Archive for the ‘SDN List’ Category


Jul

21

ExxonMobil Fined Two Million Dollars for Two Milliliters of Ink.


Posted by at 7:11 am on July 21, 2017
Category: OFACRussia SanctionsSDN List

By Dyor, STRF.ru (Own work) [CC BY 3.0 (http://creativecommons.org/licenses/by/3.0)], via Wikimedia Commons [cropped]
ABOVE: Igor Sechint

Yesterday the Office of Foreign Assets Control (“OFAC”) announced that it was fining ExxonMobil $2 million in connection with contracts signed by ExxonMobil with Rosneft in violation of the Ukraine Related Sanctions Regulations. The basis for the fine was not dealing with Rosneft itself; rather, OFAC premised the fine on the fact that Igor Sechin, an individual designated under Executive Order 13661 and the Ukraine Sanctions, signed the contracts. Simultaneously with the OFAC announcement, ExxonMobil filed suit in federal court in Texas seeking to overturn the penalty.

The OFAC announcement is unusual in that rather than simply announcing the fine and going through its usual analysis of how it calculated the penalty, OFAC responds to arguments made by ExxonMobil that it did not violate the sanctions.  ExxonMobil argued that OFAC had designated Sechin in his private capacity and not in his capacity as an official of Rosneft. OFAC harrumphs, as if it were completely obvious, that there is no private/official distinction in designations. According to OFAC, it is completely clear that there will be a problem if the blocked officer signs any agreement with a U.S person. It supports this with a Burma FAQ that deals with a different situation, that was contained in a section dealing with the Burma regulations and that OFAC has removed from its website.

OFAC’s glib rejection of a public/private distinction is not founded in any analysis of the regulations at issue. In fact, as everyone has known for quite some time, the rules do not clearly address situations where an officer of a company is designated and blocked by OFAC but the company itself is not. The Ukraine regulations refer to Executive Order 13661 as defining what activities are illegal. That relevant part of the order is Section 4 which prohibits

the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked pursuant to this order

It also prohibits the “receipt … of funds, goods, or services” from any such blocked person.

So how does Sechin’s signature of the Rosneft deals step over a line? Certainly ExxonMobil wasn’t providing any funds, goods or services for his benefit. The contracts were for the benefit of Rosneft. Nor did ExxonMobil receive any “funds, goods, or services” from Sechin in the contract. Unless perhaps OFAC thinks that Sechin provided a service to ExxonMobil when he whipped out his pen and spent three seconds spreading ink over the signature line.

If that is the illegal service that was being provided, and it seems that it is because OFAC is drawing a line at the signature line, it’s not very defensible. Let’s say that Sechin hid in a closet and told another company official to sign. That’s a service too. In fact, there is no way to imagine a scenario where a top official of a company does not ultimately approve a major contract, which is also a service, meaning that OFAC’s effort to maintain a distinction between sanctioning Rosneft and sanctioning its officers falls completely apart.

The FAQ relied on by OFAC does not help its position either. Because OFAC has disappeared this crucial guidance (in fact the only guidance from OFAC anywhere on the signature issue) from its website, I’ve retrieved it from the Wayback Machine:

285. If a Burmese Government minister is an SDN, how does that impact the ministry he leads?

A government ministry is not blocked solely because the minister heading it is an SDN. U.S. persons should, however, be cautious in dealings with the ministry to ensure that they are not, for example, entering into any contracts that are signed by the SDN. [03-18-13]

Significantly, guidance on the minister of a government ministry is not necessarily relevant to a situation involving an official of a private company. Additionally, it is hard to justify punishing a company for violating the Ukraine sanctions because it did not read a web document about another set of sanctions.  Not to mention that this guidance no longer exists at all.

It’s easy to see what ExxonMobil sued. I’ll be watching the lawsuit closely. Pass the popcorn.

UPDATE:  FAQs 398 and 400 released after the Rosneft contracts that caution against entering into contract signed by SDNs.  Both of these concern OFAC’s 50-percent guidance and not the Ukraine sanctions.  Neither explains how an SDN signing a contract in his or her official capacity actually violates a rule that OFAC has promulgated and published in the Federal Register and the Code of Federal Regulations.

 

Photo Credit: By Dyor, STRF.ru (Own work) [CC BY 3.0 (http://creativecommons.org/licenses/by/3.0)], via Wikimedia Commons [cropped]. Copyright 2009 Dyor, STRF.ru

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Copyright © 2017 Clif Burns. All Rights Reserved.
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Jun

30

Jury Award for $60 Million Entered Against Transunion over SDN List Reports


Posted by at 4:49 pm on June 30, 2017
Category: OFACSDN List

https://www.instagram.com/p/BKeO97kg4MG/On June 20, a federal jury awarded a $60 million damage verdict against mammoth credit reporting agency Transunion arising from the company’s misuse of the Office of Foreign Assets Control’s List of Specially Designated Nationals and Blocked Persons (the “SDN List”) on credit reports. The plaintiffs in that case where individuals who were not on the SDN List but whom Transunion identified as such, resulting in adverse credit decisions for these individuals.

The class action lawsuit was based on a number of related violations of the federal Fair Credit Reporting Act and a similar California statute. Among the violations at issue were the provisions of section 1681(e) which requires credit bureaus to “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” The Third Circuit in Cortez v. Trans Union, 617 F.3d 688 (3d Cir. 2010), previously rejected Transunion’s efforts in that case to make the implausible argument that the SDN List information it supplied with respect to credit applicants was not part of their credit report.

In the current case, the complaint details the experience of one of the representative plaintiffs with Transunion’s OFAC reporting. That plaintiff, named Sergio L. Ramirez, had a car loan denied because his name was similar to two entries on the SDN List, namely, Sergio Humberto Ramirez Aguirre and Sergio Alberto Cedulo Ramirez Rivera. Not only were the names different, but also the birthdate for Plaintiff Ramirez, which Transunion had in its file on the plaintiff, was different from the birthdates listed in the entries for the two aforementioned SDNs.

OFAC has issued guidance about the use of the SDN List by credit bureaus:

The text on the report should explain that the individual’s information is similar to the information of an individual on OFAC’s SDN list. It should not state that the information matches or that the credit applicant is in fact the individual on the SDN list unless the credit bureau has already verified that the person is indeed the SDN.

Even assuming that Transunion followed this guidance, which is not clear, it seems hard to justify transmitting the information to the car dealership when Transunion had information that clearly indicated the credit applicant was not either of the SDNs. It seems to me that credit bureaus can easily protect themselves from outcomes like the $60 million verdict by transmitting SDN information with a disclaimer but doing so only in cases where the credit bureau does not itself have information, such as birthdates, places of birth, etc., sufficient to resolve the potential hit.

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Copyright © 2017 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)

Jun

15

Delaware Bill Proposes Mandatory OFAC Screening: What Could Go Wrong?


Posted by at 1:37 pm on June 15, 2017
Category: OFACSDN List

Rehoboth_Boardwalk

I love Delaware. I’ve spent many days on the Delaware beaches. Even so, recent legislation proposed in the Delaware House deserves ridicule and I’m willing to do that, even if that means I’m banned from ever having another slice of Grotto Pizza or bucket of Thrasher’s Fries.

The bill in question, House Bill No. 57, prohibits the Delaware Secretary of State from registering LLCs where the members are subject to OFAC sanctions.  It also requires registered agents to screen members to avoid presenting applications with sanctioned members.

The bill is the brainchild of the Delaware Coalition for Open Government  (“DelCOG”), which after untold hours researching Delaware LLCs, has discovered two (yes, two) cases where Delaware has registered LLCs on the OFAC SDN List. The companies in question are 200G PSA Holdings, LLC and Agusta Grand I, LLC, which were designated as Specially Designated Narcotics Traffickers by OFAC on February 13, 2017. Both companies were registered in Delaware, respectively, on January 29, 2013, and October 28, 2014. Because the designation occurred after the companies were registered in Delaware, the proposed legislation would not have had any impact on the registration of these companies.

DelCOG and the bill’s drafters seem to be unaware that SDNs will get registered in Delaware only when their designation occurs after registration. If it occurs before, the companies will be unable to pay their fees because banks will almost certainly block all payment of registration and agent fees. So the proposed legislation does not really accomplish its intended purpose at all.

What is does do is create is ample opportunity for confusion. Here’s some language from the bill:

The Secretary of State shall neither certify for formation or domestication nor register as a limited liability company any citizen, group, organization, or government of a listed Sanctioned Nation in the Active Sanctions Program of, or any Specially Designated National listed as such by, the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury when federal law is violated thereby.

The phrases “listed Sanctioned Nation in the Active Sanctions Program” is not defined in the proposed bill. This is an apparent reference to this web page on the OFAC site which lists countries subject to comprehensive sanctions like Syria and Iran but also countries with regime-based sanctions, such as Iraq and Venezuela, where only designated individuals and entities are affected. This sets up the possibility that when anyone in Venezuela (who is not an SDN) is a member of an LLC seeking registration the Delaware Secretary of State will have to decide whether this violates federal law. The same will occur if the member is a U.S. permanent resident that is also an Iranian citizen. Neither of these instances would violate federal law, but who knows what the Secretary of State of Delaware will decide.

The proposed legislation also wanders into CFIUS territory with equally dubious results. The bill requires registered agents to determine if the purpose of the proposed LLC conflicts with the “prohibited or restricted investment … requirements” of Exon-Florio, 50 U.S.C. App. § 2170. In such cases, the registered agent cannot file the registration application on behalf of the LLC and must advise them to file a CFIUS notice. Apparently, the drafters of the bill are not aware that the CFIUS notice process is voluntary.

This bill amply demonstrates the problems that arise when states take it upon themselves to interpret and enforce federal law.

Photo Credit: Rehoboth Boardwalk by Clif Burns Copyright 2014 Clif Burns. All rights reserved.

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Copyright © 2017 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)

Apr

20

OFAC Releases Frequently Misleading Answers to FAQs on SDN Delisting


Posted by at 9:14 pm on April 20, 2017
Category: OFACSDN List

U.S. Treasury Department by Oran Viriyincy [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://flic.kr/p/ecNvDu [cropped]The Office of Foreign Assets Control today issued FAQs on the process whereby OFAC removes people from its List of Specially Designated Nationals and Blocked Persons. Sadly, the answers to those FAQs don’t really tell the whole story.  You might refer instead to Frequently Mis-Answered Questions

For example, OFAC says that it delists “hundreds” of entities each year. Although that has been the case lately, that has not always been the case, as OFAC’s archive of changes demonstrates. In 2001 and 2002, no entities were delisted and many less than 100 were delisted in 2005. Just over 100 were delisted in 2009

And although OFAC says the purpose of designation is not punitive but is to change behavior, this is hard to credit fully given the barriers OFAC erects to make delisting difficult. The principal ground for delisting is, as OFAC says in the FAQs, that the SDN has stopped the behavior that led to designation. The problem is OFAC will not ever reveal the specific basis for any designation. OFAC also makes it difficult to obtain paid legal representation because a license from OFAC is usually required to authorize payments to the lawyer, a lengthy and uncertain process that will lead most lawyers to decline representation. The only reliable way to get off the list is, as OFAC says, to die, but that, as they say, is cold comfort.

The 900 pound gorilla in the SDN listing room, of course, is still not addressed by these FAQs. If you are a terrorist or drug dealer that is designated by OFAC there is at least a process for removal. If you, however, aren’t a terrorist or drug dealer, but have a name similar to one, you are out of luck. Even though banks will routinely refuse to deal with people with similar names, there is no avenue for these innocent victims of the designation process to obtain relief from the agency.

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Copyright © 2017 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)

Apr

18

Indictment of SDN Ignores OFAC’s 50 Percent Rule


Posted by at 2:56 pm on April 18, 2017
Category: Criminal PenaltiesOFACSDN List

Kassim Tajideen Mugshot [Fair Use]
ABOVE: Kassim Tajideen

Prosecutors love to add cute little nicknames to indictments.   In their view, United States v. John Jones aka Vicious Johnny the Kneecapper sounds much, much better than plain old vanilla United States v. John Jones.  So, in the indictment against recently arrested Kassim Tajideen the government makes sure to lead off with a few akas:  “Big Haj” and “Big Boss.”  In this case, however, maybe the United States needs its own aka as well: “United States aka United States of Imaginary Laws”

Tajideen is on the Office of Foreign Assets Control’s List of Specially Designated Nationals and Blocked Persons.   He is being prosecuted for “causing” U.S. persons to violate the rules against transactions with blocked parties.   Charging an SDN for doing business with U.S. persons, rather than charging U.S. persons that do business with the SDN, is unusual but not unprecedented.

The problem here, however, is not that the prosecution is unusual.   The problem is that the prosecution is based on a rookie mistake and an careless misinterpretation of governing law.  The theory of the indictment is that Tajideen, by not disclosing that he controlled various companies, caused U.S. persons to transact business with those companies in violation of U.S. sanctions.   Here’s what the indictment says:

The business empire utilized different corporate entities over the years, all controlled by KASSIM TAJIDEEN, including Epsilon, ICTC, and Sicam Ltd., to procure and distribute goods throughout the world, including the United States. KASSIM TAJIDEEN was the ultimate owner and chief decision-maker of the business empire, with IMAD HASSOUN acting as confidante and lieutenant. KASSIM TAJIDEEN benefited directly and indirectly from the operation of the business empire.

22. At all relevant times during the conspiracy, the defendant KASSIM TAJIDEEN was designated a Specially Designated Global Terrorist by the United States Department of the Treasury, Office of Foreign Assets Control, pursuant to the International Emergency Economic Powers Act, Executive Order 13224, and the Global Terrorism Sanctions Regulations. As discussed above, the SDGT designation resulted in any property in the United States, or in the possession or control of U.S. persons, in which KASSIM TAJIDEEN had an interest, being blocked, and all U.S. persons were generally prohibited from transacting business with, or for the benefit of, KASSIM TAJIDEEN.

Most readers here will immediately see the problem with the prosecutor’s case. In effect, the prosecution is asserting, wrongly, that it is illegal for a U.S. person to deal with an entity in which an SDN has any interest. Alternatively, the prosecutors might be asserting above that it must be at least a controlling interest. But whichever the case, that is just not true.

OFAC has issued clear guidance, easily found by anyone with access to the Internet (which presumably includes the prosecutors here) that describes the circumstances in which any entity in which an SDN has interest is itself also blocked by operation of law.  This guidance makes clear that it takes more than “any interest” or even a “controlling interest” for ownership by an SDN result in the owned entity being itself blocked.

Here is what that guidance says:

Persons whose property and interests in property are blocked pursuant to an Executive order or regulations administered by OFAC (blocked persons) are considered to have an interest in all property and interests in property of an entity in which such blocked persons own, whether individually or in the aggregate, directly or indirectly, a 50 percent or greater interest. Consequently, any entity owned in the aggregate, directly or indirectly, 50 percent or more by one or more blocked persons is itself considered to be a blocked person.

The guidance makes it perfectly clear that control alone does not result in the SDN’s company being blocked:

U.S. persons are advised to act with caution when considering a transaction with a non-blocked entity in which one or more blocked persons has a significant ownership interest that is less than 50 percent or which one or more blocked persons may control by means other than a majority ownership interest. Such entities may be the subject of future designation or enforcement action
by OFAC.

There’s good reason for this rule. Although majority ownership of an entity is something on which information can be easily gathered, it is difficult, if not impossible, for a party to a transaction to determine every owner of that entity or even the person who might ultimately exercise de facto control over that entity. So, under the OFAC guidance, it was not illegal for U.S. persons to transact business with these entities in which Tajideen had some interest, maybe even a controlling one. If those transactions were not illegal, then Tajideen did not cause any illegal transactions and the bottom drops out of the government’s case.

What the government had to allege here, and what it somehow was unable to do, is that Tajideen had a “50 percent or greater” interest in Epsilon, ICTC, and Sicam Ltd.  Even saying, as the indictment does, in one place that Tajideen was the “ultimate owner and chief decision-maker of the business empire” is not the same as saying that he had an interest of 50 percent or more in the three companies at issue.

Indeed the government’s silence here, like the dog’s silence in The Adventure of Silver Blaze, says all you need to know.

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Copyright © 2017 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)