US Federal Compliance Easier: Know Your Agency

Saving time, money, intangible corporate resources, and even the ‘Machiavellian Litigation Tangle’ can be maximized if the Corporate Counsel takes the time to make the investment and establish relationships with US regulatory agencies. US agencies are not as far removed and unaware of the day-to-day regulatory problems that many corporations are experiencing as might be thought.

Current regulatory environment – what is this? In Summons!

This is an area that is critical to the current complex regulatory scheme. Although the new Administration has committed to drastically reducing these regulatory burdens, it does not really affect a corporation’s perspective and the need to develop a CRP (Corporate Regulatory Philosophy) in focus, management and strategy to maintain compliance. satisfactory.

It does not matter if you are dealing with the USDOJ, the Department of Commerce (DOC) that controls import and export (BIS), the FDA (which also includes “stem cell” research and practice), the FTC, the FCC or Any other Agency should “Know Your Agency” because each has its own distinct internal procedural policies and different aspects of the application and varies and spans the spectrum from highly conciliatory to what many might view as “draconian” and criminal in nature.

If you are involved with major Washington, DC agencies, it helps to have a local DC attorney, but my experience has shown that this is simply not enough. The Company’s Corporate Counsel must be sufficiently familiar not only with the internal workings of the particular DC agency, but must also be able to represent your corporate interests before these agencies in any Jurisdiction.

For this it is advisable to be a familiar name and face with these Agencies and my approach is to make frequent visits and get to know the personalities behind the Titles, develop relationships and reputation with these people and this is the difference between receiving a phone call. of them in advance in lieu of a subpoena.

Why travel to DC – Because, in practice, the hierarchies of these agencies do not return phone calls very often and even when they do it does not result in much progress, but they will entertain a visit to their offices where they feel at ease and comfortable ( although the legal advisor of the company cannot, at first).

For that reason, I make my practice a routine part of visiting, holding meetings and gaining first-hand knowledge of the people and what their Agency considers to be their priorities on a given topic and time.

Compliance: Depending on the agency, the regulatory authority will be different and it is essential to know this information. Some agencies depend exclusively on the Department of Justice, which is a huge and politically motivated entity, so having experience in the Department of Justice will undoubtedly produce great results.

DOJ – DOJ can be painstakingly slow, unresponsive and bureaucratic, but having a relationship with Assistant Attorneys General can dramatically reduce this burdensome impediment. They can also be heavily influenced by the application of sanctions, and some have argued that this element of indigenous agency is controlling and unfair.

It’s easy to come to this conclusion (like the $ 8 billion fine that was imposed on a foreign EU bank) but it’s also true that knowing the Agency, the personalities behind the titles, and * especially having a relationship and reputation Sincere However, the responsibility of “corporate citizenship” will be invaluable since, although there are serious civil and criminal provisions that are available to the Prosecutor, there is also a wide margin of discretion and power assigned to these people and, in the end of the day, I have found them to be understanding and impartial people who live and perform the same daily activities as all of us.

It would be a surprise to most corporations to know that in the last three years the USDOJ, FDA, and the Securities and Exchange Commission told me that I was the first “in-house” attorney to have visited their office and that they dealt almost exclusively with the same local DC attorney.

Internal Compliance: At the other end of the spectrum we have federal agencies that have their own internal regulators and law enforcement attorneys. For example:

The Federal Communications Commission or “FCC”: Since the 2015 reclassification of broadband communications (Internet) has fallen under the jurisdiction of this Title II and Title III agencies, it has grown into an immense authority and jurisdiction. and this involves even “remote” or “short range devices” like Bluetooth, wireless control of home appliances and the like, and there is a lot of regulatory activity regarding “FCC Terminology” like “unlicensed spectrum” or the drop from what are known as the “blanks” that (notably) both Google and Microsoft seek to achieve.

Within this group of Internal Compliance is also included the CPSC or Consumer Product Safety Commission along with the Federal Trade Commission or FTC which derives with its original jurisdiction from the Clayton Act of 1914 on “Unfair Commercial Practices”. Now this agency is located in Bethesda Maryland and is comprised of only 500 employees and has two internal enforcement agencies: the OIG (Office of the Inspector General) and the CLU (Criminal Liaison Unit).

Now this is critical to understanding how these internal agencies operate compared to the Justice Department and can make the difference between a huge fine + sanction and a relatively painless Consent Decree whereby the company agrees to engage in corrective behavior within the specified guidelines and I can attest that it can be incredibly wonderful to work with this Agency and establish official regulatory relationships because believe me when I say “They make the decisions” in their territory.

Department of Energy – DOE – I would be remiss to speak about these limited agencies without touching the DOE. Within this huge agency is the FERC or Federal Energy Regulation Commission and this jurisdictional base is enormous: coal, wind, solar energy, national electricity grids, geomagnetically induced currents (GIC), GMD or geomagnetic disturbances, plant maintenance nuclear power, hydropower power … “phew! It could go on forever, but the important thing to note here is that this area of ​​energy regulation schemes can be complex to the point of appearing almost algorithmic and is True, they can be complex and controversial (See 1., below) But I can say with experience that this agency has a “very compassionate personality” when it comes to law enforcement.

They have neither the time nor the desire to perceive themselves as a “tax alternative.” Their responsibility is, frankly, too important and critical to both our domestic welfare and our National Security, and they well recognize this responsibility. 2. Recently times have found themselves at the crossroads of Public Welfare, National Security, GEOINT (Satellite Surveillance) and as a multi-functional agency with many others.

Know when to ‘defend your position’

Strategy when things “go south”: All that is said here in this short synopsis are the highlights and points of interest to know the agencies, their policies and particular application procedures, whether internal or external ( DOJ) and perhaps most importantly for building relationships. .

But what does a Corporation do when it has become the “target” of an Agency and diplomacy and corrective measures have proven futile and it appears that the Agency is unduly aggressive and appears to intend to impose fines or strict fines and unreasonable and / or severe? sanctions. This is rare but it happens.

This is when the corporate advisor needs a “pre-advance” action strategy to deal with these and adequately protect the legal and financial interests of the company. One option is to make sure you keep your “local playing field” and that means filing an action in Federal District Court in YOUR particular jurisdiction and seeking redress, injunction, or declaratory relief vs. imminent agency action and it is equally important to note that having a reputation that your company can and will take such action is a great deterrent against such action.

The Agency knows that if they are going to force you to appear in the “Ever So Friendly” Court in Washington, DC, your chances are slim. It’s like playing against the house in Las Vegas. Some corporations have argued that the deal is full.

But what would your chances be if you called that agency into federal court in, say, San Antonio or El Paso Texas? I’ll let you decide that for yourself, but believe me your chances of conciliation are much higher in the Independent Republic of Texas in a Dallas Federal Court which is on Pennsylvania Avenue 7 blocks from the White House and the Execution Attorneys of DC we know very well that the Federal Courts of Texas do not fear Washington’s power base and have and will consider its corporate citizens.

Now, do not say here that the DC Courts are not fair and I mean infer to discredit that coming, but the reality is this: there is a political, practical (less expensive) and undeniable advantage of a jurisdictional advantage of a local court and It should be common knowledge that if the corporate body deems it appropriate, it will in fact make the most of its headquarters in the home state. This is a simple and ethically appropriate legal strategy, so use it!

1. For example, there is a provision in Section 215 (e) (3) of the Federal Energy Law: which states: The FERC can order compliance with a Reliability Standard and impose a fine if a user, owner or operator of BPS “has engaged in or is about to participate in any act or practice that constitutes or will constitute a violation of a reliability standard”

2. Power grid disasters: Quebec March 1989 blackout Damage to Salem (New Jersey) generator step-up transformers (1989) October 2003 “Halloween Storm” 1859 “Carrington” event