department of Justice's Criminal Division released an updated version of its Evaluation of Corporate Compliance Programs, which provides guidance to prosecutors in evaluating a corporation's compliance program. The announcement and publication of the updated evaluation guidance, while anticipated by many, came with no forewarning from DOJ. As such, the question remains: does the new guidance provide additional clarity or just increase confusion with regard to how federal prosecutors will evaluate corporate compliance programs? Upon close review, our assessment is that DOJ's 2019 update takes the next step in providing clarity and a structure to understand what DOJ expects in an effective compliance program.
Not a U.S.-Fits-All-Proposition: Four Key Considerations When Building the Compliance Framework to Go Global with Patient Support—Part I of II
Within the U.S., patient support programs (“PSPs") have drawn increased regulator scrutiny, consistent with their growing importance in the healthcare sector, where it is increasingly being said, and quite appropriately so, that “the patient is the new healthcare provider." As such, many companies have begun developing compliance programs for PSPs structured entirely on practices, regulations, and enforcement in the U.S. Yet as global healthcare spend continues to increase, multi-national companies throughout the industry are likewise increasing investment in PSPs and other patient support, such as interactions with or funding of patient assistance organizations or other charitable organizations helping patients (together, “Patient Support") outside of the U.S. All too often, however, this increased global investment has not been met with a corresponding globalization of patient support compliance efforts—leaving many companies ill-prepared to mitigate risk or face global regulator scrutiny as they go global with Patient Support. This two Part series considers the growth of global patient support, and the global patient support compliance framework required to mitigate the corresponding compliance risks.
Sanctions Compliance Shortfalls Result in $1B Global Enforcement Action
On April 9, 2019, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), U.S. Department of Justice (“DOJ”), the New York Department of Financial Service (“NYDFS”), the New York County District Attorney’s Office, the Board of Governors of the Federal Reserve System, and the Financial Conduct Authority (“FCA”) in the U.K. announced separate settlements with Standard Chartered Bank (“SCB”), a U.K. multinational bank, resulting in an aggregate of over US$1 billion in fines to resolve potential liability arising from transactions that were processed to or through the United States in violation of Iran, Cuba, Sudan, Syria, and Burma sanctions. This global enforcement action and major settlement targeting alleged violations of U.S. sanctions by a non-U.S. financial institution is the latest example of the increasing cooperation among enforcement authorities in and outside the United States focusing on alleged financial crimes by multinational corporations.
Containing Risk and Seizing Opportunity: The In-house Lawyer's Guide to Artificial Intelligence
The rise of artificial intelligence (“AI”) and automated systems will be one of the defining developments of the 21st century. No industry will be untouched and AI is already driving tectonic shifts in sectors ranging from transportation to consumer technology to healthcare to financial services and insurance.
The EU is Launching "INSTEX" to Support Trade with Iran Despite U.S. Sanctions
France, Germany and the United Kingdom—backed by the EU Commission—announced the creation of INSTEX SAS (Instrument for Supporting Trade Exchanges), a Special Purpose Vehicle aimed at facilitating trade between EU companies and Iran, in the attempt to prevent the effects of the snap back of U.S. sanctions targeting Iran.
EU Screening of Foreign Investments
The European Union negotiators reached a political agreement on an EU framework for screening foreign direct investment and introduced an alert mechanism enabling to act on short deadlines and utmost confidentiality.
The Blocking of Digital Currency: A New Phase of Sanctions Enforcement
On November 28, 2018, the U.S. Department of the Treasury's Office of Foreign Assets Control (“OFAC") for the first time published the digital currency addresses associated with specific individuals subject to sanctions. OFAC, the primary agency in charge of administering U.S. economic sanctions programs, has the authority to block property of persons involved in “malicious cyber-enabled activities" originating from outside of the United States and who constitute a threat to national security or the financial stability of the United States. It now has used that authority in a new way: blocking specific digital currency addresses associated with two persons who assisted in a cyberattack.
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