OFAC Administrative Subpoenas - Securities Litigation & Compliance Services
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OFAC Administrative Subpoenas

Knowledgeable OFAC Investigation and Defense Lawyers Helping Clients in Receipt of OFAC Subpoenas

John W. Sellers
Attorney John W. Sellers
SEC Defense Team Lead
Former DOJ Trial Attorney

The Office of Foreign Assets Control (OFAC) is a division of the United States Treasury that is responsible for implementing and enforcing sanctions against countries and individuals believed to pose a threat to U.S. interests. However, OFAC does not directly regulate foreign entities, as they are not necessarily subject to U.S. laws. Instead, OFAC implements sanctions against a foreign county or entity, limited or prohibiting all U.S-based entities from conducting business with or otherwise supporting target individuals, groups and countries. When OFAC believes that a U.S. entity violated a sanction, it will issue an administrative subpoena.


At the Oberheiden, P.C., we’ve assembled a veteran team of highly regarded OFAC investigation and defense attorneys to assist those who received an OFAC subpoena. Oberheiden, P.C. lawyers have exceptional experience handling a wide range of OFAC matters. If OFAC sent you or your business an administrative subpoena, we can help you understand what it means and how to respond effectively, without incurring additional risks.

What Is an Administrative Subpoena?

Typically, when law enforcement suspects that someone violated the law, they must obtain a subpoena. This involves presenting evidence to a magistrate judge who determines whether there issuing the subpoena is appropriate. However, administrative subpoenas are of a different breed in that they do not require judicial approval. Thus, OFAC can issue an administrative subpoena without needing to present any evidence to a judge.

When OFAC issues an administrative subpoena, it expects that the party receiving the subpoena will provide full and complete information related to the demand. Additionally, OFAC may demand documentation of the information provided to ensure its veracity. In most cases, those receiving an OFAC administrative subpoena have 30 days to respond. OFAC may allow additional time to comply with an administrative subpoena, on a case-by-case basis.

While administrative subpoenas are not subject to judicial approval, they can be judicially enforced. Thus, if you ignore or otherwise fail to respond to an OFAC administrative subpoena, it can lead to additional criminal charges, most often, contempt of court. Once a federal judge has issued an order compelling a response to a subpoena, failure to respond to the subpoena equates to a failure to comply with the court’s order. Under 18 U.S.C. § 401 and § 402, courts have the power to impose significant monetary penalties and even incarcerate a party for contempt of court.

It is also imperative that all statements made in response to an OFAC administrative subpoena are truthful. Otherwise, under 18 U.S.C. 1001, you could face additional criminal charges carrying a penalty of up to five years in prison.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd
Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester
Brian J. Kuester

Former U.S. Attorney

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney

Local Counsel

John W. Sellers
John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara
Linda Julin McNamara

Federal Appeals Attorney

Aaron L. Wiley
Aaron L. Wiley

Former DOJ attorney

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (DOJ)

Chris Quick
Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow
Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

What Does OFAC Look for When Issuing Administrative Subpoenas?

In most cases, when OFAC issues an administrative subpoena, it believes that the recipient violated one of the many OFAC sanctions. Often, an OFAC investigation is based on the belief that you or your business conducted business with a sanctioned country or an individual on the Specially Designated Nationals and Blocked Persons List (SDN List). Under federal law, any party conducting business with a country, group or individual subject to OFAC sanction must maintain records of all transactions for at least five years. Thus, in most cases, OFAC is looking for these records to further investigate its suspicions.

Examples of situations in which OFAC may issue an administrative subpoena include:

  • Receiving deposits from sanctioned entity through a third-party;
  • Possession assets belonging to a sanctioned country or individual on the SDN list; or
  • Shipping goods to a sanctioned country.

Of course, these are just a few examples. OFAC sanctions are incredibly broad and complex, and there are many ways in which a business or individual can inadvertently violate an OFAC sanction. While an OFAC sanction compliance program can help companies avoid accidental violations, even a compliance program is not a guarantee against being found in violation of a sanction.

Options for Responding to an OFAC Administrative Subpoena

If you or your business recently received an OFAC administrative subpoena, you have a few options.

1. Ignore it

Ignoring an OFAC subpoena is not recommended, as doing so can subject you to additional criminal charges. Moreover, OFAC will likely still be able to obtain the information or documents it is looking for. Thus, ignoring the subpoena only places you in further jeopardy.

2. Challenge the scope of the subpoena

While OFAC administrative subpoenas are not subject to judicial oversight, recipients can reach out to OFAC explaining that the demand, as currently phrased, would result in an undue burden. While there is no bright-line rule, smaller organizations typically have better luck asking OFAC to reframe the scope of an administrative subpoena.

3. Gather the covered information and respond

Absent extraordinary circumstances, you will need to respond to an OFAC subpoena. To do so, you should gather all information and documents covered by the subpoena and provide them to OFAC and the enforcement officers assigned to the case. Because this is an administrative process, courts are usually not involved at this point. Instead, you or your attorney will communicate directly with OFAC. Often, OFAC will have follow-up questions, and it is important to discuss these questions with a qualified OFAC lawyer prior to responding.

Frequently Asked Questions:

Do I need a lawyer if I just received an OFAC subpoena?

 

Strictly speaking, there is no requirement that you work with an attorney after receiving an OFAC administrative subpoena. However, it is certainly in your best interest to do so. The OFAC administrative subpoena process does not take place in a courtroom. Thus, initially, it may seem that an attorney is not necessary. However, because the process is less formal, if you do not have a lawyer you will be communicating directly with an OFAC enforcement officer. Not only is this intimidating, but anything you say to them can be used against you. On the other hand, having an attorney represent your interests means that your attorney will handle dealing with the enforcement offices and ensures that your response is specifically tailored to the issues at hand. To learn more about the benefits of having an OFAC investigation attorney with Oberheiden, P.C. represent you through the administrative subpoena process, give us a call to schedule a free consultation.

Why did I receive an OFAC administrative subpoena?

 

Generally, OFAC issues administrative subpoenas when it has reason to believe that you violated a sanction. OFAC sanctions are incredibly complex, and there is no “intent” element needed to find you in breach of a sanction. So, it is possible to violate an OFAC sanction without knowing it. However, most often, OFAC sends out subpoenas if you are either doing business with a sanctioned country or entity, are in possession of a sanctioned entities’ assets, or received money originating from a sanctioned country. At Oberheiden, P.C., we can help you understand what conduct may have prompted OFAC to issue the subpoena and work with you to develop a custom-tailored response.

What should I look for in an OFAC administrative subpoena lawyer?

 

Anytime you are looking to hire a lawyer, experience is paramount. This is especially the case when dealing with something as complex and high-stakes as an OFAC administrative subpoena. While few law firms have significant experience dealing with OFAC subpoenas, many claim to be able to handle these issues. When you meet with an attorney, ask them whether they regularly work with clients in receipt of an OFAC administrative subpoena, and how these cases ended for their clients. While past results are not necessarily indicative of how your situation will turn out, this will give you an idea of the lawyer’s overall experience in handling OFAC subpoenas.


Reach Out to a Nationally Respected OFAC Investigation Law Firm

If you recently received an OFAC subpoena in the mail, you may not know how to respond or where to turn for help. This is expected, as most businesses—and certainly most individuals—have never been through this process before. At Oberheiden, P.C., that’s where we come in. Our experienced OFAC investigation lawyers have extensive, hands-on experience helping businesses large and small through the OFAC administrative subpoena process. We can help you develop a responsive answer to the subpoena that doesn’t risk raising the eyebrows of an enforcement officer. At the same time, given our vast knowledge of the OFAC regulations, we can also assist you in determining which information falls outside the scope of the subpoena. To learn more, and to schedule a free consultation with an OFAC administrative subpoena lawyer at Oberheiden, P.C., call 866-755-0697 today. Our attorneys are standing by, waiting to assist you in any way we can. You can also reach us through our online contact form.

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