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Export Controls

In recent years, U.S. government agencies charged with export regulation—the Departments of Commerce, State, and Treasury—have stepped up their efforts to enforce existing export regulations and, with help from Congress in 2007, significantly stiffened the penalties associated with the failure to comply with those regulations. This renewed emphasis on enforcement was further bolstered by the Department of Defense (DOD)’s issuance of a DFARS rule that created a contractual obligation for all DOD contractors to comply with U.S. export control laws. The rule did not create any new compliance obligations, but it did impose additional risks and liabilities of failing to fulfill existing obligations. DOD contractors at all levels may now be held liable for breach of contract on top of other penalties in the event they do not comply with U.S. export laws.

MLA provides support to U.S. and foreign companies and universities on export regulation and related matters, including compliance with the International Traffic in Arms Regulations (ITAR), the Export Administration Regulations (EAR), the embargo regulations enforced by the Office of Foreign Assets Control (OFAC), the Anti-boycott Regulations, the Foreign Corrupt Practices Act (FCPA). Our lawyers regularly work with officials responsible for export control in the U.S. Departments of Commerce, State, Treasury and Defense, as well as officials in foreign export control agencies, such as: the Controlled Goods Directorate (CGD) in Canada; the United Kingdom Department of Business, Innovation and Skill (BIS UK); and Australia’s Defence Export Control Office (DECO). We work closely with our clients in determining regulatory jurisdiction, obtaining appropriate licenses and other approvals needed for transactions and investigating and managing regulatory violations when they are revealed, including the preparation of voluntary self-disclosures. We also support our clients in the preparation of regulatory compliance programs and the training of employees in the complexities of these regulations in a manner that promotes client business in a full-compliance environment.

Our clients range from aerospace and defense contractors, to high-tech companies, to manufacturers/distributors of specialty chemicals, to educational institutions and universities as well as freight forwarders. We have significant experience representing and counseling clients on a broad range of export-control related matters as well as handling other international issues that are frequently associated with export controls, which include:

Auditing & Compliance: Our attorneys act as independent export auditors to evaluate a client’s compliance with applicable regulations, including the ITAR, EAR, OFAC regulations, FCPA, and Anti-Boycott regulations; to help companies develop effective export control and compliance programs and effectively manage any regulatory infractions that are revealed in the audit. Audits are either initiated by the companies or mandated by the government.

Due Diligence: The Departments of State and Commerce have no qualms about imposing successor liability and penalizing companies for past export violations committed prior to a merger or acquisition. As a result, export compliance due diligence is not only mandatory, but it must be conducted well in advance of the purchase or sale decision. MLA attorneys also have significant experience with the unique issues that arise with export compliance due diligence reviews/audits in furtherance of a Merger & Acquisition.

Classification & Licensing: MLA assists clients with their entire spectrum of export licensing and commodity classification needs. Our attorneys prepare and submit CJ requests; draft Manufacturing License Agreements, Technical Assistance Agreements (TAA), and Warehouse and Distribution Agreements (WDA); and help navigate any additional license application or commodity classification issues, including those that arise in furtherance of a Foreign Military Sale (FMS).

Litigation & Enforcement: MLA represents clients before the range of federal agencies responsible for overseeing and administering export control, including specifically the Departments of State, Commerce, and Treasury. In this capacity our attorneys assist clients with investigating, drafting and submitting voluntary self disclosures. Further, our attorneys liaise with appropriate agency officials regarding export or licensing violations and penalties, compliance/training/audit issues, as well as settlement negotiations. Our attorneys also represent clients in criminal export enforcement matters prosecuted by the Department of Justice.

Academic/University Research Compliance: MLA attorneys are acutely aware of the distinct export control issues that arise in an academic/research institution context. In institutional cultures where collaboration is critical, we have helped clients navigate the unique issues they face related to the employment of, and collaboration with, foreign national scholars and associated deemed export issues; EAR and ITAR university-specific exemptions; and the general academic sharing of research and technology.

Trade Embargo and Sanctions: Since the enforcement program commenced, MLA has represented U.S. companies dealing with trade issues arising under the country specific embargoes, restrictions and sanctions administered by OFAC at the Treasury Department. We routinely counsel clients concerning OFAC requirements and interpretations of its regulations, including applying for OFAC special licenses when and where required. We further support clients’ voluntary disclosures and provide representation throughout any OFAC enforcement proceedings.  

Antiboycott Regulations: MLA has been actively engaged in representing clients before the Department of Commerce’s Office of Antiboycott Compliance (OAC) since the antiboycott regulations were first promulgated in the 1970s. We have regularly counseled our clients on compliance with both the Department of Commerce’s regulation and the IRS’s antiboycott regulations, and have defended OAC investigations and made voluntary disclosures.