Savings in time, money, intangible corporate resources and even ‘Machiavellian litigation entanglements’ can be maximized if the corporate counsel takes the time to make the investment and establish relationships with US regulatory agencies. from the US are not as far removed and unaware of the day-to-day regulatory issues that many corporations are experiencing as one might think.
Current regulatory environment: what is this? To subpoena!!
This is a critical area for the current complex regulatory scheme. Although the new Administration has promised to drastically reduce these regulatory burdens, it does not really affect the perspective of a corporation and the need to develop a CRP (Corporate Regulatory Philosophy) in approach, management and strategy to maintain satisfactory compliance.
It doesn’t matter if you’re dealing with the USDOJ, the Department of Commerce (DOC) which controls Import and Export (BIS), the FDA (which also includes “stem cell” research and practice), the FTC, the FCC or any other Agency, you must ‘know your agency’ because each has its own distinct internal procedural policies and different aspects of Compliance and varies and runs the gamut from highly conciliatory to what many might see as ‘draconian’ and criminal in nature .
If you are involved in major Washington, DC agencies, having a local DC attorney is helpful, but my experience has shown that this is simply not enough. The Company’s Corporate Counsel must be sufficiently familiar not only with the inner workings of the particular DC agency, but he must also be able to represent his own corporate interest before these agencies in any Jurisdiction.
To this end it is advisable to have 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 call phone them in advance instead of a subpoena.
Why travel to DC: Because in practice these agency hierarchies don’t return phone calls very often, and even when they do, it doesn’t result in much progress, but they will entertain a visit to their offices where they feel comfortable and comfortable (although the Corporate Council can’t – at first).
For that reason, I make it a routine part of my practice to visit, hold meetings, and gain a first-hand understanding of people and what their Agency sees as their priorities on any given issue at any given time.
Compliance – Depending on the Agency, the regulatory authority will be different and it is essential to know this information. Some agencies rely exclusively on the Department of Justice, which is a huge and politically motivated entity, so having the DOJ’s expertise will certainly produce great results.
DOJ – The DOJ can be painstakingly slow, unresponsive, and bureaucratic, but having a relationship with the 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 the Indigenous Agency is controlling and unfair.
It’s easy to jump to this conclusion (like the $8bn fine 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 a reputation for sincerity” However, the responsibility of corporate citizenship will be invaluable, for while there are serious civil and criminal provisions at the Prosecutor’s disposal, there is also a wide margin of discretion and power assigned to these individuals and, at the end of the day , I have found that they are understanding and fair Individuals who live and have the same daily activities that we all do.
It would be a surprise to most corporations to learn 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 visit their office and that they dealt almost exclusively with 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 Compliance Attorneys. For example:
The Federal Communications Commission or the “FCC”: Since the reclassification of broadband (Internet) communications in 2015, it has fallen under the jurisdiction of the Title II and Title III agencies, has grown into an immense authority and jurisdiction, and this even involves “remote” or “short range devices” such as Bluetooth, wireless control of home appliances and the like, and there is a plethora of regulatory activity regarding “FCC Terminology” such as “unlicensed spectrum” or the fall of what is known as “white space” which (surprisingly) both Google and Microsoft are trying to achieve.
Also included within this Internal Compliance group is the CPSC or Consumer Product Safety Commission along with the Federal Trade Commission or FTC, which derives its original jurisdiction from the 1914 Clayton Act on “Unfair Trade Practices.” Now, this Agency is located in Bethesda, Maryland, is comprised of just 500 employees, and has two in-house Enforcement Agencies: the OIG (Office of Inspector General) and the CLU (Criminal Liaison Unit).
Now this is critical to knowing how these internal agencies operate compared to the Department of Justice 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 specific guidelines and I can attest that this Agency can be incredibly wonderful to work with and establish official regulatory relationships with because believe me when I say “They make the decisions” in their territory.
Department of Energy -DOE – It would be nice to discuss these limited agencies without touching the DOE. Within this huge agency is the FERC or Federal Energy Regulatory Commission and this jurisdictional base is huge: coal, wind, solar power, national power grids, geomagnetically induced currents (GIC), GMD or geomagnetic disturbances, power plant maintenance nuclear, hydroelectric power… “ugh! I could go on forever but the important thing to note here is that this area of power regulation schemes can be complex to the point of seeming almost algorithmic and it is true that they can be complex and controversial”. (See 1., below) But I can say from experience that this agency has a “very compassionate personality” when it comes to law enforcement. They just want the job done.
They don’t have the time or the desire to see themselves as a “fiscal alternative” agency because, frankly, their responsibility is too important and critical to both our national well-being and our national security, and they well recognize this responsibility. In recent times they have found themselves at the crossroads of Public Welfare, Homeland Security, GEOINT (Satellite Surveillance) and as a cross-functional agency with many others.
Know when to ‘stand your ground’
Strategy When Things “Go South” – All that is said here in this brief synopsis are the highlights and points of interest for learning about agencies, their particular compliance policies and procedures, whether internal or external ( DOJ) and perhaps most importantly, building relationships. .
But what does a Corporation do when it has become the “target” of an Agency and diplomacy and remedial action have proven futile and the Agency appears to be unduly aggressive and determined to apply harsh and unreasonable fines and/or severe or sanctions This is rare but it does happen.
This is when the corporate board needs a “prior” action strategy to deal with these to adequately protect the company’s legal and financial interests. One option is to make sure you keep your “home playing field” and that means filing an action in Federal District Court in YOUR particular jurisdiction and seeking relief, injunctive 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 you are forced to appear before 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 you perceive as your chances 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 take my word for it that your chances of conciliation are much better in the Independent Republic of Texas in Dallas Federal Court which is on Pennsylvania Avenue 7 blocks from the White House and the Attorneys at DC Enforcement I am well aware that the Federal Courts in Texas do not fear the Washington power base and have and will consider their corporate citizens.
Now, let it not be said here that the DC courts are not fair and I mean to infer that place is despised, but the reality is this: there is a political, practical (less expensive) and undeniable advantage of a local jurisdictional court advantage and it should be common knowledge that if the corporate entity feels it is appropriate for it to really take full advantage of its home state venue, 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 Act: which states: FERC may order compliance with a Reliability Standard and impose a penalty if a user, owner, or operator of BPS “has engaged is about to engage in any act or practice that constitutes or will constitute a breach of a reliability standard”
2. Power Grid Disasters: March 1989 Quebec Blackout Salem (NJ) Generator Step-Up Transformer Damage (1989) October 2003 “Halloween Storm” 1859 “Carrington” Event