- Providing risk-based compliance strategies and addressing day-to-day compliance questions.
- Developing and implementing policies and procedures.
- Crafting and delivering compliance training.
- Counseling on international M&A and other transactions, including conducting and supporting due diligence.
- Preparing and managing compliance audits.
- Implementing process enhancements and corrective actions.
- Leading and conducting internal investigations.
- Supporting clients in making voluntary disclosures and notifications to the government.
- Representing clients in government investigations.
- Negotiating with government agencies on settlements and penalties.
Areas of Focus
Whenever a non-U.S. entity seeks to invest in a U.S. company, it is essential to consider whether to notify the Committee on Foreign Investment in the United States (CFIUS) about the transaction. The decision of whether to notify CFIUS has only become more complicated since the passage of the Foreign Investment Risk Review Modernization Act (FIRRMA).
Bass, Berry & Sims’ cross-disciplinary team assists both U.S. sellers and non-U.S. investors determine when a CFIUS notification is needed. When the decision is made to submit a notification, we partner with clients to identify issues that may have CFIUS implications, and address them as early as possible, to ensure a smooth, successful review process. With extensive experience handling international trade issues, government contract questions, antitrust law and general corporate matters, our team focuses on fully understanding each client’s business in order to become a trusted, strategic partner in finalizing transactions. Clients rely on our experience navigating hot-button CFIUS issues, such as:
- Determining when a mandatory declaration is necessary – or strategically warranted.
- Working with healthcare sellers who handle and maintain personal information.
- Managing contracts with sensitive government customers.
- Sellers who are sole-source providers to the U.S. armed forces.
- Offshore drilling assets or pipelines.
- Critical technology or vital technical data transfers.
- Government-owned or –controlled investors.
- Obtaining accurate and complete personal identifier information.
- Real estate investments near U.S. government facilities.
Non-U.S. buyers are facing increasing scrutiny – according to recent CFIUS annual reports, close to half of all matters notified to CFIUS were sent to a 45-day investigation in addition to the standard 30-day review. The extended duration for reviews and investigations established under FIRRMA only amplifies the challenges to getting a deal done. Through effective communication with our clients and with counsel on the other side of the transaction, and with CFIUS itself, we have developed tactics to prevent these extended investigations. But we also have experience managing longer CFIUS reviews and keeping deals alive. In certain cases, this may mean assisting with developing and implementing mitigation measures; in other instances, it may be necessary to craft a public relations strategy.
The U.S. government continues to vigorously enforce export laws and regulations. Large penalties are common – including penalties that limit companies’ abilities to transact in the U.S. market. More U.S. government personnel within more U.S. government agencies are taking an active role in export enforcement. U.S. officials are increasingly cooperating with their non-U.S. counterparts.
Our attorneys understand the pressures that exporters are under. The profits of many government contractors are being squeezed by their biggest customer, the U.S. government. Manufacturing companies are facing increased competition from China, India, Taiwan, Vietnam, and elsewhere. Non-U.S. technology engineers are eager to work with U.S. companies and share U.S. technical data.
Our international trade team can help. Sometimes it is as simple as assisting in the preparation of a license application or an ITAR registration. Other times, we will help a client conduct an EAR and ITAR audit and develop recommendations for compliance enhancements. We routinely partner with clients to prepare and deliver training – whether high-level training for executives or nuts and bolts education for personnel regularly involved in export activity. And we represent clients in front of the government: for one large defense contractor, we conducted multiple investigations and provided support on numerous voluntary disclosures.
FCPA & Anti-Corruption
Perhaps no area of international business compliance has received more attention in the recent past than anti-corruption.
From defense contractors seeking export sales in the Middle East, to manufacturers seeking to import and sell products into Asia and Latin America, to energy companies sending equipment and personnel to West Africa and other parts of the oil patch, to medical device companies seeking to do business with state-owned hospitals and state-employed doctors in Europe, companies must protect against the corruption that often occurs when goods, services or people move across international borders.
It is therefore essential that companies and individuals understand the U.S. Foreign Corrupt Practices Act (FCPA), and particularly the aggressive manner in which the U.S. government is interpreting and enforcing the law: seemingly simple terms – such as “payment,” “foreign official” and “instrumentality” – are being defined much more broadly than their common usage would suggest.
Our trade team works closely with clients to tailor solutions to their most challenging corruption compliance issues. Visit our FCPA Practice page to learn more about the team and our experience providing advice on and conducting investigations of anti-corruption compliance matters.
Just-in-time supply chains rely on goods being imported as quickly and accurately as possible. A misclassification or an underpayment of duties can cause delays, and delays cost money. Even a late filing can lead to penalties. We help our clients handle both the routine import issues that they face, such as communicating with Customs about liquidated damages claims and making petitions and other filings, and on more significant issues such as prior disclosures. We also help steer clients through internal customs reviews and investigations, including matters involving fraud charges. And we collaborate with clients on making country of origin determinations, often working with our colleagues in our Government Contracts Practice to make such determinations for purposes of Buy American Act (BAA) and Trade Agreements Act (TAA) eligibility. We particularly relish the chance to partner with clients on developing manufacturing processes to manage tariffs, country of origin determinations, and other import strategies.
U.S. anti-boycott law is extremely fact-specific. Language in an RFP or Power of Attorney that is permissible under the Commerce Department regulations may be penalized under the Treasury regulations. It is essential to review potentially problematic language carefully and consult the exhaustive guidance that both Commerce and Treasury have issued. We regularly advise clients – including in the defense, energy, engineering, financial services, and manufacturing industries – on whether specific language triggers the anti-boycott provisions, and whether reporting is required. And we have assisted, when it was necessary, to voluntarily disclose anti-boycott provisions not reported to the government in a timely manner.
No area of international trade changes more rapidly than U.S. economic sanctions. In recent years, hot topics have included Cuba, Iran, Russia and Venezuela, as well as designations of prohibited parties in many other countries because of those parties’ involvement in human rights abuses, cyber crime, trade with sanctioned countries, weapons proliferation, and other actions that threaten U.S. national security. Our trade team knows that changing U.S. foreign policy results in a changing compliance landscape.
A host of industries is directly and significantly impacted. For instance, the financial services sector, as it attempts to process millions of cross-border transactions every day, is uniquely affected by U.S. sanctions. Aviation companies, both in the defense and commercial sector, must keep close track of their compliance obligations. Energy companies, with disparate operations around the world, must ensure they understand what they can do – and what they can’t do.
Tactical issues abound as well. For example, we have helped clients consider whether loosening U.S. restrictions on Cuba and Sudan present opportunities, and how to manage the challenges of doing business in Russia. And we have helped non-U.S. companies understand just how far U.S. sanctions jurisdiction extends over those companies’ operations. Our international trade team assists clients with these types of matters as well as the many routine – and less routine – sanctions compliance issues that arise in the context of international business.