Mike and Brent were honored guests on the FCPA Compliance Report podcast with their podfather, Tom Fox, the Voice of Compliance and founder of the Compliance Podcast Network. They discuss the concept of “secondary tariffs” recently threatened by the U.S. as to Russia’s trading partners (00:44), what would such secondary tariffs as to Russia really mean, and for whom (03:21), how multinational companies should start thinking through the impact of these potential tariffs (04:37), the need to be very, very, very careful about schemes that seem too good to be true (because they are) (06:03), how risk-based compliance can help multinationals evaluate proposed reconfigurations of procurement flows (09:36), where self-certifications by suppliers might not be sufficient (10:22), and then conclude with a deep dive into what False Claims Act enforcement for tariff evasion might look like and how to mitigate enforcement risks by understanding and leveraging the False Claims Act’s “knowledge” element (13:52).

The Compliance Podcast Network: https://compliancepodcastnetwork.net/

The FCPA Compliance Report podcast: https://compliancepodcastnetwork.net/category/fcpa-compliance-report/

More about Tom Fox: https://compliancepodcastnetwork.net/about/

Tom Fox on LinkedIn: https://www.linkedin.com/in/thomasfox13/

More about Brent: https://www.linkedin.com/in/brent-carlson-41ba692/

More about Mike: https://www.linkedin.com/in/mhuneke/

Mike and Brent follow-up on Episode 19’s discussion of “stack sweeps” with a discussion of the current “moment of truth” facing trade compliance teams dealing with high-probability, catch-all enforcement risks as explained in their recent WorldECR (Issue No. 141, July/August 2025) and Dow Jones Risk Journal article, “Anticipating the moment of truth: how to prepare for ‘high probability’ catch-all enforcement.” Specifically, they discuss the recent decision by the U.S. to allow (licensed) sales of certain advanced integrated circuits to China (00:42), their WorldECR/DJRJ article and how the Bureau of Industry & Security (BIS) guidance of May 13, 2025, which emphasized the “high probability” standard and catch-all provisions of the U.S. Export Administration Regulations (EAR), inspired the article (or at least inspired Tom Blass of WorldECR to ask us for an article) (07:10), how the underlying catch-all provisions are not “new” as of May 13, 2025 (10:26), how compliance teams can’t “zero-risk” export controls risk and need to adopt risk-based approaches (12:17), the relevance of the “inchoate” offenses under the EAR, i.e., aiding, abetting, conspiracy, evasion, acting with knowledge, and misrepresentations (13:21), the limitations of end-use and end-user certificates under the May 13, 2025 policy and guidance documents (14:47), their thoughts on the reportedly pending “50% rule” for the Entity List (18:32), the impact of the ability of malign actors, political parties, and military-intelligence actors to exercise influence even without shareholdings (19:25), why the most risky counterparties are those not on the Entity List (20:49), and the three key takeaways in their WorldECR/DJRJ article (24:09). They conclude with another installment of Brent Carlson’s “Managing Up” segment (30:28).

WorldECR: https://www.worldecr.com/

More about Brent: https://www.linkedin.com/in/brent-carlson-41ba692/

More about Mike: https://www.linkedin.com/in/mhuneke/

Mike & Brent’s “Fresh Looks” series: https://www.hugheshubbard.com/fresh-looks

Mike & Brent coin a new phrase in the context of white-collar corporate enforcement, “stack sweep,” to describe the potential enforcement risks--up and down the technology stack--that recent U.S. export controls settlements, policy statements, and guidance portend in focusing on broad end-use or end-user “catch-all” provisions that turn on “knowledge” defined to include “an awareness of a high probability.” Specifically, they discuss how two recent cases are short on facts but long on lessons (or, as Brent says, appear at first glance to be “dogs”) (01:07), discuss the Alpha & Omega Semiconductor (AOS) settlement announced July 2, 2025 (03:19), how reliance on the advice of counsel is as useful as the extent of facts disclosed to counsel (06:09), discuss the Unicat Catalyst Technologies settlement announced by the Bureau of Industry & Security (BIS) on June 24, 2025 and parallel settlements announced by the Department of the Treasury’s Office of Foreign Assets Control (OFAC) and the Department of Justice’s (DOJ’s) National Security Division (NSD) on June 16, 2025 (08:34), the lessons for pre-acquisition due diligence (11:03) including the importance to buyers of testing whether a target’s trade compliance program incorporates risks driving by the full definition of knowledge to include “high probability” awareness (for example, by specifically addressing risks under the catch-all provisions) (15:33), convergence across DOJ, Treasury, and Commerce regarding expectations for corporate compliance programs (17:50), and then Mike & Brent coin the phrase “stack sweep” to describe what would be the equivalent in corporate export controls enforcement to prior “industry sweeps” in corporate FCPA enforcement, in that catch-all, knowledge-driven end-use and end-user enforcement “sweeps” within the tech industry would be “sweeps” up and down the relevant technology stack (20:01). They then conclude with Brent’s back-by-popular-demand segment, “Managing Up” (25:52).

The July 2, 2025 BIS settlement with Alpha & Omega Semiconductor: https://bis.gov/media/documents/e2995-alpha-omega

The June 24, 2025 BIS settlement with Unicat Catalyst Technologies: https://www.bis.gov/media/documents/e2994-unicat-catalyst-technologies-final-order-12-20-2024

The June 16, 2025 OFAC settlement with Unicat Catalyst Technologies: https://ofac.treasury.gov/recent-actions/20250616

The June 16, 2025 DOJ NSD press release with the relevant declination letter (buyer), non-prosecution agreement (target) and criminal guilty plea (former CEO): https://www.justice.gov/opa/pr/justice-department-declines-prosecution-private-equity-firm-following-voluntary-disclosure

For everything you ever wanted to know about the “high probability” standard: www.hugheshubbard.com/fresh-looks

More about Brent: https://www.thinkbrg.com/people/brent-carlson/

More about Mike: https://www.linkedin.com/in/mhuneke/

Mike and Brent propose a new framework for post-resolution third-party independent consultants imposed under corporate resolutions with the U.S. Bureau of Industry & Security (BIS) or monitors imposed under resolutions with the U.S. Department of Justice’s (DOJ’s) National Security Division (NSD) that best promotes underlying national security objectives while also minimizing the impact on the resolving company’s business. Their proposal is based on their prior “Fresh Looks” article with the NYU Law School’s Program on Corporate Compliance & Enforcement (PCCE), “Monitoring What Matters: A Fresh Look Proposal to Government and Industry for How Post-Resolution Oversight Can Best Deny Hostile Actors the Means to Cause Deadly Harm,” from March 28, 2024.

Mike and Brent introduce their prior “Monitoring What Matters” article (00:37), contrast the needs of post-resolution oversight under U.S. export controls with those under the U.S. Foreign Corrupt Practices Act (FCPA) (01:52), and then explain why traditional concepts of what a post-resolution independent monitor or consultant should do miss the mark (02:38), how the compelling need to move quickly could justify imposing key milestones at just 3 and 6 months, with completion in one year (04:56), that this shortened timeframe can be achieved by leveraging the “awareness of a high probability” standard of knowledge under the U.S. Export Administration Regulations (EAR) (05:56), how battlefield risks should drive prioritization (09:28), how third-part independent consultants should be leveraging what is likely, for many companies already on the front lines of U.S. export controls (e.g., by being part of the leading-edge AI ecosystem), a robust compliance program that was likely further enhanced during the preceding government investigation (11:11), how companies and any post-resolution independent consultant or monitor should think about where and how to draw due diligence lines regarding multi-tier distributor and reseller networks (12:57), the importance in the national security context of thinking about third-party consultant and monitor independence not just in terms of independence from direct client relationships with the subject company but also in terms of independence from the relevant foreign country’s military or intelligence agencies, including prior engagements to lobby the U.S. government (16:38), and the three key takeaways from their prior article (22:04). They conclude with Brent’s ever-popular segment, “Managing Up” (28:08).

The prior “Monitoring What Matters” article: https://wp.nyu.edu/compliance_enforcement/2024/03/28/monitoring-what-matters-a-fresh-look-proposal-to-government-and-industry-for-how-post-resolution-oversight-can-best-deny-hostile-actors-the-means-to-cause-deadly-harm/

The rest of the “Fresh Looks” series with NYU: www.hugheshubbard.com/fresh-looks

More about Brent: https://www.linkedin.com/in/brent-carlson-41ba692/

More about Mike: https://www.linkedin.com/in/mhuneke/

Mike & Brent welcome Erika Trujillo, Managing Director of SEIA (“say-a”), who with her company brings advanced data analytics solutions to solving trade compliance problems. Mike and Brent discuss Erika’s background and the services SEIA provides (00:14); how advanced data analytics can help with export controls risk assessments by, among other things, bringing to bear data from across multiple departments (which is particularly important under U.S. law’s collective knowledge doctrine and the “high probability” standard) (02:10); the importance of differentiating between your company’s “internal data” and the “external data” and of identifying and leveraging what internal data might be sitting within reach (05:03); the importance of contextualization, i.e., taking a holistic perspective at potentially interesting data points that only become informative in the context of other data points, for example data suggesting that EAR99 items that otherwise would not require an export license might be exported for prohibited end-uses or to prohibited end-users (06:53); the need for companies to have the courage to engage with their own data, especially since they are making statements to various governments in any case about their trade flows (09:21); how small- and medium-sized companies can start, step-by-step, to get a handle on their internal data (10:53); how to respond to reports or allegations (i.e., “red flags”) of potential export control violations (12:18); common data pitfalls to avoid (13:51); the importance of prioritization not just in terms of data cleanup projects (14:28); why praying to the accounting platform gods and hoping everything is OK is not sufficient (16:00); the full definition of knowledge (including an awareness of a high probability) and what opportunities that presents for risk-based approaches to trade compliance (16:35); how a data-driven approach to trade compliance can help improve relationships with colleagues in sales and operational functions (18:39); how to overcome the fear of what you might find by taking a deeper dive into your company’s data (19:28); and how a data-driven approach can help with c-suites and boards of directors (20:13). We conclude with a surprise twist in the ever-popular segment, Brent Carlson’s “Managing Up” in exploring Erika’s mission and purpose in co-founding SEIA.

More about SEIA: https://www.seiatech.com/aboutseia

Contact or Book a Demo with SEIA: https://www.seiatech.com/contact

Contact Erika: [email protected]

More about Brent: https://www.linkedin.com/in/brent-carlson-41ba692/

More about Mike: https://www.linkedin.com/in/mhuneke/

Mike & Brent’s “Fresh Looks” series: www.hugheshubbard.com/fresh-looks

Mike and Brent follow-up on Mike’s being quoted in Dow Jones Risk Journal regarding the unexpected export control consequences of the Israel-Iran conflict. They discuss the geopolitical context (00:39), the article by Richard Vanderford and Mengqi Sun (01:22), the risk that Iran tries to evade U.S. export controls (and sanctions) by procuring replacement parts and equipment through third-party intermediaries (02:12), the cautionary tale of an Alabama resident sentenced to five years in U.S. federal prison for diverting items to Iran (03:29), the need to be cognizant of “catch-all” U.S. export controls related to ballistic missiles and WMD programs (including nuclear) and those controls reliance on the full definition of “knowledge” to include “an awareness of a high probability” (04:42), increased tracking and investigative activity by the U.S. government (06:19), how companies need to think about responding to “red flags” (06:45), the likely impact of forensic review of battlefield recoveries on requests by Israel and NGOs to companies for assistance in tracing item or component flows to Iran (07:44), and the likelihood of increased, rather than decreased, activity by U.S. agencies as a result of the conflict (09:52). They conclude with another segment of Brent Carlson’s “Managing Up” (12:26).

The Dow Jones Risk Journal article (June 13, 2025) (subscription req.): https://article.dowjones.com/djriskjournal/articles/israel-attack-could-bring-new-business-risks-even-if-not-followed-by-more-sanctions-9f0dab93?mod=risk-compliance_feat1_dow-jones-risk-journal_pos4&_gl=1*eca83t*_gcl_au*OTM2NjQxODc2LjE3NDI1ODkxNDI.*_ga*MTQ0NTg1NTk4LjE3NDI1ODkxNDI.*_ga_K2H7B9JRSS*czE3NTAyMTQ5MjgkbzMxJGcxJHQxNzUwMjE0OTQ4JGo0MCRsMSRoNTM5NTk0NjQx

The Wall Street Journal Morning Risk Report (June 16, 2025): https://createsend.com/t/d-3CAD0099A1F7C65A2540EF23F30FEDED

More about Brent: https://www.linkedin.com/in/brent-carlson-41ba692/

More about Mike: https://www.linkedin.com/in/mhuneke/

Brent & Mike’s “Fresh Looks” Series: www.hugheshubbard.com/fresh-looks

Mike and Brent welcome Tom Blass, Editorial Director of World Export Controls Review (WorldECR) Magazine that is now part of Dow Jones. Mike and Brent discuss with Tom how he and Mark Cusick started WorldECR more than a decade ago to help bridge the gap between law and geopolitics in sanctions and export controls (00:36), the recent acquisition of WorldECR by Dow Jones (04:43), some of the particular challenges Tom and Mark faced in getting WorldECR off the ground (06:30), their realization that they were creating a community (07:12), what Tom has observed in terms of geopolitics and how geopolitics have driven regulatory and enforcement activity (10:13), what Tom looks for in submissions for publication, especially in terms of balancing depth and accessibility (12:57), upcoming WorldECR events in Brussels, London, Washington, and Silicon Valley (16:19), and the direction the sanctions and export control profession is heading (21:05). Then back by popular demand is Brent Carlson’s “Managing Up” segment (24:07).

WorldECR: https://www.worldecr.com/

WorldECR Events Information & Registration: https://www.worldecr.com/events/

About Tom Blass and Mark Cusick: https://www.worldecr.com/about-us/

Tom on LinkedIn: https://www.linkedin.com/in/tom-blass-1886135/

Mark on LinkedIn: https://www.linkedin.com/in/mark-cusick-3b763420/

More about Brent: https://www.linkedin.com/in/brent-carlson-41ba692/

More about Mike: https://www.linkedin.com/in/mhuneke/

Mike and Brent unpack the May 13, 2025, due diligence guidance from the U.S. Bureau of Industry & Security. They describe what happened on May 13 (00:00), the guidance from BIS on General Prohibition 10 and Huawei Ascend chips (03:34), the related BIS policy statement (04:13), and then focus on the BIS “Industry Guidance to Prevent Diversion of Advanced Computing Integrated Circuits” (04:47), specifically the underlying U.S. national security concerns (05:50), relevant key takeaways from Episode 13’s special guest Dana W. White (06:51), the significance of the Industry Guidance’s reference to the WMD and military-intelligence catch-all provisions (08:29), the historical pre-1993 “KYC Guidance” cross-referenced by BIS in the new Industry Guidance (11:53), how the historical “KYC Guidance” is often misunderstood through selective quotation devoid of relevant context (13:34), the new “red flags” identified in the May 13, 2025 Industry Guidance (16:10), the key takeaways of the Industry Guidance (17:55), a warning about over-reliance on the Industry Guidance’s statement about existing end-use certificates (18:47), and the practical implications of the Industry Guidance for trade compliance teams (19:36). They then conclude with the next installment of Brent Carlson’s “Managing Up” (21:26).

BIS May 15, 2025 Industry Guidance: https://www.bis.gov/media/documents/ai-counter-diversion-industry-guidance-may-13-2025.pdf

More about Brent: https://www.linkedin.com/in/brent-carlson-41ba692/

More about Mike: https://www.linkedin.com/in/mhuneke/

Brent & Mike’s “Fresh Looks” landing page: www.hugheshubbard.com/fresh-looks

Mike and Brent welcome Dana W. White, Managing Partner at the Juno Collective, to share her thoughts and analysis regarding China and U.S. export controls based on her long career of public service in a variety of national security-related roles. Mike, Brent, and Dana discuss Dana’s national security background (00:49), what happens “behind the scenes” that leads to U.S. agencies determining national security threats exists (02:28), how knowledge-sharing is both the strength and the Achilles’ heel of free societies (06:11), how U.S. businesses and business leaders play an important part in our national security (07:26), the challenge of finding reliable data points from which to infer export controls compliance risks (09:37), what business leaders should understand about how the relationship between the U.S. and China is different today than when China joined the World Trade Organization (11:21), how Dana and the Juno Collective help clients to understand and mitigate risks (13:46), and the common pitfalls companies face when responding to inquiries by the U.S. Congress (18:45). They conclude with yet another segment of Brent Carlson’s “Managing Up” (20:23).

More about Dana W. White and the Juno Collective: https://www.juno-collective.com/about

Contact Dana W. White: [email protected]

More about Brent: https://www.linkedin.com/in/brent-carlson-41ba692/

More about Mike: https://www.linkedin.com/in/mhuneke/

Brent & Mike’s “Fresh Looks” series: www.hugheshubbard.com/fresh-looks

In a timely episode discussing end-use and end-user controls and how the full definition of “knowledge”--to include “an awareness of a high probability”--runs through those controls, Mike starts by summarizing key developments on May 13, 2025, right before publication, specifically issuance that day of three key guidance documents by the U.S. Bureau of Industry & Security (BIS) on exactly these topics in the context of advanced computing integrated circuits, Huawei, Infrastructure as a Service (IaaS), and data centers (00:00). Mike and Brent then discuss the end-use and end-user catch-all provisions and why they are often overlooked (02:31), how those catch-all provisions apply to real-world scenarios (05:02), why the Entity List is best thought of as a “backstop” to the end-use and end-user provisions (08:21), what to do if a customer or counterparty ends up on the Entity List (10:34), the collective knowledge doctrine and its implications (15:12), how and where to draw the line in risk-based due diligence of distributors and resellers (16:45), the pros and cons of raising an advice of counsel defense (18:49), how boards of directors can best fulfill their duty of oversight (21:11), and the importance of periodic risk assessments that include the potential risks under the “high probability” standard (23:43). Mike and Brent then conclude with Brent’s recurring segment, “Managing-Up” (26:48).

The Three May 13, 2025 BIS Guidance Documents related to Advanced Computing Integrated Circuits:

BIS Policy Statement: https://www.bis.gov/media/documents/ai-policy-statement-training-ai-models-may-13-2025

Industry Guidance: https://www.bis.gov/media/documents/ai-counter-diversion-industry-guidance-may-13-2025.pdf

Guidance on General Prohibition 10: https://www.bis.gov/media/documents/general-prohibition-10-guidance-may-13-2025.pdf

"The Blind Men and the Elephant": https://www.linkedin.com/posts/mhuneke_huneke-worldecr-april-2024-blind-men-activity-7218965733731373056-oKHG?utm_source=share&utm_medium=member_desktop&rcm=ACoAAAE_zFwB6ELW6Yitzba7Kt-wYyoqEFq6I6s

More about Mike: https://www.linkedin.com/in/mhuneke/

More about Brent: https://www.linkedin.com/in/brent-carlson-41ba692/

“Fresh Looks” landing page: www.hugheshubbard.com/fresh-looks