Brian Fleming

Our article discusses the growing U.S. sanctions risks for Latin American and Caribbean companies. We explain that U.S. sanctions are proliferating rapidly and are being deployed more aggressively in the region, which could put a strain on companies' relationships with sanctions-averse financial institutions and signal an increase in government investigations and enforcement activity that will more closely resemble current enforcement of the Foreign Corrupt Practices Act (FCPA). "Now, armed… Show more

Our article discusses the growing U.S. sanctions risks for Latin American and Caribbean companies. We explain that U.S. sanctions are proliferating rapidly and are being deployed more aggressively in the region, which could put a strain on companies' relationships with sanctions-averse financial institutions and signal an increase in government investigations and enforcement activity that will more closely resemble current enforcement of the Foreign Corrupt Practices Act (FCPA). "Now, armed with sanctions tools focused on human rights abusers and corrupt government officials, the Trump administration may be poised to take a more aggressive approach to sanctions enforcement in the region. Companies with significant cross-border business should be particularly vigilant," Show less

On October 10, 2018, the U.S. Department of the Treasury (Treasury) announced the first pilot program implemented by the Committee on Foreign Investment in the United States (CFIUS or the Committee) under the recently enacted Foreign Investment Risk Review Modernization Act (FIRRMA).

The pilot program, which takes effect on November 10, 2018, expands the scope of transactions subject to review by the Committee significantly to encompass certain non-controlling investments by foreign… Show more

On October 10, 2018, the U.S. Department of the Treasury (Treasury) announced the first pilot program implemented by the Committee on Foreign Investment in the United States (CFIUS or the Committee) under the recently enacted Foreign Investment Risk Review Modernization Act (FIRRMA).

The pilot program, which takes effect on November 10, 2018, expands the scope of transactions subject to review by the Committee significantly to encompass certain non-controlling investments by foreign persons in U.S. critical technologies in certain industries. The pilot program also implements FIRRMA's mandatory declarations provision, a CFIUS first, for all transactions subject to the pilot program. To give the mandatory declarations some teeth, the pilot program authorizes CFIUS to assess potentially massive civil monetary penalties, up to the total value of the transaction, for non-compliance with the filing requirement.

As the initial pilot program under FIRRMA, as well as the Committee's first foray into reviewing certain non-controlling investments by foreign persons, it was inevitable that this announcement would create concern, and likely a bit of chaos, among those companies and investment firms impacted by it most directly. However, the breadth of the industries covered in conjunction with the mandatory declarations and the prospect of millions, if not billions, of dollars in potential civil liability for a failure to file amplifies those concerns considerably. Any company, whether inside or outside the United States, that makes or receives investment in connection with businesses that use or develop U.S. critical technology should consider assessing immediately whether its activities may be covered by the pilot program. Failing to do so presents significant risk, as FIRRMA has broadened CFIUS's enforcement mandate markedly and the current administration may push CFIUS to act more aggressively than it has historically. Show less

On August 13, 2018, the long-awaited, much-debated, Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) was enacted, significantly expanding the powers of the Committee on Foreign Investment in the United States (CFIUS or the Committee) to review, and potentially prohibit, foreign investment that poses a threat to U.S. national security. As detailed in our Trade Compliance Flash following FIRRMA's introduction last November, growing fears about the perceived dangers of Chinese… Show more

On August 13, 2018, the long-awaited, much-debated, Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) was enacted, significantly expanding the powers of the Committee on Foreign Investment in the United States (CFIUS or the Committee) to review, and potentially prohibit, foreign investment that poses a threat to U.S. national security. As detailed in our Trade Compliance Flash following FIRRMA's introduction last November, growing fears about the perceived dangers of Chinese investment in the United States, especially with respect to transfers of sensitive technology and malicious cyber activity, were key drivers behind bipartisan support for the new law. Cybersecurity and data privacy considerations, now both regarded as national security priorities, are also featured prominently throughout FIRRMA.

Despite the clear intent to rein in Chinese investment, and the formal recognition of cybersecurity and data privacy as top-tier national security issues, FIRRMA sweeps much more broadly and it will have far-reaching effects globally on all types of foreign investment in the United States. The new law not only expands CFIUS jurisdiction by diversifying the types of "covered transactions" subject to review, it also introduces new procedural mechanisms that will impact the cost-benefit analysis parties undertake when deciding whether and when to file a notice with CFIUS. Once the law takes full effect, there also will be mandatory filings in certain instances, a first for CFIUS. Additionally, FIRRMA provides the Committee with unprecedented resources and tools to enforce its national security mandate. This latter point seems to signal that Congress and the President expect CFIUS to exercise its jurisdiction aggressively and intervene to police foreign investment more proactively than it has in the past. Show less

Following through on the May 8, 2018 announcement of his decision to cease participation in the Joint Comprehensive Plan of Action (JCPOA), on Monday, August 6, 2018, President Trump issued an executive order (the New Iran EO) reimposing sanctions that had been revoked pursuant to the JCPOA, and, in certain instances, broadening the scope of these sanctions. At 12:01 a.m. on August 7, 2018, pursuant to the New Iran EO, the first wave of reimposed secondary sanctions came back into force, as the… Show more

Following through on the May 8, 2018 announcement of his decision to cease participation in the Joint Comprehensive Plan of Action (JCPOA), on Monday, August 6, 2018, President Trump issued an executive order (the New Iran EO) reimposing sanctions that had been revoked pursuant to the JCPOA, and, in certain instances, broadening the scope of these sanctions. At 12:01 a.m. on August 7, 2018, pursuant to the New Iran EO, the first wave of reimposed secondary sanctions came back into force, as the 90-day wind-down waivers and licenses discussed in previous alerts came to an end. This initial reimposition of sanctions covers diverse sectors of the Iranian economy, including trade in precious and semi-finished metals, transactions involving Iranian sovereign debt, and Iran's automotive sector. While many provisions of the New Iran EO take effect on August 7, 2018, certain provisions—notably, those targeting Iran's financial, insurance, energy, and shipping and shipbuilding sectors—will not take effect until November 5, 2018. Show less

In the Fall of 2016, Venezuela’s state oil company, Petroleos de Venezuela, S.A. (PDVSA), attempted to ease its short-term debt payment crunch by offering to swap $7.1 billion of debt scheduled to mature in 2017 for a new 2020 bond. The swap worked as its new 2020 bond had two key selling points: (1) a coupon of 8.5 percent for the four year period until maturity, and (2) backing by 50.1 percent of shares in PDVSA’s U.S. refining unit, Citgo.

On May 21, 2018, President Trump issued… Show more

In the Fall of 2016, Venezuela’s state oil company, Petroleos de Venezuela, S.A. (PDVSA), attempted to ease its short-term debt payment crunch by offering to swap $7.1 billion of debt scheduled to mature in 2017 for a new 2020 bond. The swap worked as its new 2020 bond had two key selling points: (1) a coupon of 8.5 percent for the four year period until maturity, and (2) backing by 50.1 percent of shares in PDVSA’s U.S. refining unit, Citgo.

On May 21, 2018, President Trump issued Executive Order (E.O.) 13835 which, in pertinent part, prohibits U.S. persons (a term of art that includes U.S. citizens, U.S. permanent residents and companies organized under U.S. law) from being involved in the transfer by the Government of Venezuela (GOV) of any equity interest in any entity owned 50 percent or more by the GOV, as well as related transactions in the United States. E.O. 13835 obviously created a dilemma for owners of the 2020 bond: In the case of a default by Venezuela, the order prohibited U.S. person bond-holders from executing on their interest in Citgo. Worried about precisely this possibility, many of these bondholders contacted the U.S. regulator responsible for the Venezuela sanctions, the U.S. Treasury’s Office of Foreign Assets Control (OFAC), for guidance.

On July 19, 2018, OFAC provided that guidance by issuing General License No. 5., providing in pertinent part that “all transactions related to, the provision of financing for, and other dealings in the Petroleos de Venezuela SA 2020 8.5 Percent Bond that would be prohibited by Subsection l(a)(iii) of Executive Order 13835 of May 21, 2018 (“Prohibiting Certain Additional Transactions With Respect to Venezuela”) (E.O. 13835) are authorized.” Show less

On Tuesday, June 27, the U.S. government revoked the general licenses that had been in effect since implementation of the Joint Comprehensive Plan of Action (JCPOA) in January 2016. The revocation of these licenses, with immediate effect, had been expected since the May 8, 2018 announcement that the United States had withdrawn from the Iran nuclear deal memorialized in the JCPOA. In place of the general licenses, OFAC issued licenses valid through the expiration of the applicable wind down… Show more

On Tuesday, June 27, the U.S. government revoked the general licenses that had been in effect since implementation of the Joint Comprehensive Plan of Action (JCPOA) in January 2016. The revocation of these licenses, with immediate effect, had been expected since the May 8, 2018 announcement that the United States had withdrawn from the Iran nuclear deal memorialized in the JCPOA. In place of the general licenses, OFAC issued licenses valid through the expiration of the applicable wind down period that authorize the wind down of activities previously authorized by the general licenses and made certain conforming changes to previously issued FAQs. However, the June 27 actions have no impact on the schedule for reimposing secondary sanctions, as announced on May 8. Show less

For close observers of the Foreign Agents Registration Act — a formerly modest-sized contingent that seems to grow daily — the June 8 release by the U.S. Department of Justice of over 50 FARA advisory opinions was a watershed. These opinions offer an unprecedented glimpse into how the FARA Registration Unit interprets the act and its implementing regulations, and also provide the FARA bar and potential registrants with concrete, real world examples that shed light on previously murky… Show more

For close observers of the Foreign Agents Registration Act — a formerly modest-sized contingent that seems to grow daily — the June 8 release by the U.S. Department of Justice of over 50 FARA advisory opinions was a watershed. These opinions offer an unprecedented glimpse into how the FARA Registration Unit interprets the act and its implementing regulations, and also provide the FARA bar and potential registrants with concrete, real world examples that shed light on previously murky interpretive questions.

Despite their volume and utility, these advisory opinions are only as revealing as the facts and questions presented by the requesting parties. In other words, many of FARA's interpretive grey areas remain. A repeating mantra in the opinions is that specific facts matter; accordingly, each opinion may only be a detail or two away from a completely opposite result.

For that reason, some commentators have already pointed out that these opinions could create a perverse outcome: rather than enhancing compliance with the act, they could provide a road map for those who hope to avoid registering under FARA. Regardless of the consequences, the opinions make clear that a fine line may exist between an obligation to register and none at all.

Even if the June 8 advisory opinions do not provide all the answers, they unquestionably contain guidance that must be reckoned with in the future. Here are several broad themes and takeaways that legal practitioners and potential FARA registrants should keep in mind. Show less

The U.S. Department of Commerce's Bureau of Industry and Security (BIS) and the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) made headlines this week, announcing both the largest BIS settlement in history and the first OFAC enforcement action of 2018. In doing so, the agencies ended a relative lull in enforcement activity in a year in which significant changes to U.S. sanctions on Iran and Russia have been in the spotlight.

On June 7, 2018, BIS announced a… Show more

The U.S. Department of Commerce's Bureau of Industry and Security (BIS) and the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) made headlines this week, announcing both the largest BIS settlement in history and the first OFAC enforcement action of 2018. In doing so, the agencies ended a relative lull in enforcement activity in a year in which significant changes to U.S. sanctions on Iran and Russia have been in the spotlight.

On June 7, 2018, BIS announced a $1.4 billion settlement agreement with Zhongxing Telecommunications Equipment Corporation and its subsidiary, ZTE Kangxun Telecommunications Ltd. (together, ZTE). The revised settlement is the second historic U.S. government settlement with ZTE and the latest development in the company's export and sanctions-related troubles, coming 15 months after ZTE entered a $1.19 billion combined settlement in March 2017, seven-and-a-half weeks after BIS imposed a denial order against the company for making false statements to the U.S. government, and just three-and-a-half weeks after President Trump's tweet signaling his objection to that denial order. BIS emphasized that this week's settlement contains the "strictest BIS compliance requirements ever," which may create new compliance challenges for U.S. and foreign companies going forward. The BIS announcement also makes clear that the settlement will not be implemented fully until ZTE takes various steps, so U.S. exporters are not yet cleared to deal with ZTE.

The ZTE settlement came one day after OFAC's June 6, 2018, announcement of its $145,893 settlement agreement with Swedish telecommunications company Ericsson AB and its U.S. subsidiary Ericsson Inc. (together, Ericsson), for an apparent violation of the largely terminated U.S. sanctions on Sudan. Show less

On Tuesday, May 22, following widespread disruption to companies in the United States and allied countries resulting from sanctions against Russian company GAZ Group and its subsidiaries, the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) issued temporary sanctions relief in the form of a new general license. This week also saw the issuance of a new executive order expanding the U.S. sanctions against Venezuela, adding to the growing list of important sanctions… Show more

On Tuesday, May 22, following widespread disruption to companies in the United States and allied countries resulting from sanctions against Russian company GAZ Group and its subsidiaries, the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) issued temporary sanctions relief in the form of a new general license. This week also saw the issuance of a new executive order expanding the U.S. sanctions against Venezuela, adding to the growing list of important sanctions developments in the second quarter of 2018. Show less

05.09.2018


On May 8, 2018, President Trump announced the U.S. withdrawal from the Joint Comprehensive Plan of Action (JCPOA) and issued a Presidential Memorandum ordering the U.S. government to begin the process of reimposing all sanctions against Iran that had been suspended since implementation of the JCPOA on January 16, 2016 (Implementation Day). Though no new or previously lifted sanctions became effective concurrently with the president's announcement, guidance issued by the… Show more

05.09.2018


On May 8, 2018, President Trump announced the U.S. withdrawal from the Joint Comprehensive Plan of Action (JCPOA) and issued a Presidential Memorandum ordering the U.S. government to begin the process of reimposing all sanctions against Iran that had been suspended since implementation of the JCPOA on January 16, 2016 (Implementation Day). Though no new or previously lifted sanctions became effective concurrently with the president's announcement, guidance issued by the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) makes clear that sanctions will be reactivated, and licenses issued on or after Implementation Day revoked, on or before August 7 or November 5, 2018 (depending upon the length of the applicable "wind down period").
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Since our last issue, there have been several noteworthy Iran-related developments that demonstrate the United States' increasing focus on Iran, and the Department of Justice's (DOJ's) efforts to prosecute violations of Iranian sanctions:

President Trump continues to criticize the Joint Comprehensive Plan of Action (JCPOA). Although he waived secondary sanctions in January 2018, his recent dismissals of Secretary of State Rex Tillerson and U.S. National Security Advisor Lt. Gen. H.R… Show more

Since our last issue, there have been several noteworthy Iran-related developments that demonstrate the United States' increasing focus on Iran, and the Department of Justice's (DOJ's) efforts to prosecute violations of Iranian sanctions:

President Trump continues to criticize the Joint Comprehensive Plan of Action (JCPOA). Although he waived secondary sanctions in January 2018, his recent dismissals of Secretary of State Rex Tillerson and U.S. National Security Advisor Lt. Gen. H.R. McMaster may bring a permanent shift in policy. The next date for renewal of the secondary sanctions is May 12, 2018.

In February 2018, an Iranian minister revealed that Iran was planning to introduce a cryptocurrency similar to Venezuela's cryptocurrency, the petro. The Office of Foreign Assets Control (OFAC) took aggressive action recently to restrict U.S. access to the petro due to its use as a tool to evade U.S. sanctions and it is very likely that Iran's cryptocurrency could suffer the same fate.

DOJ successfully prosecuted Mehmet Hakan Atilla, an executive at Halkbank, for violating the International Emergency Economic Powers Act (IEEPA) and for money laundering.

DOJ indicted nine Iranian nationals affiliated with the Mabna Institute for cyber-related crimes.

DOJ indicted Iranian national Ali Sadr Hashemi Nejad for evading U.S. economic sanctions against Iran.

Although the future of the JCPOA continues to be uncertain, the DOJ's interest in Iran-related prosecutions will likely continue.
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On Friday, April 6, 2018, the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) imposed another tranche of Russia-related sanctions by adding several Russian government officials and high-net-worth individuals, a state-owned arms dealer, and associated entities to its List of Specially Designated Nationals and Blocked Persons (SDN List). U.S. persons now are prohibited from dealing with the designated individuals and entities and any entities owned by them. In… Show more

On Friday, April 6, 2018, the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) imposed another tranche of Russia-related sanctions by adding several Russian government officials and high-net-worth individuals, a state-owned arms dealer, and associated entities to its List of Specially Designated Nationals and Blocked Persons (SDN List). U.S. persons now are prohibited from dealing with the designated individuals and entities and any entities owned by them. In recognition of the potential impact of the new designations on U.S. business interests, OFAC also issued two "wind down" and divestment general licenses allowing U.S. persons a limited amount of time to extricate themselves from business relationships now prohibited as a result of the new sanctions. Show less

On Monday, March 19, President Trump issued an executive order imposing sanctions on Venezuela's nascent cryptocurrency, the petro, as well as any other digital currency that the Government of Venezuela may issue in the future. Effective immediately, U.S. persons are prohibited from dealing in such currencies. In addition, the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) issued guidance regarding the application of U.S. sanctions to virtual currency, and designated… Show more

On Monday, March 19, President Trump issued an executive order imposing sanctions on Venezuela's nascent cryptocurrency, the petro, as well as any other digital currency that the Government of Venezuela may issue in the future. Effective immediately, U.S. persons are prohibited from dealing in such currencies. In addition, the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) issued guidance regarding the application of U.S. sanctions to virtual currency, and designated additional current and former officials of the Government of Venezuela under Executive Order 13692, issued in 2015, for engaging in public corruption and human rights abuses and undermining democratic processes in Venezuela. Show less

On March 15, 2018, the Department of the Treasury's Office of Foreign Assets Control (OFAC) moved to impose widely anticipated additional sanctions against the Russian Federation by designating five entities and 19 individuals as blocked persons (i.e., subject to asset freezing) and denying entry of the designated individuals to the United States under Executive Order 13694, as amended in December 2016, and Section 224 of the Countering America's Adversaries Through Sanctions Act (CAATSA) in… Show more

On March 15, 2018, the Department of the Treasury's Office of Foreign Assets Control (OFAC) moved to impose widely anticipated additional sanctions against the Russian Federation by designating five entities and 19 individuals as blocked persons (i.e., subject to asset freezing) and denying entry of the designated individuals to the United States under Executive Order 13694, as amended in December 2016, and Section 224 of the Countering America's Adversaries Through Sanctions Act (CAATSA) in connection with "ongoing nefarious attacks emanating from Russia." These designations prohibit any U.S. person from engaging in transactions with these entities and individuals, including transactions involving access to the U.S. financial system. All but one of the entities and five of the individuals had previously been designated under sanctions authorities issued by the previous administration, and the net effect of the new CAATSA designations was to add two individuals to the Specially Designated Nationals (SDN) list. However, in a statement accompanying the designations, Treasury promised additional CAATSA sanctions, thereby keeping alive the atmosphere of uncertainty surrounding those doing business with Russia. Show less

In this article, we discuss the risks public companies face in relation to whistleblower complaints about data breaches and cybersecurity deficiencies. "Public companies increasingly are confronted with whistleblower complaints regarding data breaches, cybersecurity vulnerabilities, and related internal control deficiencies," Barry and Fleming wrote. "If those complaints go unheeded — or, worse, prompt retaliation — companies could be exposed to civil liability in addition to reputational… Show more

In this article, we discuss the risks public companies face in relation to whistleblower complaints about data breaches and cybersecurity deficiencies. "Public companies increasingly are confronted with whistleblower complaints regarding data breaches, cybersecurity vulnerabilities, and related internal control deficiencies," Barry and Fleming wrote. "If those complaints go unheeded — or, worse, prompt retaliation — companies could be exposed to civil liability in addition to reputational damage. The Securities and Exchange Commission has made no secret of the fact that cybersecurity is a top enforcement priority and that its whistleblower program is here to stay." The authors also offer practical steps public companies can take to ensure their compliance and internal investigations procedures are up-to-date to address these issues. Show less

With governments around the globe cracking down on all aspects of the cryptocurrency market, it seems like new regulatory risks arise every day. Add U.S. sanctions to that list.

On Jan. 19, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC), the primary sanctions enforcer in the U.S., announced that any U.S. person dealing in Venezuela’s soon-to-be-introduced cryptocurrency, the petro, could run afoul of U.S. sanctions against the Venezuelan… Show more

With governments around the globe cracking down on all aspects of the cryptocurrency market, it seems like new regulatory risks arise every day. Add U.S. sanctions to that list.

On Jan. 19, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC), the primary sanctions enforcer in the U.S., announced that any U.S. person dealing in Venezuela’s soon-to-be-introduced cryptocurrency, the petro, could run afoul of U.S. sanctions against the Venezuelan government.

Couple that with recent comments from U.S. Secretary of the Treasury, Steven Mnuchin, warning that the U.S. is determined not to let bitcoin wallets become a new version of the Swiss bank account, and it appears that the Treasury Department is poised to wade into cryptocurrency regulation in a major way.

This article provides a brief overview of some cryptocurrency players--including exchanges, investors, and financial institutions--that could be affected and how that impact may be felt. Show less

On Friday, January 12, 2018, President Donald Trump waived secondary sanctions against Iran for a further 120 days, providing a "last chance" for U.S. allies to agree to "fix the terrible flaws" of the Joint Comprehensive Plan of Action (JCPOA). In a statement issued by the White House regarding the waiver, the president also challenged Congress to pass acceptable Iran sanctions legislation. Simultaneously, the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) announced… Show more

On Friday, January 12, 2018, President Donald Trump waived secondary sanctions against Iran for a further 120 days, providing a "last chance" for U.S. allies to agree to "fix the terrible flaws" of the Joint Comprehensive Plan of Action (JCPOA). In a statement issued by the White House regarding the waiver, the president also challenged Congress to pass acceptable Iran sanctions legislation. Simultaneously, the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) announced the designation of 14 entities and individuals under existing executive orders that target human rights abuses, censorship, and proliferation of weapons of mass destruction (WMD). Friday's actions and statements have implications for the future of the JCPOA, the future of Iran sanctions more broadly, and the evolving compliance challenges that U.S. and non-U.S. companies face with respect to U.S. primary and secondary sanctions against Iran. Show less

On November 8, 2017, a bipartisan group of U.S. senators lead by John Cornyn (R-TX), Diane Feinstein (D-CA), and Richard Burr (R-NC) introduced a bill—the Foreign Investment Risk Review Modernization Act (FIRRMA)—that would expand the jurisdiction of the Committee on Foreign Investment in the United States (CFIUS or the Committee) in an effort to modernize the interagency body, update its processes and tools, and improve its ability to combat current and future national security threats. A… Show more

On November 8, 2017, a bipartisan group of U.S. senators lead by John Cornyn (R-TX), Diane Feinstein (D-CA), and Richard Burr (R-NC) introduced a bill—the Foreign Investment Risk Review Modernization Act (FIRRMA)—that would expand the jurisdiction of the Committee on Foreign Investment in the United States (CFIUS or the Committee) in an effort to modernize the interagency body, update its processes and tools, and improve its ability to combat current and future national security threats. A companion bill was introduced in the House on the same day by Representative Rob Pittinger (R-NC).

FIRRMA's sponsors, especially Senator Cornyn, have made clear that this bill is aimed squarely at China. According to the sponsors and other administration officials, foreign investment is being "weaponized" and used to erode the United States' military advantage by transferring sensitive military and dual-use technology overseas. All indications are that Congress believes this problem has grown into a full-fledged crisis and is intent on doing something about it.

It may be months before FIRRMA is ready for serious consideration on the Senate floor, but the proposed updates to CFIUS are worth further scrutiny because they would bring significant changes to a process that has been relatively static for the past decade, since the current regulations were finalized in 2008 following the passage of the Foreign Investment and National Security Act of 2007 (FINSA). These proposed changes also reflect the way CFIUS is working today and highlight the national security threats that are of great interest to the Committee right now. Show less

In this article, Brian Fleming discusses the increasing relevance of the Foreign Agents Registration Act (FARA) in U.S. politics and recent legislation designed to strengthen and expand FARA enforcement, including a September 2016 report on FARA enforcement from the Department of Justice's (DOJ's) Office of the Inspector General, the July 2017 Senate Judiciary Committee on FARA oversight, and two recently introduced bills that would expand the DOJ's FARA enforcement mandate. "FARA was… Show more

In this article, Brian Fleming discusses the increasing relevance of the Foreign Agents Registration Act (FARA) in U.S. politics and recent legislation designed to strengthen and expand FARA enforcement, including a September 2016 report on FARA enforcement from the Department of Justice's (DOJ's) Office of the Inspector General, the July 2017 Senate Judiciary Committee on FARA oversight, and two recently introduced bills that would expand the DOJ's FARA enforcement mandate. "FARA was originally enacted to inform the American public about the ultimate sources of Nazi propaganda disseminated in the United States in the years just before World War II. Modern political influence doesn't come from flyers or leaflets; it comes in the form of tweets, blogposts and closed-door meetings," Fleming wrote. "Keeping the true foreign beneficiaries of such influence hidden from public view is a dangerous gambit with the potential to threaten the integrity of our political system. Potential FARA registrants owe it to themselves to weigh the consequences of less than full transparency when the current climate almost invariably demands more." Show less

In a speech at the White House on October 13, 2017, President Trump announced his administration's long-awaited Iran strategy. As anticipated, he announced that he did not intend to make the certification required by the U.S. Iran Nuclear Agreement Review Act of 2015 (INARA) regarding Iran's compliance with the Joint Comprehensive Plan of Action (JCPOA). The JCPOA, which was entered into by the previous administration and implemented in January 2016, led to the suspension of most U.S. secondary… Show more

In a speech at the White House on October 13, 2017, President Trump announced his administration's long-awaited Iran strategy. As anticipated, he announced that he did not intend to make the certification required by the U.S. Iran Nuclear Agreement Review Act of 2015 (INARA) regarding Iran's compliance with the Joint Comprehensive Plan of Action (JCPOA). The JCPOA, which was entered into by the previous administration and implemented in January 2016, led to the suspension of most U.S. secondary sanctions directed at Iran's nuclear proliferation activities and the removal of most United Nations, European Union, and other sanctions against Iran. The JCPOA generally preserved the U.S. embargo on trade with Iran by U.S. persons, with very few exceptions. Notably, the failure to certify does not constitute a formal complaint under the dispute resolution mechanism provided in the JCPOA that Iran is not meeting its commitments. Rather, the president's action triggers a 60-day period established by INARA during which Congress can consider legislation reinstating statutory sanctions with respect to Iran on an expedited basis. Show less

In this article, Brian Fleming discusses the proactive steps non-U.S. companies can take to manage their risk in the face of the United States' potential withdrawal from the Joint Comprehensive Plan of Action (JCPOA). Following a review of the potential consequences of the U.S. withdrawing from the deal, he discusses the practical steps that non-U.S. companies can take to manage risk and safeguard against future enforcement actions. These steps include, among others, proactively managing any… Show more

In this article, Brian Fleming discusses the proactive steps non-U.S. companies can take to manage their risk in the face of the United States' potential withdrawal from the Joint Comprehensive Plan of Action (JCPOA). Following a review of the potential consequences of the U.S. withdrawing from the deal, he discusses the practical steps that non-U.S. companies can take to manage risk and safeguard against future enforcement actions. These steps include, among others, proactively managing any existing commercial commitments in Iran and intelligently weighing the risks of entering into any new commitments, paying close attention to the pace of U.S. enforcement of secondary sanctions, and for non-U.S. financial institutions, conferring with U.S. correspondent banks and any other U.S.-based financial institutions integral to business functions. "Because it has been less than two years since Implementation Day, your company may be well positioned to adapt to the possible re-imposition of U.S. secondary sanctions," Fleming wrote. "Revisiting your pre-JCPOA compliance policies is a good place to start. However, even if you conclude that a reversion to prior policies would be a sufficient solution, you may be in a position to make improvements." Show less

On September 26, 2017, the Office of Foreign Assets Control (OFAC) announced the addition of 26 individuals and nine North Korean financial institutions, including the Central Bank of the Democratic People's Republic of Korea, to the Specially Designated Nationals List (SDN List). OFAC designated 19 of the 26 individuals and eight of the nine financial institutions under the authority of the September 20, 2017 executive order (the new EO), which authorized extensive new sanctions against North… Show more

On September 26, 2017, the Office of Foreign Assets Control (OFAC) announced the addition of 26 individuals and nine North Korean financial institutions, including the Central Bank of the Democratic People's Republic of Korea, to the Specially Designated Nationals List (SDN List). OFAC designated 19 of the 26 individuals and eight of the nine financial institutions under the authority of the September 20, 2017 executive order (the new EO), which authorized extensive new sanctions against North Korea. OFAC designated the remaining parties under the authority of earlier North Korea-related executive orders issued in January 2015 and March 2016. In addition, OFAC amended its SDN listing for the Foreign Trade Bank of the Democratic People's Republic of Korea to include two additional "a.k.a." aliases and an additional designation authority.
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After much public discussion and scrutiny of the potential security risks presented by Russian-owned Kaspersky Lab (Kaspersky) and the use of its anti-virus and software products in U.S. government systems, the Department of Homeland Security (DHS) announced on September 13, 2017 that all existing Kaspersky products would be removed from U.S. government systems and their use would be discontinued in the future.

Acting Secretary of Homeland Security Elaine Duke issued Binding Operational… Show more

After much public discussion and scrutiny of the potential security risks presented by Russian-owned Kaspersky Lab (Kaspersky) and the use of its anti-virus and software products in U.S. government systems, the Department of Homeland Security (DHS) announced on September 13, 2017 that all existing Kaspersky products would be removed from U.S. government systems and their use would be discontinued in the future.

Acting Secretary of Homeland Security Elaine Duke issued Binding Operational Directive (BOD) 17-01 directing federal executive branch departments and agencies to take actions related to the use or presence of information security products, solutions, and services supplied directly or indirectly by Kaspersky or related entities.
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