Mar. 3, 2021

An Introduction to FARA: Definitions, Exemptions and Increased Risk

Special Counsel Robert Mueller’s investigation, an enforcement audit and a restructuring of staffing at DOJ are among the forces in the last few years that have thrust a once overlooked law, the Foreign Agents Registration Act (FARA), into the spotlight. FARA governs foreign entities’ political activities in the United States and requires “foreign agents” to register with the Attorney General. As David Laufman, a partner at Wiggin & Dana and former Chief of the Counterintelligence and Export Control Section (CES) in the DOJ’s National Security Division, told the Anti-Corruption Report, FARA has some of the “most nebulous, vague provisions in the entire United States code.” In this first installment of our article series on FARA, we look at the history of the law, its provisions and the important exemptions. Future installments will look at the current enforcement landscape, the risks of registering, compliance measures and enforcement on the horizon. See “CFIUS Expands Review Power to Some Non-Controlling Foreign Investment in U.S. Businesses” (Apr. 1, 2020).

What to Expect From the Biden Administration’s New Anti-Corruption Tools

The Biden Administration is widely anticipated to step up white collar enforcement during its tenure. In addition to new political priorities, the new administration has a broad array of new and enhanced enforcement powers and tools to aid its work, particularly in the anti-corruption arena. In a guest article, Paul, Weiss partner Alex Young K. Oh unpacks selected statutory, judicial and policy developments that may aid the new administration’s anti-corruption enforcement efforts. See “Five Takeaways From Congress’ Codification and Extension of SEC’s Disgorgement Authority” (Feb. 3, 2021).

FCPA Evolution Through an M&A Lens: The Compliance Value-Add

M&A touchpoints have played a critical role in the development of FCPA enforcement, guidance and the ever-increasing professionalization of corporate compliance practice. This second installment of a two-part article series by Audrey Harris and Juliet Gunev of Mayer Brown explores how the history of FCPA enforcement and M&A have created a current opportunity for compliance and provide six practical strategies for moving compliance from a company cost-center in M&A transactions to a value driver. See “FCPA Evolution Through an M&A Lens: How M&A Impacted FCPA Enforcement and Guidance” (Jan. 20, 2021).

Preserving the Privilege for In-House Counsel: Internal Investigations and Depositions

Internal investigations involve activities that raise a host of privilege concerns for in-house counsel, including hiring experts, interviewing current and former employees and disclosure to regulators. This second article distilling the takeaways from a recent Strafford panel covers how privilege can be maintained in internal investigations and how to prepare when a litigant seeks to depose in-house counsel. The first article addressed best practices when communicating with in-house counsel and establishing privilege, and how to handle common privilege concerns, such as waivers, auditor reports and mergers. The panel featured attorneys from Venable, Baker Donelson and Bradley Arant. See “Preserving Privilege in Audits and Internal Investigations” (Jun. 24, 2020).

Best Practices for Data Transfers in the Wake of Schrems II

The E.U. continues to be a global leader in the creation of robust privacy protections, including when it comes to the cross-border transfer of personal data. The European Court of Justice directly addressed the appropriate mechanisms to transfer data under Chapter V of the GDPR in Schrems II, invalidating the E.U.-U.S. Privacy Shield and complicating the process of determining the legality of international data transfers. In this guest article, Beckage partner Jordan Fischer details the background of Schrems II and the U.S. response to the decision. She provides four critical steps businesses can take to ensure they are transferring data in a compliant way. See “E.U.-U.S. Data Transfers After the Schrems II Decision” (Aug. 5, 2020).

Brian Rabbitt Joins Jones Day in Washington, D.C.

The former head of DOJ’s Criminal Division joins the firm as a partner, and will focus his practice on high-profile, high-stakes criminal and civil investigations and litigation. For previous coverage of Rabbitt, see our three-part series on 2020 in review: “Big FCPA Numbers Despite a Pandemic” (Dec. 16, 2020); “More Coordination, Fewer Monitors” (Jan. 6, 2021); and “Data- and Culture-Driven Compliance” (Jan. 21, 2021). 

Miller & Chevalier Expands Litigation Bench in Washington, D.C.

Jeffrey Lehtman joins the firm as a member, and will focus his practice on internal and government investigations, regulatory compliance, and complex cross-border litigation. For more from Miller & Chevalier, see “TI’s 2020 CPI Lowers U.S. Ranking and Links Corruption to Healthcare Spend” (Feb. 17, 2021).