Frequently Asked Questions About the Amnesty Program—Major Changes in the Antitrust Division’s January 2017 Update

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In the past, the Antitrust Division has used its “Frequently Asked Questions” piece to announce significant changes in the Amnesty Program. In  November 2008, for example, they made mandatory an explicit admission of criminal wrongdoing. Before then, the applicant need only have reported “possible” criminal activity. FAQs, p.6, fn. 7

The Division’s January 17, 2017, edition makes two more very significant changes: (1) to obtain a marker, counsel must identify the client (FAQs, p.3) and (2) amnesty for executives is not guaranteed under the often-used Type B Leniency. In that situation, “…the Division has more discretion…”( FAQs, p. 22).

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The Table Flip: Trump, the Iran Nuclear Deal, and American Business

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  • A President Trump will have authority to reinstate sanctions lifted by the Iran Nuclear Deal as well as revoke certain authorizations provided for business with Iran.
  • Several economic and geopolitical factors may cause Mr. Trump to reconsider or mitigate his approach to the Iran Nuclear Deal.
  • Companies should prepare to respond quickly to any changes.

Maybe you’ve seen it before, the series of characters that represents upsetting the whole game, flipping the table:

(╯°□°)╯︵ ┻━┻

These days, where words fail, we have emojis.  And here they describe what a President Trump may do to the carefully planned Iran Nuclear Deal. One year after the implementation of the Iran Nuclear Deal (much discussed, at least in our blog), Mr. Trump will take office. At that time, we will see whether his campaign rhetoric against Iran becomes policy action or whether it will be tempered by geopolitical and business realities.

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Embraer’s FCPA Deferred Prosecution Agreement and $205 Million Payment Demonstrate Need for Adequate Internal Controls

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Brazilian aircraft manufacturer Embraer SA (“Embraer”) will pay the United States government $205 million to settle allegations that the company violated the Foreign Corrupt Practices Act (“FCPA”) by paying millions in bribes and falsifying accounting records.  The United States government asserted that Embraer bribed government officials within the Dominican Republic, Saudi Arabia, and Mozambique with millions of dollars to win government aircraft contracts. The government also alleged Embraer paid millions in falsely recorded payments in India through a fraudulent agency agreement.

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FCC Issues New Privacy Rules for Internet Service Providers: Safeguarding Consumers or Lulling Them Into A False Sense of Privacy?

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On Oct. 27, in a vote split along party lines, the Federal Communications Commission (“FCC”) approved a new regulatory regime staking its claim to privacy regulation of both fixed and mobile Internet service providers (“ISPs”) like Comcast, Verizon, and AT&T.  The FCC’s rules follow its decision in the Open Internet Order, released last year and analyzed here, to classify broadband Internet access service as a common-carrier telecommunications service.  The FCC’s new rules are intended to give consumers control over the ways in which ISPs use and share their customers’ private information.  While the FCC has yet to release its Report and Order, the FCC’s Fact Sheet and statements by the commissioners indicate that the new privacy rules in many respects track the proposed rules the FCC put forward earlier this year, which seek to make the FCC the “toughest” privacy regulator in the Internet ecosystem by imposing on ISPs significantly more onerous and restrictive requirements for use and collection of consumer data than the Federal Trade Commission (“FTC”) imposes on its non-ISP competitors.

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Those Three Little Words: OFAC’s Subtle Language Shift Could Create Sweeping Change on Iran Investment

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Article Highlights:

  • Non-U.S. banks can do business with Iran and continue their relationships with U.S. banks.
  • Non-U.S. companies may use proceeds from Iran transactions more freely, including in the United States.
  • OFAC draws a clearer line with respect to the use of Iran-related funds.

After the Iran nuclear agreement, as non-U.S. companies entered into newly-permitted business in Iran, they faced the difficult question of where they could put the money from their Iran business. U.S. law still prohibits U.S. persons (including U.S. banks) from conducting most business with Iran. Among other rules, OFAC regulations and guidance provided that “Iran-related” funds could not transit the U.S. financial system. But the guidance did not state clearly what constituted “Iran-related” funds. For that reason, foreign financial institutions (FFIs) hesitated, even feared, to process Iran-related transactions because of the risks of sending Iran-related funds into the U.S. financial system in violation of U.S. sanctions. However, a new clarification in the OFAC guidance could change all of that (and change it in the way we proposed right here in this blog[1]).

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Brexit, Here We Come (or Go)

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The UK people have voted to leave the European Union. Although there is no constitutional duty to leave the Union as a result, politically this is likely going to happen. Change will not be immediate and happen over time.

Companies are well advised to react quickly to assess the impact Brexit might have on their business and current commercial decisions involving the UK if they have not already done so.

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EU-US Privacy Shield: Brace Yourself . . . or Maybe Not

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On February 29, 2016, the European Commission and United States released the terms of the much-anticipated renewed framework for the transfer, sharing, and processing of European individuals’ data to the United States. The framework replaces the “Safe Harbour” mechanism, which enabled U.S. to transfer data from the EU to the United States by self-certifying that their practices ensured an adequate level of protection for personal data under the EU Data Protection Directive. In October, the “Safe Harbour” framework was declared invalid by the European Court of Justice in the Schrems decision covered earlier in this blog.

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The Day of North Korea Sanctions: The UN Imposes the Toughest North Korea Sanctions Yet While OFAC and State Designate More North Korean Entities

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After weeks of negotiations and a Putin-backed delay, the UN Security Council unanimously adopted resolution 2270 on March 2, 2016, imposing new sanctions against North Korea. According to U.S. Secretary of State John Kerry, the resolution imposes the strongest set of UN sanctions in over two decades. This article provides a summary of the new UN North Korea sanctions followed by an overview of the most recent developments in North Korea sanctions under US law. Continue Reading

The Schrems Decision: How the End of Safe Harbor Affects Your FCPA Compliance Plan

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Like a needle to a balloon, the Schrems decision has drastically altered the data privacy landscape. Who is affected? Everyone – consumers, corporations, employees. But who needs to take action? Any company with offices in the European Union and the United States, any European company that outsources work to the United States (do you know where your cloud is?), and any company that sends information from the EU to the United States. Continue Reading

한∙미 경쟁당국, 경쟁분야 협력에 관한 업무협약 체결 (US and Korea Competition Authorities Signed MOU on Competition Cooperation)

미 법무부(Department of Justice)와 연방거래위원회 (Federal Trade Commission)는 한국 공정거래위원회와 9월 8일 워싱턴, D.C.에서 양국의 경쟁당국간 협력 및 교류를 증진하기 위한 업무협약(Memorandum of Understanding on Antitrust Cooperation)을 체결하였다. 동 업무협약은 건전하고 효과적인 양국의 경쟁법 집행이 시장의 효율적인 운영 및 각국 소비자들의  경제적 복지에 매우 중요하다는 점을 확인하고, 양국의 경쟁당국간 경쟁법 집행시의 협력 및 조율을 통해 각 경쟁당국 단독으로 움직일 때보다 각 경쟁당국이 염려하는 바를 보다 효과적으로 해결할  가능성이 있음을 인정하였다. 또한, 동 업무협약은 더 나아가 양국의 경쟁당국간 경쟁법 및 경쟁 정책에 대한 원활한 의사소통이 경쟁당국간의 관계 증진 및 강화에 기여할 수 있음을 확인하였다. Continue Reading

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