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Excellence in Compliance: Compliance and U.S. Law

Cross-national law analysis has become an integral part of compliance: The scope of U.S. law is broad, and the consequences are far-reaching. If a company violates U.S. law, it not only faces harsh penalties and even more severe damages, but, in the worst case, its employees can be imprisoned. In addition, the U.S. authorities are much better placed to collect evidence than their counterparts in Switzerland. The New York State Bar Association (NYSBA) is familiar with all areas of U.S. law that can present problems for Swiss companies. At this “Excellence in Compliance” event on 10 May, highly experienced NYSBA representatives shared their best practices and gave helpful advice on avoiding transnational risks. The event was organized in cooperation with the New York State Bar Association.

Welcome and Introductions

Jay L. Himes, Senior Counsel at Labaton Sucharow / Chair of the International Section at NYSBA, and Professor Patrick L. Krauskopf, Head of the Center for Competition Law and Compliance at ZHAW, began the conference by welcoming all the participants.

Update: CFIUS and M&A Developments

Ilene Knable Gotts, Partner at Wachtell, Lipton, Rosen, & Katz and Joshua R. Cammaker, Partner at Wachtell, Lipton, Rosen, & Katz spoke about U.S. National Security and its impact on transactions. Ilene started the presentation by giving an overview of the relevant acts and CFIUS jurisdiction. Ilene also explained the main factors of the National Security Risk Assessment and gave an insight into CFIUS filing and the CFIUS timeline.

To bring this into a transaction-negotiation context, Josh gave some practical advice about how CFIUS can affect deals. He pointed out the importance of being proactive with communication in critical constituencies. Ilene and Josh ended their presentation by demonstrating the impact of COVID-19 on the CFIUS process.


Update: U.S. Trade Developments in the New Administration

Robert J. Leo, Partner at Meeks, Sheppard, Leo, & Pillsbury and Angela M. Santos, Partner at Arent Fox, discussed U.S. trade developments in the new administration.

Angela gave the participants an overview of U.S. import laws, which included reference to the EU-US dispute over civil aircraft subsidies. In this context, Angela reminded participants of the importance of exercising reasonable care when importing goods to the United States of America and the impact of import laws on consumer prices.

Robert then addressed export laws, reminding his audience of how real and high penalties for non-compliance in this area are. He explained that there are also criminal penalties for exporting items that should not be exported to places that they should not be shipped to. He also talked about the risks of an embargo and several other sectoral sanctions.

Update: FCPA Developments

Martin S. Bloor and Neil Quartaro, both members of Cozen O’Connor, discussed the Foreign Corrupt Practices Act (FCPA). Neil started the presentation by showing a Transparency International map to illustrate how widespread corruption is. After introducing the FCPA and its two key components, Neil explained the definition of a foreign official, not forgetting to outline FCPA coverage and enforcement. Following Neil, Martin drew attention to vigorous enforcement in 2020 and gave an overview of significant 2020 resolutions such as J&F Investimentos S.A. (USD 155 million). He went on to detail enforcement trends for 2021 and beyond.

Update: No-Poach Agreements and Employer Wage-Fixing

Jay L. Himes gave participants an insight into non-competition agreements and how their misuse can benefit businesses at the expense of workers. These agreements hinder a competitive wage structure and prevent specialists from seeking better jobs and higher salaries, which is bad for innovation. He also explained the impact of no-poach agreements outside U.S. legal jurisdiction and highlighted this as a topic for global concern. As a takeaway, Jay gave participants an insight into the dangers of buzzwords and stressed that it was necessary to educate not only H.R. people but also key executives.

Update: Cybersecurity and Privacy

Corey Omer, Partner at Davies Ward Phillips & Vineberg LLP, and Anthony J. Lewis, Special Counsel at Sullivan & Cromwell LLP, provided an update on cybersecurity and privacy. Corey began with a privacy update and offered insights into important provisions of recent privacy legislation in California and Virginia. Anthony then pointed out some steps that companies should take when preparing for and responding to cybersecurity incidents. Corey also discussed critical issues in data breach litigation in the United States and Canada as well as best practices for preserving attorney-client privilege and work product protection when responding to a data breach. Finally, Anthony discussed specific issues arising in ransomware incidents and state-sponsored intrusions, including practical considerations for handing law enforcement agencies in a national cybersecurity investigation.