EAR Investigation Defense
EAR Investigation Defense
Team Lead
Former DOJ Trial Attorney
EAR Investigation Defense
Former HSI Special Agent
Compliance with the federal Export Administration Regulations (EAR) is essential for many companies operating in the U.S. and abroad. Failure to maintain strict compliance with the EAR can expose domestic and foreign companies to substantial penalties—including as a result of federal or state prosecutors pursuing criminal penalties in some cases. These penalties typically flow from EAR investigations.
EAR Investigation Defense Lawyers for U.S. and Foreign Companies
At Oberheiden P.C., we serve as EAR investigation defense counsel for companies throughout the U.S. and around the globe. The U.S. Bureau of Industry and Security’s (BIS) Office of Export Enforcement (OEE) holds primary responsibility for investigating suspected EAR violations, although various other federal authorities may conduct or participate in EAR investigations as well. As the BIS explains:
“OEE investigates both export violations by U.S. persons and the unauthorized reexport or transfer (in-country) by foreign persons of items subject to the EAR to prohibited end uses, end users, or destinations. OEE also has the authority to enforce restrictions on specific activities of U.S. persons, including those unrelated to shipments of items subject to the EAR, such as brokering, servicing, financing, or freight forwarding in connection with certain foreign weapons of mass destruction and military-intelligence end uses and end users.”
As the BIS goes on to explain, “OEE works closely with other federal law enforcement agencies to identify and act on export violations,” including working with “U.S. Customs and Border Protection to train outbound officers on EAR requirements to identify suspicious cargoes for detention.” Our lawyers provide EAR investigation defense representation for matters involving the OEE, U.S. Customs and Border Protection (CBP), the U.S. Department of Justice (DOJ), and all other federal offices, departments, and agencies. We handle investigations involving all provisions of the EAR and involving all Commerce Control List (CCL) categories and Export Control Classification Number (ECCN) product groups.
I Received a Charging Letter from the OEE. What Now?
In many cases, companies will learn that they are facing an EAR investigation when they receive a charging letter from the OEE. If your company has received a charging letter, time is of the essence, and you need to engage experienced defense counsel promptly. When the OEE issues a charging letter, this means that the Office has “reason to believe that a violation [of the EAR] has occurred.” Its investigation has already been ongoing for some time; and, at this stage, your company may need to begin preparing to defend itself in a formal administrative proceeding.
However, even at this stage, it may be possible to resolve the OEE’s EAR investigation without a formal adjudication. The OEE is generally willing to settle in appropriate cases; and, if the allegations in the charging letter are misguided or unsubstantiated, it may still be possible to avoid consequences entirely. An EAR investigation defense lawyer at our firm can help you understand the options your company has available, and our team can get to work immediately executing a targeted defense strategy on your company’s behalf.
The OEE also issues proposed charging letters in some cases. Proposed charging letters come earlier in the EAR investigation process; and, as a result, they generally provide a greater opportunity to achieve a favorable resolution without a formal adjudication. But, here too, experienced legal representation is essential. EAR investigations can be extraordinarily complex and broad in scope; and, in all cases, an informed and strategic defense is required.
Put our highly experienced team on your side
Dr. Nick Oberheiden
Founder
Attorney-at-Law
Lynette S. Byrd
Former DOJ Trial Attorney
Partner
Brian J. Kuester
Former U.S. Attorney
Hon. Kevin McCarthy
55th Speaker, U.S. House of Representatives (ret.)
Government Consultant
Mike Pompeo
Of Counsel
Former U.S. Secretary of State
John W. Sellers
Former Senior DOJ Trial Attorney
Linda Julin McNamara
Federal Appeals Attorney
Nicholas B. Johnson
Former Prosecutor
Roger Bach
Former Special Agent (DOJ)
Chris J. Quick
Former Special Agent (FBI & IRS-CI)
Michael S. Koslow
Former Supervisory Special Agent (DOD-OIG)
Ray Yuen
Former Supervisory Special Agent (FBI)
Successfully Defending Against an EAR Investigation
When facing an EAR investigation, understanding why the OEE (or another federal authority) is targeting your company is a critical first step toward executing an effective defense strategy. Regardless of whether your company has received a charging letter (or a proposed charging letter), mounting a successful defense in EAR or related government investigations starts with evaluating the specific issues at hand.
With this in mind, when serving as EAR investigation defense counsel, our process for seeking a favorable resolution generally involves:
- Identifying the Specific Issues Involved in the Investigation – When facing any type of federal investigation, it is imperative to identify the specific issues involved. Until you know what your company needs to defend against, you won’t be able to implement an effective defense strategy.
- Conducting an Attorney–Client Privileged EAR Compliance Assessment – After identifying the issues involved in your company’s EAR investigation, we will efficiently conduct an attorney-client privileged EAR compliance assessment so that we have a clear picture of your company’s risk exposure.
- Assessing Our Client’s Risk in the Investigation – We will then discuss your company’s risk exposure with you so that you can make informed decisions about your next steps. Challenging misguided accusations and flawed assumptions is a very different process from defending against allegations that could lead to administrative action, civil penalties, or a federal criminal investigation.
- Formulating a Strategy for Interfacing with Investigators – Based on the facts at hand, we will formulate a strategy for interfacing with the investigators, an approach that is critical to developing a strong defense and implementing measures to protect your company. Our lawyers will intervene in the investigative process, and we will begin working to steer the investigation toward a favorable resolution.
- Targeting a Resolution that Avoids a Formal Adjudication – In many cases, we will focus our efforts on securing a resolution that avoids a formal adjudication. While this may involve settling with the OEE, it may also involve avoiding penalties entirely.
- Demonstrating Mitigating Factors (if Necessary) – Under the OEE’s administrative enforcement regulations, there are several mitigating factors that can help to minimize the consequences of violating the EAR. If necessary, our lawyers will rely on these mitigating factors when seeking to resolve your company’s EAR investigation—either prior to or during a formal adjudicative proceeding.
- Providing Representation in Administrative, Civil, or Criminal Litigation (if Necessary) – While it will be possible to favorably resolve an EAR investigation without formal enforcement action in many cases, especially where no threat to national security or foreign policy interests is identified, there are no guarantees. If necessary, our lawyers will provide defense representation in administrative, civil, or criminal litigation proceedings.
Whether your company is facing a misguided EAR investigation based on unsubstantiated allegations or your company is at risk of facing serious consequences due to a violation of the EAR, our lawyers can work to ensure that the consequences of your company’s EAR investigation are no greater than necessary. Contact us now to speak with a senior member of our EAR investigation defense team in confidence as soon as possible.
FAQs: Defending Against a Federal Investigation Under the Export Administration Regulations (EAR)
What Are the Penalties for Violating the Export Administration Regulations (EAR)?
The penalties for violating the Export Administration Regulations (EAR) depend on the nature of the violation and its implications for national security. They also depend on whether the government’s enforcement action is administrative, civil, or criminal in nature. Administrative sanctions can include license revision, suspension, or revocation; denial of export privileges; and audit requirements (among others). Civil penalties are typically financial in nature. In criminal enforcement cases, defendants can face fines and federal imprisonment.
What Are Potential Mitigating Factors in an EAR Investigation?
In some cases, seeking to avoid unnecessary consequences during (or after) an EAR investigation will involve demonstrating that mitigating factors apply. Some examples of potential mitigating factors include a good-faith remedial response, exceptional cooperation with the OEE, and likely approval of a license for the transaction at issue had a license been sought.
What Are Potential Aggravating Factors in an EAR Investigation?
Along with considering any relevant mitigating factors, the OEE will also consider any relevant aggravating factors when deciding what penalties to target as the result of an EAR investigation. Some examples of potential aggravating factors include willfulness, recklessness, gross negligence, concealment, prior violations of export or arms regulations, awareness of the conduct at issue, management involvement, failure to disclose a significant apparent violation, and harm to BIS program objectives.
What is the BIS Sentinel Program?
Under the BIS Sentinel Program, “OEE Special Agents are deployed from the United States to countries to visit the end-users of sensitive controlled commodities and determine whether these items are being used in accordance with license conditions.” While these investigations can potentially lead to enforcement action against end users of exported products, they can lead to scrutiny of exporters’ licensing procedures and EAR compliance violations involving international traffic as well.
Should I Engage EAR Investigation Defense Counsel if I Have Been Contacted By the BIS or OEE?
If agents from the BIS or OEE have contacted your company, we recommend consulting with experienced EAR investigation defense counsel right away. If your company is facing an EAR investigation, a prompt and proactive approach could be critical for avoiding unnecessary consequences. At Oberheiden P.C., we represent companies in EAR investigations nationwide, and we can provide defense representation on an emergency basis if necessary.
Speak with a Senior Lawyer on Our EAR Investigation Defense Team in Confidence
If your company needs legal representation for an EAR investigation, we encourage you to contact us promptly for more information. To speak with a senior lawyer on our EAR investigation defense team in confidence as soon as possible, call 888-680-1745 or request a complimentary consultation online today.
