General Note on Correspondence of Publicly Traded Companies with the SEC Concerning Sanctions (System Ed. Note)

TURBOFAC Commentary (552 words)

General Note on Correspondence of Publicly traded Companies with the SEC Concerning Sanctions (System Ed. Note)

Unless the particular interpretive question at issue is one on which OFAC has issued not even a shred of guidance, we generally avoid reading anything into the current practices of significant corporations as a proxy for the way in which OFAC is likely to interpret its regulations.

The exception to this comes in the form of certain correspondence of publicly traded companies with the SEC concerning sanctions. There are dozens of such items included in the research system, and we consider them valuable as windows into the way in which OFAC is likely to interpret its regulations.

In some cases, the companies directly report guidance received from OFAC, or OFAC having issued licenses for certain activities. There OFAC guidance is reported directly in a document, it is clearly reliable, given the penalty for significantly misrepresenting the guidance. See e.g. Reynolds American Inc., Correspondence with the SEC Office of Global Security Risk (2006); LICENSE No. IA-7315, Trivago N.V., 2016 10-K Filing and CTC Media: Selected Correspondence with the SEC (2014-2016).

In other cases, we report on major corporations' disclosures and other SEC correspondence concerning certain sanctions related activities, and their own characterizations of those activities in relationship to the OFAC-administered sanction provisions or exemptions implicated.

A statement by a given company on how it considers the law to apply is not worth much in a vacuum. However, the context of many of the disclosures we report and analyze is of major corporations disclosing a consistent practice—i.e. activities engaged in over the course of several years and reported consistently—in connection with inquiries from the SEC aimed in part at verifying that those practices are actually legal.

In many of these cases, the companies involved are not only large, but they are large enough to constitute "choke points" in their respective industries, and the practices they disclose are such that, if they were illegal, OFAC would assuredly inform them of this and those practices would change. They are, instead, consistently reported. See e.g. American Airlines Group Inc., Correspondence with the SEC Office of Transportation and Leisure (2017), Citigroup Inc., Q4 2016 10-Q Filing (2018 10K Filing), Overseas Shipholding Group, Inc., Various Correspondence with the SEC (2006-2015), Mastercard Incorporated, 2016; 2018; 2019 10-K Filings. In most cases, it is fair to assume that, prior to disclosing the activities in the context of public filings with the SEC, the companies have at least sought informal guidance confirming that their interpretations of the law are correct. Given the stakes, they are guaranteed to be engaging competent sanctions counsel on these issues. This is all the more likely when a company reporting its practice has already been subject to a significant OFAC enforcement action (e.g. JPMorgan Chase & Co., 2017 10-K Filing).

The foregoing is not to suggest that the interpretations of the law advanced in the correspondence will in all cases be correct or otherwise reflect OFAC's current practices, but there is clear interpretive value in the correspondence, especially on questions where one has reason to suspect that a given provision is interpreted a certain way, but OFAC has refrained from making a definitive statement on the question one way or the other.