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Red Flags Rising

Michael Huneke & Brent Carlson
Red Flags Rising
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  • FRESH LOOKS - Monitoring What Matters
    Mike and Brent propose a new framework for post-resolution third-party independent consultants imposed under corporate resolutions with the U.S. Bureau of Industry & Security (BIS) or monitors imposed under resolutions with the U.S. Department of Justice’s (DOJ’s) National Security Division (NSD) that best promotes underlying national security objectives while also minimizing the impact on the resolving company’s business. Their proposal is based on their prior “Fresh Looks” article with the NYU Law School’s Program on Corporate Compliance & Enforcement (PCCE), “Monitoring What Matters: A Fresh Look Proposal to Government and Industry for How Post-Resolution Oversight Can Best Deny Hostile Actors the Means to Cause Deadly Harm,” from March 28, 2024.Mike and Brent introduce their prior “Monitoring What Matters” article (00:37), contrast the needs of post-resolution oversight under U.S. export controls with those under the U.S. Foreign Corrupt Practices Act (FCPA) (01:52), and then explain why traditional concepts of what a post-resolution independent monitor or consultant should do miss the mark (02:38), how the compelling need to move quickly could justify imposing key milestones at just 3 and 6 months, with completion in one year (04:56), that this shortened timeframe can be achieved by leveraging the “awareness of a high probability” standard of knowledge under the U.S. Export Administration Regulations (EAR) (05:56), how battlefield risks should drive prioritization (09:28), how third-part independent consultants should be leveraging what is likely, for many companies already on the front lines of U.S. export controls (e.g., by being part of the leading-edge AI ecosystem), a robust compliance program that was likely further enhanced during the preceding government investigation (11:11), how companies and any post-resolution independent consultant or monitor should think about where and how to draw due diligence lines regarding multi-tier distributor and reseller networks (12:57), the importance in the national security context of thinking about third-party consultant and monitor independence not just in terms of independence from direct client relationships with the subject company but also in terms of independence from the relevant foreign country’s military or intelligence agencies, including prior engagements to lobby the U.S. government (16:38), and the three key takeaways from their prior article (22:04). They conclude with Brent’s ever-popular segment, “Managing Up” (28:08).The prior “Monitoring What Matters” article: https://wp.nyu.edu/compliance_enforcement/2024/03/28/monitoring-what-matters-a-fresh-look-proposal-to-government-and-industry-for-how-post-resolution-oversight-can-best-deny-hostile-actors-the-means-to-cause-deadly-harm/The rest of the “Fresh Looks” series with NYU: www.hugheshubbard.com/fresh-looksMore about Brent: https://www.linkedin.com/in/brent-carlson-41ba692/More about Mike: https://www.linkedin.com/in/mhuneke/
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  • Data-Driven Root-Cause Analysis with Erika Trujillo of SEIA
    Mike & Brent welcome Erika Trujillo, Managing Director of SEIA (“say-a”), who with her company brings advanced data analytics solutions to solving trade compliance problems. Mike and Brent discuss Erika’s background and the services SEIA provides (00:14); how advanced data analytics can help with export controls risk assessments by, among other things, bringing to bear data from across multiple departments (which is particularly important under U.S. law’s collective knowledge doctrine and the “high probability” standard) (02:10); the importance of differentiating between your company’s “internal data” and the “external data” and of identifying and leveraging what internal data might be sitting within reach (05:03); the importance of contextualization, i.e., taking a holistic perspective at potentially interesting data points that only become informative in the context of other data points, for example data suggesting that EAR99 items that otherwise would not require an export license might be exported for prohibited end-uses or to prohibited end-users (06:53); the need for companies to have the courage to engage with their own data, especially since they are making statements to various governments in any case about their trade flows (09:21); how small- and medium-sized companies can start, step-by-step, to get a handle on their internal data (10:53); how to respond to reports or allegations (i.e., “red flags”) of potential export control violations (12:18); common data pitfalls to avoid (13:51); the importance of prioritization not just in terms of data cleanup projects (14:28); why praying to the accounting platform gods and hoping everything is OK is not sufficient (16:00); the full definition of knowledge (including an awareness of a high probability) and what opportunities that presents for risk-based approaches to trade compliance (16:35); how a data-driven approach to trade compliance can help improve relationships with colleagues in sales and operational functions (18:39); how to overcome the fear of what you might find by taking a deeper dive into your company’s data (19:28); and how a data-driven approach can help with c-suites and boards of directors (20:13). We conclude with a surprise twist in the ever-popular segment, Brent Carlson’s “Managing Up” in exploring Erika’s mission and purpose in co-founding SEIA.More about SEIA: https://www.seiatech.com/aboutseiaContact or Book a Demo with SEIA: https://www.seiatech.com/contactContact Erika: [email protected] about Brent: https://www.linkedin.com/in/brent-carlson-41ba692/More about Mike: https://www.linkedin.com/in/mhuneke/Mike & Brent’s “Fresh Looks” series: www.hugheshubbard.com/fresh-looks
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  • The Israel-Iran Conflict's Implications for U.S. Export Controls
    Mike and Brent follow-up on Mike’s being quoted in Dow Jones Risk Journal regarding the unexpected export control consequences of the Israel-Iran conflict. They discuss the geopolitical context (00:39), the article by Richard Vanderford and Mengqi Sun (01:22), the risk that Iran tries to evade U.S. export controls (and sanctions) by procuring replacement parts and equipment through third-party intermediaries (02:12), the cautionary tale of an Alabama resident sentenced to five years in U.S. federal prison for diverting items to Iran (03:29), the need to be cognizant of “catch-all” U.S. export controls related to ballistic missiles and WMD programs (including nuclear) and those controls reliance on the full definition of “knowledge” to include “an awareness of a high probability” (04:42), increased tracking and investigative activity by the U.S. government (06:19), how companies need to think about responding to “red flags” (06:45), the likely impact of forensic review of battlefield recoveries on requests by Israel and NGOs to companies for assistance in tracing item or component flows to Iran (07:44), and the likelihood of increased, rather than decreased, activity by U.S. agencies as a result of the conflict (09:52). They conclude with another segment of Brent Carlson’s “Managing Up” (12:26).The Dow Jones Risk Journal article (June 13, 2025) (subscription req.): https://article.dowjones.com/djriskjournal/articles/israel-attack-could-bring-new-business-risks-even-if-not-followed-by-more-sanctions-9f0dab93?mod=risk-compliance_feat1_dow-jones-risk-journal_pos4&_gl=1*eca83t*_gcl_au*OTM2NjQxODc2LjE3NDI1ODkxNDI.*_ga*MTQ0NTg1NTk4LjE3NDI1ODkxNDI.*_ga_K2H7B9JRSS*czE3NTAyMTQ5MjgkbzMxJGcxJHQxNzUwMjE0OTQ4JGo0MCRsMSRoNTM5NTk0NjQxThe Wall Street Journal Morning Risk Report (June 16, 2025): https://createsend.com/t/d-3CAD0099A1F7C65A2540EF23F30FEDEDMore about Brent: https://www.linkedin.com/in/brent-carlson-41ba692/More about Mike: https://www.linkedin.com/in/mhuneke/Brent & Mike’s “Fresh Looks” Series: www.hugheshubbard.com/fresh-looks
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  • Tom Blass of WorldECR Magazine & Dow Jones on Bridging the Law/Geopolitics Divide and Building Communities
    Mike and Brent welcome Tom Blass, Editorial Director of World Export Controls Review (WorldECR) Magazine that is now part of Dow Jones. Mike and Brent discuss with Tom how he and Mark Cusick started WorldECR more than a decade ago to help bridge the gap between law and geopolitics in sanctions and export controls (00:36), the recent acquisition of WorldECR by Dow Jones (04:43), some of the particular challenges Tom and Mark faced in getting WorldECR off the ground (06:30), their realization that they were creating a community (07:12), what Tom has observed in terms of geopolitics and how geopolitics have driven regulatory and enforcement activity (10:13), what Tom looks for in submissions for publication, especially in terms of balancing depth and accessibility (12:57), upcoming WorldECR events in Brussels, London, Washington, and Silicon Valley (16:19), and the direction the sanctions and export control profession is heading (21:05). Then back by popular demand is Brent Carlson’s “Managing Up” segment (24:07).WorldECR: https://www.worldecr.com/WorldECR Events Information & Registration: https://www.worldecr.com/events/About Tom Blass and Mark Cusick: https://www.worldecr.com/about-us/Tom on LinkedIn: https://www.linkedin.com/in/tom-blass-1886135/Mark on LinkedIn: https://www.linkedin.com/in/mark-cusick-3b763420/ More about Brent: https://www.linkedin.com/in/brent-carlson-41ba692/More about Mike: https://www.linkedin.com/in/mhuneke/
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  • Getting a Grip on U.S. Export Controls Guidance
    Mike and Brent unpack the May 13, 2025, due diligence guidance from the U.S. Bureau of Industry & Security. They describe what happened on May 13 (00:00), the guidance from BIS on General Prohibition 10 and Huawei Ascend chips (03:34), the related BIS policy statement (04:13), and then focus on the BIS “Industry Guidance to Prevent Diversion of Advanced Computing Integrated Circuits” (04:47), specifically the underlying U.S. national security concerns (05:50), relevant key takeaways from Episode 13’s special guest Dana W. White (06:51), the significance of the Industry Guidance’s reference to the WMD and military-intelligence catch-all provisions (08:29), the historical pre-1993 “KYC Guidance” cross-referenced by BIS in the new Industry Guidance (11:53), how the historical “KYC Guidance” is often misunderstood through selective quotation devoid of relevant context (13:34), the new “red flags” identified in the May 13, 2025 Industry Guidance (16:10), the key takeaways of the Industry Guidance (17:55), a warning about over-reliance on the Industry Guidance’s statement about existing end-use certificates (18:47), and the practical implications of the Industry Guidance for trade compliance teams (19:36). They then conclude with the next installment of Brent Carlson’s “Managing Up” (21:26).BIS May 15, 2025 Industry Guidance: https://www.bis.gov/media/documents/ai-counter-diversion-industry-guidance-may-13-2025.pdfMore about Brent: https://www.linkedin.com/in/brent-carlson-41ba692/More about Mike: https://www.linkedin.com/in/mhuneke/Brent & Mike’s “Fresh Looks” landing page: www.hugheshubbard.com/fresh-looks
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About Red Flags Rising

Welcome to Red Flags Rising, where we examine how geopolitics and national security are reshaping corporate enforcement and compliance.In an era where “economic security” drives government intervention through increasingly strict and consequential export controls, economic sanctions, inbound and outbound investment restrictions, and tariffs, legacy mindsets and assessments of enforcement risk create liability pitfalls for the uninformed.Under the “high probability” standard driving this new enforcement playbook, spotting and effectively mitigating “red flags” has a new urgency.We will help you identify and understand the trends, key insights, and practical solutions that are essential to companies, boards of directors, c-suite management, and compliance professionals in these turbulent times.
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