On December 23, 2022, President Biden signed into law the National Defense Authorization Act for Fiscal Year 2023 (“FY2023 NDAA”). Section 5949 of FY2023 NDAA (“Section 5949”) would prohibit executive agencies from procuring or contracting with entities to obtain any electronic parts, products, or services that include covered semiconductor products or services from certain Chinese companies. The semiconductor prohibitions will not take effect until five years after the date of enactment, and the Federal Acquisition Regulatory (“FAR”) Council will issue regulations implementing the prohibitions no later than three years from the enactment date.

Below we expand on these prohibitions and summarize the key takeaways for potentially impacted companies.

Part A

The semiconductor-related prohibitions in Section 5949 expand upon Section 889 of the FY2019 NDAA (“Section 889”), which covered telecommunications and surveillance products and services from certain Chinese companies. See our prior blog post on Section 889 here.

Part A of Section 5949 prohibits federal executive agencies from procuring, obtaining, or contracting for any electronic parts, products, or services that include covered semiconductor products or services. This prohibition applies to any “covered semiconductor products or services” that are produced by Semiconductor Manufacturing International Corporation (“SMIC”), ChangXin Memory Technologies, Yangtze Memory Technologies Corp, or any subsidiary or affiliate of those entities. These companies represent a sizeable and growing share of the semiconductor chips market, and a broad range of electronic equipment imported into the United States (including mobile phones, networking equipment, and automobile parts) incorporate chips produced by these entities or their affiliates. Section 5949 also authorizes the Secretary of Defense or the Secretary of Commerce to designate other products or services as “covered” if they determine that the product or service is produced or provided by an entity owned, controlled by, or connected to the government of a “foreign country of concern,” currently China, Russia, North Korea, and Iran.

Part B

Part B of Section 5949 prohibits federal executive agencies from entering into a contract (or extending or renewing a contract) with an entity to procure or obtain electronic parts or products that use any electronic parts or products that include covered semiconductor products or services. The prohibition focuses on whether the procured electronic parts or products themselves use parts/products that include covered semiconductor products or services and, unlike Part B of Section 889, does not prohibit the contractor from using covered semiconductor products or services in the contractor’s own internal systems.

In addition, unlike Part A, this prohibition applies only to products or services that include covered semiconductor products or services in systems that are “critical systems.”1 The limitation of these prohibitions to “critical systems” may limit the scope of contractors that will be subject to Part B through their contracts.

Prohibitions are not Retroactive and Will Not Affect the FCC’s Covered List

Section 5949 contains a Rule of Construction provision stipulating that the prohibitions will not require entities to remove or replace any covered semiconductor products or services that are “resident” in existing equipment, systems, or services before the effective date (five years after the date of enactment). Entities can continue to use existing equipment that include covered semiconductor products or services “throughout the lifecycle of such existing equipment.” In addition, the Rule of Construction provision states that Section 5949 will not require the Federal Communications Commission (“FCC”) to designate covered semiconductor products or services on its Covered Communications Equipment Services List maintained under the Secured and Trusted Communications Networks Act of 2019, as it does with certain telecommunications equipment, software, and services under Section 889. This list identifies communications equipment and services that the FCC has deemed to pose an unacceptable risk to U.S. national security or the security and safety of U.S. persons.

Waiver Authority and Safe Harbors

Section 5949 contains a Waiver Authority provision that authorizes the Secretaries of Defense, Commerce, Homeland Security, and Energy, as well as the Director of National Intelligence, to waive the prohibitions after the effective date for “critical national security interests.” Moreover, the head of an executive agency may waive prohibitions, for a renewable period of no more than two years per waiver, if certain determinations are made in consultation with the Secretaries of Commerce and Defense or the Director of National Intelligence.

Section 5949 also includes a number of safe harbors. First, government contractors can reasonably rely on certifications from covered entities and subcontractors regarding the inclusion (or not) of covered semiconductor products or services in electronic products and parts, and they do not have to conduct third-party audits or formal review of those certifications. Second, contractors and subcontractors that notify the government that a critical system contains actual or suspected covered semiconductor products or services will not be subject to civil liability or determined to be non-responsible if they have not manufactured or assembled the impacted products. If the notification involves parts or products manufactured or assembled by the notifying contractor/subcontractor, that company must make an effort to identify and remove the covered products or services from the federal supply.

Effective Dates

Not later than two years after enactment, the Federal Acquisition Security Council (“FASC”) must issue recommendations to mitigate supply chain risks relevant to federal government acquisition of semiconductor products and services, and recommendations for regulations implementing the prohibitions. Within three years after the enactment date, the FAR Council must issue regulations implementing the prohibitions. The semiconductor prohibitions will take effect five years after the date of enactment.

Implementing Regulations

The regulations promulgated by the FAR Council within three years after the enactment date to implement the prohibitions will include a number of key requirements.

  • A requirement for government contractors that supply electronic parts or products to agencies to (1) certify the non-use of covered semiconductor products or services in those parts or products; (2) detect and avoid the use or inclusion of covered semiconductors in such products or services; and (3)  remedy any use or inclusion of covered semiconductors in such products and services (the cost of any such rework or corrective action would not be allowable under federal contracts).
  • A requirement for “covered entities,”2 prime contractors, and subcontractors to report to the government in writing within 60 days if the entity “becomes aware, or has reason to suspect” that an end item, component, or part of any critical system purchased by or for the government contains covered semiconductor products or services.
  • A requirement of covered entities to disclose to their direct customers whether their parts, products, or services include covered semiconductor products or services. If a covered entity fails to disclose such inclusions, the covered entity will be responsible for any rework or corrective action.
  • A requirement for prime contractors to incorporate the substance of the prohibitions and implement contract clauses into contracts for the supply of electronic parts or products.

Takeaways for Companies

  • Similar to the representations that government contractors must complete in SAM.gov for Section 889, the rules promulgated under the new Section 5949 will require contractors to provide certifications for covered semiconductor products or services. It will also require government contractors to establish additional compliance and reporting processes and procedures.
  • While the semiconductor prohibitions included in Section 5949 will not take effect until five years after the enactment of the FY2023 NDAA, government contractors will need to begin to take steps to assess supply chain risks and carefully scrutinize any electronic parts, products, or services provided to the government to ensure they do not include or use covered semiconductor products or services. Preparing now will minimize future disruptions for companies and help ensure compliance when Section 5949’s prohibitions go into effect.
  • Government contractors will likely need to incur compliance costs to procure products and services with non-prohibited semiconductor chips for delivery to the government, including equipment component re-designs to accommodate the substitutions.
  • Going forward, companies should conduct comprehensive due diligence when selecting products, service providers, vendors, suppliers, and contract manufacturers that have a nexus to Section 5949’s prohibitions. While Section 5949 imposes government supply chain prohibitions on major chipmakers in China, it also provides executive agencies with the authority to designate additional companies to the prohibited list if they determine that the product or service is provided by an entity owned, controlled by, or connected to the government of a “foreign country of concern,” including China, Russia, North Korea, and Iran.

1 “Critical System” is defined in Section 5949 as (1) “a telecommunications or information system operated by the Federal Government, the function, operation, or use of which: (A) involves intelligence activities; (B) involves cryptologic activities related to national security; (C) involves command and control or military forces; (D) involves equipment that is an integral part of a weapon or weapons system;” or (E) is critical to the direct fulfillment or military or intelligence missions; (2) other systems identified by the Federal Acquisition Security Council; and (3) additional systems identified by the U.S. Department of Defense. “Critical System” does not include systems used for routine administrative and business applications (including payroll, finance, logistics, and personnel management applications).

2 “Covered Entity” is defined in Section 5949 as an entity that develops “a design of a semiconductor that is the direct product of United States origin technology or software” and that purchases semiconductor products or services from SMIC or any other products or services that the Secretaries of Defense or Commerce designate as covered.

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In brief

On January 17, 2023, the US Department of Justice (DOJ or the “Department“) issued a revised version of its Corporate Enforcement Policy (CEP). The CEP sets out the Department’s approach to resolving criminal cases with corporations. In particular, it addresses how the Department will credit companies which voluntarily disclose criminal conduct and cooperate with the Department’s investigation and resolution of the matter.

The latest revisions to the CEP are an evolution of existing Department policy and practice. They add additional nuance (and complexity) to the CEP, as well as potentially more significant benefits to companies considering how best to approach disclosure and engagement with the Department on criminal matters.

In depth

Background to the Corporate Enforcement Policy

The CEP started its life in 2016 as a Pilot Program applied in the limited context of resolving Foreign Corrupt Practices Act (FCPA) cases. Since then, the Pilot Program was adopted permanently by the Department, expanded beyond the FCPA to cover all corporate criminal matters and formally integrated into the Department’s Justice Manual (a compendium of policies and procedures applicable to all US Attorneys and other DOJ prosecutors). During this time, the CEP has been revised and amended several times to take into account the Department’s evolving experience and approach to handling these cases.

As well as providing guidance to prosecutors, the CEP seeks to provide companies with greater certainty around the benefits of engaging with the Department. In doing so, the Department hopes to incentivize companies to disclose, cooperate and remediate.

Revisions made to the Corporate Enforcement Policy in January 2023

A new path to declination (open to more defendants but the bar is high and untested)

The best outcome for companies contemplated by the CEP is a declination from the Department to prosecute the case. Such declinations are nevertheless made public and require the subject company to disgorge any and all profits generated from the criminal conduct. Neither of these outcomes should be taken lightly, but they are better than the alternatives on offer. Prior versions of the CEP provided that a declination would be the presumed form of resolution if a company voluntarily disclosed criminal conduct, fully cooperated with the Department and remediated the issue in an timely and appropriate manner. However, a declination was not available if certain aggravating factors were present for the defendant company. These aggravating factors included if company had previously resolved a criminal matter, or if the case involved criminal conduct by senior company management.

The Department clearly believed that precluding declinations for such defendants altogether might disincentivize them from making voluntary disclosures. As a result, in revising the CEP it has opened a (narrow) path to declination for those companies that can demonstrate that, notwithstanding any aggravating factors:

  • A voluntary self-disclosure was made immediately upon the company becoming aware of the allegation of misconduct.
  • At the time of the misconduct and disclosure, the company had an effective compliance program and system of internal accounting controls, which enabled the identification of the misconduct and led to the company’s voluntary self-disclosure.
  • The company provided extraordinary cooperation with the Department’s investigation and undertook extraordinary remediation that exceeds the respective factors listed herein.

This is a high bar for sure. It is also not clear what the Department will consider to be sufficiently “immediate” disclosure or “extraordinary” cooperation and remediation. Neither are concepts previously contemplated in the CEP nor by the Criminal Division elsewhere. The prior versions of the CEP referred only to “prompt” disclosures, “full” cooperation, and “timely and appropriate” remediation. These standards still apply in the other scenarios discussed below. Exactly what extra needs to be done by defendants in this new category to obtain a declination remains to be seen.

Higher potential discounts on criminal penalties for disclosing and cooperating companies

Those companies for which a declination is not on the table are offered two broad types of incentives in the CEP.

The first is in the form of the resolution. Cooperating companies will be considered for resolution by means of a negotiated Non-Prosecution Agreement or a Deferred Prosecution Agreement, rather than the having to plead guilty to the Department’s charges to resolve the case. The revised CEP states that companies that disclose, cooperate and remediate will generally not be required to enter a guilty plea, even in cases that warrant a criminal resolution (rather than a declination) or even those that have aggravating factors.

The second offered incentive relates to the amount of the criminal penalty that the company will have to pay. The US Sentencing Guidelines consider both disclosure and cooperation in calculating the range of the appropriate criminal fine in each case. Further to that, the CEP provides that the Department will grant disclosing and cooperating companies who appropriately remediate additional discounts below the bottom-end of the Guidelines range. The revised CEP has increased these potential discounts as follows:

  • For companies that voluntarily disclose, fully cooperate and remediate: Between 50% and 75% discount (previously fixed at 50%).
  • For companies that do not voluntarily disclose but do fully cooperate and remediate: Up to 50% discount (previously up to 25%).

While the top-end of these discounts is higher, the Department has made clear in the revised CEP that companies will not automatically be afforded top-end discounts. The Department will consider a number of factors in determining where, within the discount range allowed by the CEP, each case will fall. This will include an assessment of the “extent and quality” of the company’s cooperation.

Of course, in assessing these elements the Department also has expectations as to when disclosures are considered truly “voluntary”, the extent of cooperation which will be considered “full,” and what level of remediation is “timely and appropriate”. Companies will have to meet these standards to the satisfaction of the Department in order to be considered eligible for these discounts. Some guidance on this is provided in the CEP (which has not been significantly amended in this latest version) but the Department retains significant discretion in making these assessments, particularly now the potential discount ranges have been expanded.


These latest revisions to the CEP offer further insight into how DOJ will consider resolving cases with a broader range of corporate criminal defendants. They also serve to highlight the complexities and inherent uncertainties of these cases.

The decision whether to voluntarily disclose criminal conduct, and when and how to engage with the Department, will remain a difficult one for companies and their boards to make having identified criminal conduct. These decisions will continue to be made on a case-by-case basis, taking into account all of the facts, circumstances and risks. These factors will include, but certainly not be limited to, the likely response of the DOJ outlined in its CEP. We will see whether the additional guidance, route to declination and potentially higher penalty discounts offered by the revised CEP will serve to incentivize more companies to disclose, or alter the approach of those which find themselves before the Department (whether having disclosed or not).

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By Robert Booker, Chief Strategy Officer, HITRUST

HITRUST Focus on Continuous Improvement

HITRUST has been dedicated to measuring and improving security maturity with accuracy, consistency, and integrity for over 15 years. We have done this by working closely with thousands of companies, their partners, regulators and trading partners, and security assessors. Cybersecurity threats and risks to technology systems are ongoing and ever-evolving, and Version 11 of the HITRUST CSF (HITRUST CSF v11) continues our shared commitment to the security journey we all travel together.

Security is an Ecosystem

The HITRUST CSF v11 builds on our experience working with entities with diverse risks and requirements. Input from security leaders from organizations of all sizes, plus our vast research, confirms that the need to assess, measure, and communicate security maturity is as important for companies with lower risks as it is for the largest, most complex companies, and those serving the most heavily regulated organizations.

Companies and their systems are integrated in new, exciting, and creative ways to form a living ecosystem. Such integration increases both the complexity of security assurance, and opportunities to leverage, or inherit, security controls from others. Companies may rely on their cloud service providers for key security features. They may use application software that provides valuable features and insights. Perhaps they manage diverse infrastructures that come from multiple acquisitions. Regardless, security requirements exist in an ecosystem where maturity can increase with capabilities and synergies and where shared vulnerabilities can weaken the ecosystem.

Metrics Lead to Maturity

Our work with companies at all stages of their security journeys has made it clear that they need the ability to start where they are, at the appropriate level for their current state. They can increase the level of security assurance delivered and measured by their program as their experience, risk maturity, and maturity of their security programs increase. This is why we continuously improve and expand our assessment portfolio. The introduction of HITRUST CSF v11 provides a critical foundation that companies can build upon and increase the level of security assurance based on their evolving business. CSF v11 provides portability with increasing maturity to ensure that the most relevant controls remain in place.

While the organization grows in security coverage and requirements. Where a company’s security and compliance team uses a consistent framework, their important and scarce internal experts grow in experience and ability to communicate the company’s security system design, operation, and documented maturity in a consistent and reliable manner.

Imagine a situation in which a company merges with another, expands, or restructures its technology operations. During the acquisition due diligence and following any major change, the security maturity of the related organizations is a major consideration. The system created through planned integration is critical. A common framework such as CSF v11 will allow for a rapid initial assessment of the foundational cybersecurity elements of the new entities, as well as allow for a longer-term and more comprehensive assessment of the entity’s security maturity over time. And, the use of a common framework provides consistency for security and compliance experts that all involved organizations can use to clearly educate each other about expectations and control requirements.

Growth of Maturity Through Traversability

An important design consideration of CSF v11 is the ability for a company to grow its security program and reuse past work to achieve higher levels of security assurance. This is accomplished by reusing the controls assessed in prior HITRUST assessments as the foundation for higher levels of assessment. Over time, a company can progressively traverse across the assessment portfolio to achieve higher levels of assurance using common control requirements. These include controls they may inherit from other organizations, like cloud service providers. Our conversations with security leaders across multiple industries have resulted in a portfolio of three security assurance levels focused on the needs of companies at different stages in their journey, progressing as they invest in and mature their security programs:

  • Essential Hygiene (e1) for lower-risk organizations, validating the most critical cybersecurity controls.
  • Leading Security Practices (i1) for organizations with robust information security programs, ready to demonstrate controls that protect against current and emerging threats. Leading Security Practices certification can build on essential cybersecurity controls as organizations progress in their security journey with reduced complexity and increased efficiency.
  • Expanded ability for organizations to demonstrate regulatory compliance and risk management (r2) against authoritative sources such as HIPAA and the NIST Cybersecurity Framework. This also supports expanded tailoring of controls based upon identified risk factors.

The goal is consistency as companies expand their risk management and compliance requirements with minimal rework of their security program.

Consistency Through Common Assurance

Security delivery and maturity do not begin or end with the control framework or a comprehensive set of security assurance levels. Instead, the value of a security assurance program is directly tied to the quality of the underlying assurance system, which includes how the security requirements are selected, documented, assessed, and ultimately measured. HITRUST provides four critical success factors, inherent to the portfolio, that, together, provide the highest level of Rely-ability™ available today.

Transparency requires a publicly available and widely adopted control framework with control selection, evaluation, and scoring all clearly understood. Consistency of results is assured when different assessors reach consistent outcomes and when reports can be compared. Accuracy of assurance occurs when the granularity of requirements is repeatable and when scoring is formula-based and quantifiable. And, lastly, Integrity of the approach to assurance is delivered when all validated assessments from all assessors receive a consistent quality inspection to insure objectivity and consistency of approach.


The continuing evolution of the HITRUST CSF provides a vital foundation for companies of all security levels and across their entire technology ecosystem. The ability to measure maturity using demonstrated metrics and traverse an assurance portfolio as requirements evolve, and to communicate requirements clearly, are all critical success factors in security assurance. Rely-able™ assurance is foundational to ultimately measuring and demonstrating that the program is delivering the security value required and expected.

To Learn more about the HITRUST Essentials, 1-year (e1) Assessment click here.


About the Author

robert bookerRobert Booker, Chief Strategy Officer, HITRUST

Robert Booker serves as the Chief Strategy Officer for HITRUST following his retirement from over 30 years as a cyber security leader and technology professional. Prior to HITRUST, Robert spent 13 years as the Chief Information Security Officer for a Fortune 10 company dedicated to the healthcare industry. Prior to his leadership in healthcare, Robert served as a cyber security leader with a multi-national telecommunications company leading and supporting information security programs and initiatives for numerous global enterprises in the pharmaceutical and consumer products sectors.

Robert’s focus throughout his healthcare tenure has been the application of security principles to clinical care, information, and technology to serve the health care environment and industry, the protection of information entrusted to the companies he has served, and the measurement of sustainable cyber security programs. Robert is passionate about continuously measuring and improving system capabilities given the evolving risk landscape and active cyber threats and has actively represented his programs to executives, directors, regulators, risk underwriters and rating agencies all focused on understanding not only the maturity of the system he has represented but the leadership philosophy and principles needed to continuously invest in a robust cyber security capability at enterprise scale.

Robert’s career has been marked by active collaboration across the companies and industries where he has served. Robert has engaged with other industry leaders and customers all focused on serving healthcare. Robert serves on the Board of Directors of HITRUST where he has been instrumental in establishing a common security framework for the health industry and in supporting the adoption of security principles by companies the health ecosystem and other industries.

Throughout his career, Robert has spoken at multiple venues on topics ranging from cyber security program principles to leadership development for cyber professionals.

Robert is a U.S. Navy veteran and an alumnus of the first FBI CISO Academy (2015 class).

The post Power of the Portfolio appeared first on HITRUST Alliance.


Just before the holidays, President Biden signed two bills passed in the final days of the last Congress that contain a number of provisions with implications for sanctions, export controls, and supply chain restrictions:

  1. On December 23, 2022, President Biden signed into law the National Defense Authorization Act (“NDAA“) for Fiscal Year 2023 (P.L. 117-263). The measure includes a number of provisions relating to US export controls, sanctions, and related subjects, including additional sanctions targeting Burma, prohibitions on the use of Chinese semiconductors by US government agencies, and provisions relating to Russia’s invasion of Ukraine.
  2. On December 29, 2022, President Biden signed into law the Consolidated Appropriations Act, 2023 (P.L. 117-328). The measure includes provisions relating to sanctions and related subjects, including authorization for the transfer of forfeited assets to aid Ukraine, and funding for initiatives to combat forced labor and sanctions implementation.

Below we discuss the key highlights of the newly enacted legislation.

Sanctions-Related Provisions

  • Interagency Strategy to Disrupt Narcotics Production and Trafficking in Syria

Section 1238 of the NDAA would require the Secretary of State, not later than 180 days after enactment, to develop an interagency strategy for disrupting and dismantling narcotics production and trafficking and affiliated networks linked to the regime of Bashar al-Assad in Syria, including a detailed plan to dismantle the narcotic networks and to use sanctions authorized under the Caesar Syria Civilian Protection Act of 2019.

  • Modification to Annual Report on Military and Security Developments Involving Russia

Section 1243 of the NDAA would modify the requirements for the Secretary of Defense to prepare a new section as part of the “Annual Report on Military and Security Developments Involving the Russian Federation” on the impact of US sanctions on improvements to the Russian military and its proxies, including a description of how sanctions have impacted Russian private military companies’ behavior and an assessment of the impacts of the maintenance or revocation of such sanctions.

  • The BURMA Act of 2022

Sections 5567-5579 of the NDAA incorporate a modified version of the Burma Unified through Rigorous Military Accountability Act of 2022 (the “BURMA Act”). The BURMA Act imposes two categories of sanctions on Burmese government officials and state-owned enterprises, subject to certain waiver authority and exceptions.

First, not later than 180 days after enactment, Section 5571(a) directs the President, subject to certain exceptions and waiver authority, to impose mandatory blocking, foreign exchange, and visa sanctions on any non-US person who the Administration determines is a senior official in the Burmese military or political government, the defense sector, or state-owned enterprises in the industrial or executive sector that financially benefit the Burmese military. Section 5571(b) also authorizes corresponding account or payable-through account sanctions against any non-US financial institution that conducts a significant transaction on behalf of any such sanctioned person.

Second, Section 5571(c) also authorizes the President to impose discretionary sanctions on the Myanma Oil and Gas Enterprise, any Burmese state-owned enterprise that benefits the Burmese military, any person involved in activities related to the February 2021 coup d’etat in Burma, or any entity that provides material support to the Burmese military.

Section 5572 also calls for the development of a comprehensive strategy with respect to sanctions on Burma to coordinate sanctions across the US government (including with respect to requiring new reports to Congress), promote multilateral sanctions on the Burmese military and its allies, and exert additional pressure on China and Russia to enlist their support for a greater multilateral effort in Burma.

  • Sanctions Against Trade in Russian Gold

Section 5590(a) of the NDAA would require the President, not later than 90 days after enactment, to submit a periodic report to Congress identifying non-US persons that knowingly participated in a significant transaction for the sale, supply, or transfer (including transportation) of gold from Russia or in which the Government of Russia has an interest, including from reserves of the Central Bank of the Russian Federation held outside the Russian Federation. Section 5590(b) would then require the President, subject to certain waiver authority and exceptions, to impose blocking and visa sanctions against those persons identified in the reports.

  • Accountability for Human Rights Abuses in Iran

Section 5592 of the NDAA states that it is US policy to hold to account any official of the government of the Islamic Republic of Iran who is responsible for human rights abuses in the form of politically motivated imprisonment, including through the imposition of sanctions pursuant to the Global Magnitsky Human Rights Accountability Act and other available authorities.

  • Banking Transparency for Sanctioned Persons Act of 2022

Section 5706 of the NDAA incorporates the Banking Transparency for Sanctioned Persons Act, which would require the Secretary of the Treasury, not later than one year after enactment, to issue an annual report detailing specific licenses issued by Treasury in the preceding year that authorize US financial institutions to provide financial services to the government of a state sponsor of terrorism, or persons sanctioned by the Office of Foreign Assets Control’s under Global Magnitsky Sanctions. These licenses typically allow for the facilitation of certain kinds of trade in humanitarian (e.g., medicines and medical devices) and agricultural (e.g., food and farming supplies) goods.

  • Assessments of the Effects of Imposed Sanctions Relating to Russia’s Invasion of Ukraine

Section 6807 of the NDAA would require a semiannual assessment of the effects of sanctions imposed with respect to Russia’s invasion of Ukraine, not later than 180 days after enactment. The Director of National Intelligence (“DNI”) would be required to submit a report outlining Russia’s efforts to circumvent sanctions through direct or indirect engagement from the regimes of Cuba, Nicaragua, Venezuela, China, Iran, and any other country the Director deems appropriate. The report must also contain a description of the material effects of US and allied sanctions on individual sectors of the Russian economy, senior leadership, senior military officers, and state-sponsored and state-affiliated actors targeted by such sanctions, including a discussion of those sanctions that had significant effects, as well as those that had no observed effects. The report must also describe evasion techniques used by Russia, entities and persons covered by the sanctions, and by other governments, entities, and persons who have assisted in the use of such techniques.  This includes, e.g., the use of digital assets for sanctions evasion.

  • Greater Coordination on Sanctions Strategy

Section 9107 of the NDAA would obligate the Secretary of the Treasury, not later than 90 days after enactment, to submit a report to Congress on the steps that the Department of State’s s Office of Sanctions Coordination has taken to coordinate its activities with the Department of the Treasury and humanitarian aid programs, in an effort to help ensure appropriate flows of humanitarian assistance and goods to countries subject to US sanctions.

  • Establishment of the Financial Integrity Fund

The Consolidated Appropriations Act would establish a funding mechanism within the Treasury Department, called the Financial Integrity Fund, from which whistleblowers who report incidents of sanctions evasion or money laundering that in turn lead to successful US enforcement actions are to be paid. It would also set a minimum percentage of 10 percent of the total amount of financial punishments levied against entities for their illegal actions that is to be awarded to the whistleblower. Similar to the Securities Exchange Commission whistleblower program, the anti-money laundering and sanctions evasion whistleblower program will have a revolving fund that is to be paid into and regularly replenished with monies from fines imposed on violators.

  • Authorization of the Transfer of Forfeited Property to Help Ukraine

The Consolidated Appropriations Act would allow the Attorney General to transfer to the State Department proceeds from the sale of forfeited assets from persons subject to sanctions for Russia’s invasion of Ukraine and related crimes in order to provide foreign assistance to Ukraine, with oversight and reporting requirements to Congress.

  • Implementation of the Global Magnitsky Human Rights Accountability Act

The Consolidated Appropriations Act explanatory statements indicate that the law includes funding to continue to strengthen implementation of the Global Magnitsky Human Rights Accountability Act (22 U.S.C. 10101 et seq), including for the State Department’s Bureaus of Economic and Business Affairs, International Narcotics and Law Enforcement Affairs, and Democracy, Human Rights, and Labor. In addition, the Secretary of State would be required, within 90 days after enactment, to consult with the House and Senate Appropriations Committees on the implementation of these directives.

Export Control Provisions

  • Extension of Certain Export Controls

Section 5589 of the NDAA would extend the sunset date for the prohibition on the commercial export of covered munitions items to the Hong Kong Police Force under Public Law 116-77 through the year 2024.

  • Enhanced Intelligence Support for Export Controls and Foreign Investment Screening

Section 6311 of the NDAA would require the DNI to designate an element of the intelligence community to carry out a pilot program to assess the feasibility and advisability of providing enhanced intelligence support, including intelligence derived from open source, publicly and commercially available information in aid of export controls and foreign investment screening. The pilot program would share information with the Department of Commerce and the Department of Homeland Security to support their respective export control and investment screening functions.

Provisions on Supply Chain Restrictions

  • Prohibition on Certain Semiconductor Products and Services

Section 5949 of the NDAA would prohibit the US government from procuring or contracting with entities to obtain any electronic parts, products, or services that include covered semiconductor products or services from certain Chinese companies, including Semiconductor Manufacturing International Corporation, ChangXin Memory Technologies, Yangtze Memory Technologies Corp, or any subsidiary or affiliate of such entities. Government contractors would be responsible for certifying the non-use of covered semiconductor products or services in such parts or products. The prohibitions may be waived by the Secretaries of Defense, Commerce, Homeland Security, and Energy, as well as the DNI, for “critical national security interests.”

The semiconductor prohibitions will take effect five years after the date of enactment. Within three years after the enactment date, the Federal Acquisition Regulatory Council must issue regulations implementing the prohibitions. Not later than two years after enactment, the Federal Acquisition Security Council must issue recommendations to mitigate supply chain risks relevant to federal government acquisition of semiconductor products and services, and recommendations for regulations implementing the prohibitions.

For further details on these semiconductor prohibitions, we will soon be publishing a more detailed blog post on this piece of legislation on our Supply Chain Compliance Blog.

  • Implementation of the Uyghur Forced Labor Prevention Act

The Consolidated Appropriations Act explanatory statements indicate that the law fully funds implementation of the Uyghur Forced Labor Prevention Act (“UFLPA”), adjusted for funding provided above the request in fiscal year 2022. In addition, Customs and Border Protection would be required, within 60 days of enactment, to provide a briefing to the House and Senate Appropriations Committees on implementation of the UFLPA.

The post US President Signs Two Bills with Implications for Sanctions, Export Controls, and Related Subjects appeared first on Global Compliance News.


In brief

The strengthening partnership between the United States (US) and Africa is having a positive impact on the myriad of trade and investment opportunities created by the African Continental Free Trade Area. At the recent US-Africa Leaders’ Summit in Washington, DC in December 2022, a number of exciting initiatives and investments were announced by the US to boost two-way trade and investment between the two regions.

In depth

There was more good news for the successful implementation of the African Continental Free Trade Area (AfCFTA) agreement in December 2022, when a Memorandum of Understanding (MoU) was signed between the United States (US) Trade Representative and the AfCFTA Secretariat at the US-Africa Leaders’ Summit (Summit) in Washington, DC. The MoU covers expanded engagement between the two regions and intends to “promote equitable, sustainable, and inclusive trade; boost competitiveness; and attract investment to the continent.”

It was also announced at the Summit that US intended to invest USD 55 billion in Africa over the next three years, and that USD 15 billion would be deployed in “two-way trade and investment commitments, deals, and partnerships that advance key priorities, including sustainable energy, health systems, agribusiness, digital connectivity, infrastructure, and finance.”

The trade partnership between the US and Africa has been strengthening for some time. In July 2021, the Biden Administration announced that it would renew the US Prosper Africa initiative, started in 2019, with a focus on increasing reciprocal trade and investment between the US and African countries. At the time, the US said that the initiative would focus on improving trade and investment in sectors such as infrastructure, energy and climate solutions, healthcare and technology. Seventeen US government agencies working as part of this initiative were given a mandate to, among other things, empower African businesses, offer deal support and connect investors from the US with those in Africa. The renewed Prosper Africa initiative also focuses on projects that support women, and small and medium enterprises in Africa. It was further announced at the December 2022 Summit that, through the Prosper Africa initiative, plans were being made to boost African exports to the US by USD 1 billion through investments and partnerships, and to mobilise an additional USD 1 billion in US investment in Africa.

The US has often expressed its support for AfCFTA, stating that it wants to see the growth of Africa’s economic power in the world. All future trade agreements signed between the US and African countries will have to align with AfCFTA’s trade stipulations and, considering the Biden Administration’s environmental stance, new agreements will likely also include climate change provisions and tariffs on high-carbon imports.

The Administration has also been focusing on trade agreements that don’t disadvantage US businesses and consumers. In July 2022, the US-Kenya Strategic Trade and Investment Partnership (STIP) was signed, outlining the enhanced engagement and high standard of commitment between the two countries, and focusing on increased investment and sustainable and inclusive growth that will be of benefit to both countries’ citizens and businesses. The agreement also included the intention to support regional economic integration in East Africa. Further reciprocal bilateral and regional trade agreements between the US and African countries are expected to be signed in the near future. Such agreements are expected to eventually replace the non-reciprocal African Growth and Opportunity Act (AGOA), which allows duty- and quota-free exports from eligible African countries into the US, and which is due to expire in 2025.

Trade between the two regions is steadily rising. At the Summit, the Biden Administration noted that since 2021, the US has assisted in closing more than 800 two-way trade and investment deals worth around USD 18 billion across 47 African countries. In addition, the value of private investment deals from the US into Africa since 2021 is valued at USD 8.6 billion. The US focus on increased engagement and continued trade and investment in Africa has clearly already led to an increase in trade and investment opportunities in both regions.

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In brief

In May 2022, the Indo-Pacific Economic Framework for Prosperity (IPEF) was launched between Australia, Brunei, Fiji, India, Indonesia, Japan, South Korea, Malaysia, New Zealand, the Philippines, Singapore, Thailand, the US and Vietnam. These 14 IPEF partner countries represent over 40% of the global economy and 28% of the global goods and services trade.

IPEF has been flouted by the US government as central to its commitment in the region. The framework, centered around four pillars, is an ongoing process, with a number of initiatives and projects under consideration that will significantly impact various sectors and states. IPEF is not a traditional trade agreement with market access commitments, and instead adopts a modular approach with a reliance on tailored initiatives (such as technology, harmonization, focused investments and joint projects).  On account of its specified focus on labor standards and issues, IPEF is likely to have an ongoing impact on labor regulations and trends among partner countries, including Vietnam.

Aside from the specified pillars, there are also a number of key themes that are prevalent throughout IPEF, including private sector engagement and investment, technology and innovation, as well as labor standards and regulations. On account of its specified focus on labor standards and issues, IPEF is likely to have an ongoing impact on labor regulations and trends among partner countries, including Vietnam.

The four pillars

IPEF is based around four pillars, of which trade is the most impactful on labor matters, as detailed below.

Pillar one: “Connected economy” — Trade

The trade pillar focuses on reducing nontariff trade barriers to increase business connectivity through expanding market access opportunities across IPEF members. A specific emphasis is placed on the promotion of trade facilitation, with a focus on digital trade and the digital economy, cross-border data flows and cybersecurity. This pillar will also aim to accentuate consistent administrative rulemaking and transparency to help create opportunities for both businesses and workers.

IPEF also specifically envisions high standard commitments in the labor and environment fields to enhance regional competitiveness, while supporting workers and encouraging higher regional labor and environmental standards. This stated emphasis on labor regulations demonstrates a renewed focus from the US through IPEF on labor issues and standards throughout the region and in member states, including Vietnam.

Pillar two: “Resilient economy” — Supply chains

Supply chains form the second IPEF pillar. A key theme of this pillar is achieving supply chain resilience through encouraging supply chain diversification and fostering favorable market conditions. Initiatives discussed by member countries include novel supply chain and logistics commitments that are resilient to market disruptions and supply shocks, such as training skilled workers and investing in local suppliers. This is an area of crucial importance to Vietnam, which has been a net beneficiary of supply chain diversification efforts. Accordingly, this continued emphasis under IPEF presents various opportunities for Vietnam.

Pillar three: “Clean economy” — Clean energy, decarbonization and infrastructure

IPEF has placed sustainable development and combatting climate change as one of its main cornerstones. This is reflected in the third pillar, which is centered on green technology and infrastructure development. The third pillar focuses on commitments to counter the effects of climate change, including by investing in clean energy, building sustainable infrastructure and the proliferation of decarbonization technologies. This pillar is indicative of the potential for investments in Vietnam’s infrastructure and renewable energy sectors.

Pillar four: “Fair economy” — Tax and anti-corruption

IPEF partners will seek commitments to enact, enforce and encourage effective tax, anti-money laundering and anti-corruption regimes that are in line with existing multilateral obligations. Through strengthening anti-corruption initiatives and streamlining tax administration efficiency, IPEF aims to introduce horizontal benefits to the private sector via an overall improvement to the regional business environment.

Key themes

Private sector engagement

IPEF places a strong emphasis on close collaboration with the private sector. Considering the role of private investment and private-public partnerships in IPEF initiatives, there have been substantial consultations with the business community to seek private sector expertise and comments. As IPEF encourages continued engagement and input from private industry throughout its negotiating rounds and at stakeholder events, there is ample opportunity for companies in the region to shape and influence policy decisions and direction.


Technology is also set to play a crucial role to the various IPEF pillars, particularly in relation to supporting a low carbon transition through R&D and infrastructure, as well as joint support for relevant projects in member countries. IPEF further seeks to support an open and secure ICT system to encourage cross-border data flows and foster regional private sector growth. Key technologies highlighted as instrumental to the future of IPEF and the region in general include 5G, OpenRAM, submarine cables and data centers.

Developing economies

Another area of relevance to Vietnam is the intended role of IPEF in relation to developing countries. Opportunities for development are evident in the trade pillar, as well as the increased opportunities for investment, infrastructure expansion and connectivity through digital trade and joint projects. IPEF also aims to facilitate skilled job creation in developing countries through increased trade and providing technical assistance and capacity building to help meet the rules and high standards to be implemented under IPEF.

Vietnam perspective

IPEF is an ongoing process that is proposed as an alternative model to traditional treaties, and although it does not address tariff reductions or currently involve binding commitments in relation to Vietnam — it is envisioned as a precursor for continued negotiations in this context. Various initiatives will have the capacity to foster Vietnam’s continued integration into global supply chains and impact issues of importance to Vietnam — such as infrastructure development, renewable energy and foreign investment. Intended rules and standards under IPEF initiatives will also likely have the capacity to impact the future regulatory environment in Vietnam.

Labor considerations

The most relevant pillar to labor regulations is trade. IPEF ministerial statements on the trade pillar have made direct references to the pursual of provisions and initiatives related to labor practices and standards to the explicit benefit of workers. There has also been specific mention of trade initiatives contributing to inclusive growth and the promotion of adopting internationally recognized labor rights (based on the International Labour Organization Declaration on Fundamental Principles and Rights at Work) in domestic regulations, as well as encouraging corporate accountability and cooperative mechanisms on emerging labor issues in support of labor rights and workforce development, including with respect to the digital workforce.

Under the supply chain pillar, there is also a stated emphasis on initiatives that invest in the training and development of skilled workers to support supply chain resilience. In addition to stated areas involving labor standards, a common thread throughout all IPEF pillars is a focus on human-centric results, with workers and job creation mentioned in various contexts. This highlights that many of the initiatives formulated under IPEF will also likely be viewed through the lens of labor standards.

Comments from public officials at the 2023 Indo-Pacific Business Forum discussing IPEF also demonstrated an emphasis on supporting workers and promoting high labor (and environmental) standards in the region. This is reflective of the overarching goals under IPEF of implementing high standard rules and agreements across various initiatives and sectors. Considering this, it is likely that various specific IPEF projects and agreements, particularly on investments and trade, will be tied to certain standards in labor regulations and practices.

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In brief

On 14 December 2022, the Securities and Exchange Commission (SEC) proposed four separate rulemakings under the Securities Exchange Act of 1934 (“Exchange Act“) that would create a federally defined best execution standard for broker-dealers and overhaul the US equities market structure (collectively, “Market Structure Proposals“).

If adopted in their current form, these proposals would meaningfully impact market participants and practices. Given the nearly 1,700 pages of combined rules proposals, firms may need to devote significant resources just to digest their potential impact on particular business models.

In a series of Client Alerts, we will attempt to dissect each of these Market Structure Proposals. In this Client Alert, we provide an overview, insights, and key takeaways for the Regulation Best Execution (Reg Best Ex) Proposal.

Click here to access the full alert.

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On January 5, 2023, the US and Turkish governments took joint action imposed sanctions targeting four individuals and two entities determined to be associated with the financial facilitation network of the Islamic State of Iraq and Syria (“ISIS”).  See here for the US action and here for the Turkish action.

The designations target the Islamic State group’s head of foreign financing, Abd Al Hamid Salim Ibrahim Ismail Brukan al-Khatuni, and his network coordinated by his sons. The US Treasury Department’s press release explains that this network played a key role in money management, transfer, and distribution for ISIS in the region.  

The sanctions were imposed by the US Treasury Department’s Office of Foreign Assets Control (“OFAC”), the Turkish Ministry of Treasury and Finance, and the Turkish Ministry of Interior.  OFAC added these parties to its List of Specially Designated Nationals or Blocked Persons (“SDN List”), essentially cutting these parties off from the US financial system and transactions involving a US nexus.  Türkiye’s Treasury and Interior ministries implemented an asset freeze against the targeted parties.

This development points to the increasing levels of engagement and international coordination on sanctions policy, including by countries like Türkiye, which have not traditionally used sanctions as a policy tool as routinely as some nations.The authors acknowledge the assistance of Ryan Orange with the preparation of this blog post.

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In brief

Having to click through a gauntlet of screens to cancel recurring subscriptions. Being told you are foolish if you decline a service. Discovering you were charged extra fees that were not clearly brought to your attention earlier. Finding it hard or confusing to configure your privacy settings to high. These and similar experiences arise when you encounter “dark patterns”, a term that US authorities are increasingly using to refer to interface design strategies that manipulate users into making choices they likely wouldn’t have otherwise made and that may cause harm.

Numerous US authorities are clamping down on these strategies by defining and restricting “dark patterns” in laws, regulations and guidance documents, and instituting related enforcement actions. For example, the Federal Trade Commission (FTC) published a detailed report in September 2022 examining a multitude of practices that the agency considers to be dark patterns, some of which the FTC has consistently found to be unlawful, others of which may be found unlawful based on a case-by-case evaluation of all attendant facts. State-level regulators are also increasingly characterizing manipulative design practices they consider to be unfair and deceptive as “dark patterns”. For example, the attorneys general of 17 states recently addressed an open letter to the FTC urging it to scrutinize dark patterns in digital advertising, including to recognize that the negative effects of dark patterns cannot, in all cases, be cured merely by more prominent disclosures. Companies have paid significant sums to the FTC and state attorneys general to settle allegations that they manipulated consumers through dark patterns, such as by making it difficult for subscribers to cancel their subscriptions, obfuscating information to subvert consumers’ privacy choices, using confusing interfaces to lead consumers into making unwanted purchases, permitting players of an online game to purchase items without confirming the CVV number of a saved payment card, or locking users out of their accounts if they submit a complaint.

A number of recently enacted US laws also define and restrict the use of dark patterns. For example, the California Consumer Privacy Act, California Age-Appropriate Design Code Act, Colorado Privacy Act, and Connecticut’s Act Concerning Personal Data Privacy and Online Monitoring all expressly restrict the use of “dark patterns”. Draft regulations under the privacy laws of California and Colorado include a number of examples of dark patterns, covering topics such as symmetry in choice and choice architecture, and establish that a business’ intent not to be deceptive and the widespread usage of a practice do not make a dark pattern permissible. Even if the practices at issue are not expressly labeled as “dark patterns”, businesses should be aware that US laws prohibit various deceptive or misleading practices, such as the Restore Online Shoppers’ Confidence Act, which prohibits charging consumers for goods or services over the Internet through a “negative option feature” unless certain conditions are met, such as making clear and conspicuous disclosures and implementing “simple mechanisms” for a consumer to stop recurring charges.

To help avoid allegations that your business’ practices constitute unlawful dark patterns, we recommend that you:

  1. Disclose all material terms relating to an offer, service or feature upfront, clearly and prominently. Use plain, straightforward language that does not use technical jargon in a format that is easy on the eyes. Consider specifically bringing the user’s attention to any details that are unfavorable to them.
  2. Present your options in a symmetrical way. For example, when providing a user with options, avoid emphasizing one option with a brighter or bigger font, or using loaded language to manipulate the user into selecting one option over another. Symmetry also applies in the number of steps; the option that is less favorable to you should not take more time or steps to select.
  3. Check for unintuitive design. This can apply to the use of confusing language (e.g., double negatives) and unintuitive placement of buttons (e.g., presenting consumers with selections that read “yes” then “no”, then suddenly changing the order into “no” then “yes”).
  4. Make it easy for users to unsubscribe, opt-out, or change their settings to ones that are less favorable to you. For example, do not hide unsubscribe links, do not require users to scroll through unnecessary text or ads to unsubscribe, and honor unsubscribe requests as soon as practicable.
  5. Have a neutral third-party test-run your interface with a view to detecting and deleting dark patterns. A fresh set of eyes can help spot issues that you would otherwise have missed, and it helps if the eyes are trained to spot issues that may be considered confusing, manipulative, unfair or deceptive to an average consumer.

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In brief

Over the past week, the Federal Trade Commission (FTC) took a major step to expand competition policy deeper into labor markets.

On July 9, 2021, President Biden signed an Executive Order on antitrust and competition policy that identified non-compete clauses as an area for greater scrutiny.[i] The Executive Order invited the FTC to use its “statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”[ii]  This week, the FTC significantly advanced the Executive Order’s directive: 

  • On January 5, 2023, the FTC voted 3-1 to propose a new rule that would significantly restrict the use of non-compete clauses between employers and employees.[iii] The FTC’s proposed rule represents the FTC’s first foray into Section 5 competition rulemaking under Chair Lina Khan. 
  • The proposed rule follows a set of enforcement actions taken by the FTC against non-compete covenants in certain employer contracts.  On January 4, 2023, just one day prior to announcing the proposed rule, the FTC voted 3-1 to issue proposed orders against two affiliated security guard companies (Prudential Security, Inc. and Prudential Command Inc.) and their owners and two glass-container companies (O-I Glass, Inc. and Ardagh Group S.A.).[iv] The FTC alleged that these companies employed non-compete clauses that restrict workers’ freedom to accept employment with a competing business, form a competing business, or compete with that employer in any other way.[v]

Click here to access full alert.

[i] Executive Office of the President, Executive Order on Promoting Competition in the American Economy (July 9, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/.
[ii] Id.
[iii] Press Release, Fed. Trade Comm’n, FTC Proposes Rule to Ban Noncompete Clauses, Which Hurt Workers and Harm Competition (Jan. 5, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-proposes-rule-ban-noncompete-clauses-which-hurt-workers-harm-competition. Chair Lina M. Khan, Commissioner Rebecca K. Slaughter, and Commissioner Alvaro M. Bedoya issued a majority statement on the proposed rule. Statement of Chair Lina M. Khan Joined by Commissioner Rebecca Kelly Slaughter and Commissioner Alvaro M. Bedoya, Regarding the Notice of Proposed Rulemaking to Restrict Employers’ Use of Noncompete Clauses, Comm’n File No. P201200 (Jan. 5, 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/statement-of-chair-lina-m-khan-joined-by-commrs-slaughter-and-bedoya-on-noncompete-nprm.pdf. Commissioners Slaughter and Bedoya filed a separate concurring statement. Statement of Commissioner Slaughter Joined by Commissioner Alvaro M. Bedoya, On the Notice of Proposed Rulemaking on Non-Compete Clauses, Comm’n File No. P201200 (Jan. 5, 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/statement-of-commissioners-slaughter-and-bedoya-on-proposed-rulemaking-noncompete.pdf. Commissioner Wilson filed a dissenting statement. Dissenting Statement of Commissioner Christine S. Wilson Regarding the Notice of Proposed Rulemaking for the Non-Compete Clause Rule, Comm’n File No. P201200-1 (Jan. 5, 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/p201000noncompetewilsondissent.pdf.
[iv] Chair Lina M. Khan, Commissioner Rebecca K. Slaughter, and Commissioner Alvaro M. Bedoya issued a majority statement on these matters. Statement of Chair Lina M. Khan Joined by Commissioner Rebecca Kelly Slaughter and Commissioner Alvaro M. Bedoya In the Matters of Prudential Security, O-I Glass Inc., and Ardagh Group S.A. Commission File No. 2210026 & 2110182 (Jan. 4, 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/21100262110182prudentialardaghkhanslaughterbedoyastatements.pdf; Commissioner Christine S. Wilson filed dissenting statements relating to both sets of proposed orders. Dissenting Statement of Commissioner Christine S. Wilson, In the Matter of Prudential Security, File No. 211-0026 (Jan. 4, 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/wilson_dissenting_statement_-_prudential_security_-_final_-_1-3-23.pdf; Dissenting Statement of Commissioner Christine S. Wilson, In the Matter of O-I Glass, Inc. and In the Matter of Ardagh Group S.A., File No. 211-0182 (Jan. 4, 2023), https://www.ftc.gov/system/files/ftc_gov/pdf/wilson-dissenting-statement-glass-container-cases.pdf.
[v] Compl., In re Prudential Security, Inc., Dkt. No. C-XXXX at ¶ 1 (F.T.C. 2022); accord Compl., In re O-I Glass, Inc., Dkt. No. C- at ¶ 1 (F.T.C. 2022); Compl., In re Ardagh Group S.A., Dkt. No. C- at ¶ 1 (F.T.C. 2022).

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