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Case No. SU-2014-313125-1
Legacy Pharmaceuticals Switzerland GmbH
c/o Holland & Hart LLP
Lizbeth C. Rodriguez-Johnson
555 17th St., Suite 3200
Denver, CO 80202
Dear Ms. Rodriguez:
This is in response to your letter dated October 8, 2014 (the “Application”), submitted on behalf of your client, Legacy Pharmaceuticals Switzerland GmbH (the “Applicant”), for a specific license for the export of certain non-U.S. origin medicines from third countries to Sudan.
As you know, the Sudanese Sanctions Regulations, 31 C.F.R. Part 538 (SSR) generally prohibit the exportation or reexportation, directly or indirectly, from the United States or by a U.S. person, wherever located, of any goods, technology, or services to Sudan. SSR, § 538.205.
Based on the representations made in the Application, it appears that the Applicant is a non-U.S. entity, wishing to export...
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1) The applicant at issue here was a Switzerland-incorporated entity that was mid-sized (“[a]t its peak, the company employed around 260 people”) and was, from 2007 through the date of issuance of the guidance letter, run by a U.S. person as CEO (see https://www.nau.ch/news/wirtschaft/legacy-pharmaceuticals-switzerland-gmbh-meldet-konkurs-an-65825602). This is a notable guidance letter illustrating the limitations of OFAC’s ordinary primary sanctions prohibitions as they relate to transactions of non-U.S. person entities that have U.S. person senior management, including at the CEO level. In Case No. BEL-2014-310852-1, OFAC makes clear that transactions of a non-U.S. person entity that is a subsidiary of U.S. person entity are not necessarily facilitated by a U.S. parent company solely by virtue of the parent company owning the company. Here, the question is whether the non-U.S. person entity can export goods to then-embargoed Sudan, and OFAC says yes “provided...