The Supreme Court in Kisor v. Wilkie has declined to overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., instead narrowing deference to a federal agency’s interpretation of its own ambiguous regulations by putting in place new guideposts around its use.  What this means for Auer
Continue Reading Kisor v. Wilkie: Auer Deference Lives On, But In What Form?

There are two kinds of guidances, according to recently appointed Principal Deputy Associate Attorney General Claire McCusker Murray, which should be treated quite differently.[1]  Her explanation is worth quoting at length:

The key is to distinguish between two categories of guidance, the part that mirrors what the law requires


Continue Reading A Tale of Two Guidances—New Principal Deputy Associate Attorney General Claire McCusker Murray Speaks on DOJ Efforts to Rein in Subregulatory Guidance

On May 3, 2019, the Treasury Department’s Office of Foreign Assets Control (“OFAC”) published A Framework for OFAC Compliance Commitments (the “Compliance Framework”), a guidance document that sets forth OFAC’s views of the essential elements of an effective economic sanctions compliance program (“SCP”).  OFAC
Continue Reading OFAC Publishes Guidance on Sanctions Compliance Programs

Last week, the SEC staff published new detailed guidance on its views of when a digital asset may be considered a security, in the form of two documents:  a guidance “framework” issued by the SEC’s Strategic Hub for Innovation and Financial Technology and a no-action letter from the SEC’s Division
Continue Reading SEC Staff Doubles Down on Howey for Digital Assets

On December 19, 2018 the European Commission published the legislative proposals and delegated acts (the “Package”) which it had previously outlined in its Contingency Action Plan of November 13, 2018 to prepare for a “no-deal” scenario whereby the UK exits the EU on March 29, 2019 without a
Continue Reading EU No-Deal Contingency Planning

On December 3, 2018, a U.S. government working group aimed at improving the effectiveness and efficiency of the BSA/AML regime issued a second joint statement, which focuses on innovative industry approaches to BSA/AML compliance.  This follows the working group’s first joint statement last month, which focused on BSA/AML resource sharing
Continue Reading FinCEN and Banking Regulators Issue Joint Statement on Innovation in BSA/AML Compliance

On October 11, 2018, the Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) issued a lengthy “Advisory on the Iranian Regime’s Illicit and Malign Activities and Attempts to Exploit the Financial System,” (the “Iran Advisory”), which provides examples and typologies of the Iranian regime’s exploitation
Continue Reading As Sanctions “Snap-Back” Approaches, FinCEN Advisory Emphasizes Risks to the U.S. and International Financial Systems Posed by Iran

The past two weeks have seen a number of developments with respect to U.S. sanctions relating to Russia, as the Trump administration has (1) taken additional steps to ameliorate adverse consequences for U.S. persons of the significant sanctions actions targeting Russian oligarchs announced on April 6, 2018; (2) further implemented
Continue Reading Russia Sanctions Updates

Guidance is guidance, and rules are rules.  This straightforward statement was reiterated by Treasury Secretary Mnuchin, Federal Reserve Vice Chairman for Supervision Randal Quarles and Comptroller of the Currency Joseph Otting in separate Congressional hearings earlier this year.[1]  Nevertheless, for at least the past ten years, the failure to
Continue Reading Interagency Statement on Supervisory Guidance Could Result in Meaningful Changes to Supervisory Practices

On August 6, 2018, President Trump issued Executive Order (“E.O.“) 13846,  further implementing his May 8, 2018 decision to terminate the United States’ participation in the Joint Comprehensive Plan of Action with Iran (“JCPOA”). The following day, as certain re-imposed sanctions took effect, the President
Continue Reading President Trump Issues Executive Order Re-Imposing Iran Sanctions, Signals Aggressive Enforcement to Come