As we reported in a recent post, The Auto Sound and the OFAC Fury Part II, auto audio manufacturer Epsilon Electronics responded to the $4 million fine imposed by OFAC by filing a lawsuit with what we think has little chance for success. One question that this raises is whether Epsilon might have had better alternatives than filing a long-shot Eighth Amendment lawsuit, and I think, after reviewing the exhibits to the complaint, that it did.
Epsilon was fined for its sales of $3.5 million in auto audio equipment from its subsidiaries Power Acoustik and Soundstream to Iran through its Dubai-based distributor Asra International. OFAC’s detailed, six-page pre-penalty notice leveled serious charges at Epsilon, including that Epsilon lied to OFAC in its subpoena response and other communications, that it knew or should have known that Asra only sold to Iran, and that it tried to obfuscate its Iran sales by eliminating a web page on its own site showing its products in Iran.
In response, Epsilon hired a Beverly Hills tax lawyer who filed a brief five-paragraph response amounting to less than a full page of text. This half-hearted response was mostly devoted to arguing, in its longest paragraph, that the owners of Epsilon were observant Jews and would never sell anything to Iran. It also argued, somewhat astonishingly, that OFAC’s prepenalty notice contained no evidence that any Epsilon products were sold to Iran and that the website references to its products in Iran were a false attempt by Epsilon to exaggerate its global reach in order to remain competitive with other major players in the electronics industry.
One can imagine the response over at OFAC to this letter, particularly given that the company, which claims it was prohibited by its religious beliefs from shipping to Iran, had already received a cautionary letter from OFAC arising from its own direct shipment of monitor parts to Iran in 2008. Nor could OFAC have thought much of Epsilon’s general inclination toward truthfulness given its claim that any indication on its own website that it sold products to Iran was a lie and thus no proof that any of its products actually were shipped to Iran.
Frankly, it’s hard to imagine how on earth this response was even filed with OFAC in the first place. Indeed, it seems to me that replacement counsel that filed the lawsuit against OFAC would have had an argument that it should be given a chance to prepare and submit a proper response to the pre-penalty notice. Of course, I don’t know if new counsel tried this and was refused by OFAC but I doubt this occurred or this would have been mentioned in the complaint. And even if OFAC had been asked, it may have refused. But given the problems with the original response and given the difficulty of overturning agency action on review, this was certainly what I would have tried.
On a slightly different topic, we noted in the first post on this case that the website of the distributor, Asra, was now mysteriously under construction. Of course, nothing ever dies on the Internet thanks to the Wayback Machine, and we found archived versions of the Asra website alive and well. The archived websites make clear that Iran was Asra’s principal, if not its only, market. Even its Farsi-language catalog of Epsilon’s Soundstream products, a page from which is pictured above, can still be downloaded here.