Running To and Through the Export Controls Investigation Finish Line - Avoiding Resolution Pitfalls and Monitoring What Matters

Mike and Brent take a break from Affiliates Rule (delayed) suspension news to focus on practical advice for companies that might be in the middle of U.S. government investigations into alleged export controls violations. They discuss the importance of engaging with the government with an awareness and an appreciation for the latest enforcement trends and signals, particularly regarding the government’s emphasis on the full definition of “knowledge” to include “an awareness of a high probability” (00:49); the importance of not being surprised by these trends in the middle of an investigation (02:52); the dangers to the cost, delay, and outcome of any investigation for failing to perceive the signals through the noise (04:08); the particular relevance of these strategies in defending against allegations of entity-shifting (09:48); the need to consider waiving privilege over prior bad legal advice—especially to avoid paying more to defend an investigation that was triggered by adhering to the prior advice (11:52); what to look for in the terms of a proposed settlement agreement, including whether and how the company will be “covered” if there are post-resolution reports of additional, previously undisclosed pre-resolution misconduct (13:22) and executive officer certification requirements (16:51); and the importance in national security resolutions, where they are imposed, of having post-resolution independent monitors or independent compliance consultants commit to focused, risk-based post-resolution monitoring that direct addresses the root causes of the violations, to avoid “industrial tourism” and to best promote the national security objectives of the United States (19:34).

Then then conclude with the next installment of Brent Carlson’s “Managing Up” segment (23:37).

Brent’s latest NYU Program on Corporate Compliance & Enforcement (PCCE) post, “From Peanuts to Elephant-Sized Penalties: A Fresh Look at Recent U.S. Export Controls Enforcement Developments & Future Trends” (Oct. 31, 2025), https://wp.nyu.edu/compliance_enforcement/2025/10/31/from-peanuts-to-elephant-sized-penalties-a-fresh-look-at-recent-u-s-export-controls-enforcement-developments-future-trends/

Mike & Brent’s prior NYU PCCE post, “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” (Mar. 28, 2024), 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/

Contact Brent: [email protected]

Contact Mike: [email protected]