Red Flags Rising

Michael Huneke & Brent Carlson

Welcome to Red Flags Rising, where we examine how geopolitics and national security are reshaping corporate enforcement and compliance.

In an era where “economic security” drives government intervention through increasingly strict and consequential export controls, economic sanctions, inbound and outbound investment restrictions, and tariffs, legacy mindsets and assessments of enforcement risk create liability pitfalls for the uninformed.

Under the “high probability” standard driving this new enforcement playbook, spotting and effectively mitigating “red flags” has a new urgency.

We will help you identify and understand the trends, key insights, and practical solutions that are essential to companies, boards of directors, c-suite management, and compliance professionals in these turbulent times.

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#45
September 10 · 26 min
M&A and Export Controls - from Art of War to Art of the Deal
Mike and Brent dust-off a discussion recorded in May 2026, before the prior US-China trade summit, which is yet again timely with the next round of meetings coming up on September 24, 2026. They also discuss highlights from their May 2026 national security enforcement and compliance event in Washington, DC, at which Assistant Secretary for Enforcement David Peters spoke. Then they discuss how companies can best manage US export controls risks in the context of M&A pre- and post-acquisition due diligence. Specifically, Mike and Brent set the stage for the M&A discussion (01:49); preview what Sun Tzu’s Art of War means for the upcoming negotiations (03:50); provide a recap of their May 5, 2026, national security compliance and enforcement event in Washington, DC and the key takeaways from the event in terms of M&A and export controls (05:36); discuss Brent’s recent NYU Program on Corporate Compliance & Enforcement (PCCE) article and how Brent’s Fraud Four-Circle Framework (SM) can help with pre-acquisition due diligence based on some anecdotal evidence from his own experience (10:32); some anecdotes from Mike’s experience (14:43); how export controls now pose “central compliance risks” in terms of boards of directors’ duty of oversight under Delaware law (20:35); and how these ideas can help sellers, not just buyers (23:36); Mike and Brent then conclude with the latest installment of Brent’s “Managing Up” segment (24:41). Contact Brent: brent@redflagsrising.com More about Brent: www.redflagsrising.com/founder Connect with Brent on LinkedIn: https://www.linkedin.com/in/brent-carlson-41ba692/ Brent’s article referenced in the episode: Brent Carlson, “A Light Shines Through the Darkness in Disputes, Investigations, and Trade Compliance: A Fresh Look at the Classic Fraud Triangle with the Fraud Four-Circle Framework℠,” NYU PCCE (Jan. 8, 2026), https://wp.nyu.edu/compliance_enforcement/2026/01/08/a-light-shines-through-the-darkness-in-disputes-investigations-and-trade-compliance-a-fresh-look-at-the-classic-fraud-triangle-with-the-fraud-diamond-framework-sm/ Contact Mike: michael.huneke@morganlewis.com More about Mike: https://www.morganlewis.com/bios/michaelhuneke Connect with Mike on LinkedIn: https://www.linkedin.com/in/mhuneke/
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#44
September 1 · 38 min
The FCC Covered List Uncovered, with Loyaan Egal
Mike and Brent invite Loyaan Egal on the podcast to discuss recent developments regarding the US Federal Communications Commission’s (FCC’s) “covered list” and its implications for trade compliance professionals. Specifically, Mike, Brent, and Loyaan discuss Loyaan’s prior government service in both DOJ and the FCC (01:05); the FCC’s authorities and role (05:29); the US national security concerns driving the US administration’s increasing recourse to the covered list (11:13); what potentially impacted importers should be doing to get ahead of rumored additions to the covered list (15:28); how the conditional approval process works for exception requests (19:22); what importers should expect next in terms of rulemaking (23:55); recent reports that optical transceivers might be soon added to the covered list, and the potential implications for data centers and for companies in the optical transceiver supply chain (26:03); how in the president’s second term the FCC is filling a role previously envisioned for the Commerce Department’s Bureau of Industry & Security’s Office of Information and Communications Technology and Services (OICTS), and speculation as to why that is happening (28:13); and what companies should be thinking about in terms of getting ahead of potential FCC enforcement actions (29:54). They then conclude with the latest installment of Brent’s “Managing Up” segment (36:31). More about Loyaan: https://www.morganlewis.com/bios/loyaanegal Connect with Loyaan on LinkedIn: https://www.linkedin.com/in/loyaan-egal/ Contact Loyaan: loyaan.egal@morganlewis.com Reuters Article: Alexandra Alper, “Trump administration drafting ban on Chinese data center devices, sources say” (Aug. 4, 2026): https://www.reuters.com/world/trump-administration-drafting-ban-chinese-data-center-devices-sources-say-2026-08-04/ More about Brent: https://www.redflagsrising.com/founder Connect with Brent on LinkedIn: https://www.linkedin.com/in/brent-carlson-41ba692/ Contact Brent: brent@redflagsrising.com More about Mike: https://www.morganlewis.com/bios/michaelhuneke Connect with Mike on LinkedIn: https://www.linkedin.com/in/mhuneke/ Contact Mike: michael.huneke@hugheshubbard.com
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#43
July 20 · 37 min
BIS's New Enforcement KPI - Challenges and Opportunities
Mike and Brent provide their day-of reactions to July 14, 2026, testimony by U.S. Department of Commerce Under Secretary for Industry & Security, Jeffrey Kessler, before the Foreign Affairs Committee of the U.S. House of Representatives. Although much of the coverage of the hearing and the Under Secretary’s remarks has focused on the Members of Congress questioning why more rules and Entity List additions haven’t been forthcoming, Mike and Brent highlight the Under Secretary’s own emphasis on more enforcement—not more rulemaking or entity-listing—as being the key metric for U.S. national security. Mike and Brent discuss their main takeaways from the Under Secretary’s testimony (02:00); the increase in monetary penalties imposed by the Bureau of Industry & Security (“BIS”) from 2024 to 2025 and during the first half of 2026 (07:28); what BIS is requesting for FY2027 and what they will do with it, including adding 370 new Office of Export Enforcement Agents (09:43); how the Under Secretary responded to criticism, including his remark that “I do not think that more regulation equates to more national security” (12:12); why misperceived loopholes will continue to lead to liability pitfalls (13:19); the return of U.S. congressional focus on battlefield recoveries (13:56); the Under Secretary’s invitation for Congress to judge his and BIS’s success based on enforcement (16:52); how and why the “high probability” standard is an opportunity for compliance teams in these circumstances to do more with less or on tight budgets (19:40); how taking a fresh look at the meaning of “red flags,” “possibility,” and “probability” can all help take advantage of such opportunities (28:03); and the confirmed death of the AI Diffusion Rule (32:42). Mike and Brent then conclude with this episode’s “Managing Up” segment (36:24). Under Secretary Kessler’s prepared remarks, hearing video link, and other materials: https://foreignaffairs.house.gov/committee-activity/hearings/fy27-bis-budget-the-ai-arms-race-and-the-icts-office Eleanor Olcott, “Nvidia’s Banned AI Chips Double in Price on China’s Black Market,” Financial Times (Jun. 23, 2026) (subscription required): https://www.ft.com/content/57fcd3ce-464f-4dc2-8ea2-5712d4972c69?syn-25a6b1a6=1 Red Flags Rising Episode 22, “All-In on America's AI Action Plan”: https://rss.com/podcasts/red-flags-rising/2140126 Red Flags Rising Episode 39, “Pull, Push, Tap, Aim, Fire - What Recent Settlements and Indictments Teach about Clearing Compliance Jams”: https://rss.com/podcasts/red-flags-rising/2778961 UAE LinkedIn post: https://www.linkedin.com/posts/mhuneke_enhanced-uae-treatment-under-us-export-controls-activity-7481377138542006274-TOBu?utm_source=share&utm_medium=member_desktop&rcm=ACoAAAE_zFwB6ELW6Yitzba7Kt-wYyoqEFq6I6s
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#42
July 14 · 27 min
The De Minimis Rule and the Challenge of "Weathervane" Regulatory Language
Mike and Brent tackle the “de minimis” rule under U.S. Export Administration Regulations (EAR), which would except certain below-threshold value U.S. items from being subject to the EAR. Three recent enforcement actions, all in 2026 and collectively imposing just under $300 million in penalties, underscore the perils of potentially misapplying the rule. Mike and Brent introduce the concept of “weathervane” regulatory language that can sway with the geopolitical and enforcement winds (2:59); the potential relevance of companies’ approaches to transfer pricing and country-of-origin (4:40); the relevance of old-fashioned arithmetic to identifying common nominator and denominator pitfalls (9:10); the recent enforcement action that included an unusually lengthy exposition by the U.S. Bureau of Industry & Security (BIS) of its interpretation of the de minimis rule (15:38); and the parallels to BIS’s rediscovery of the “high probability” standard (18:56). Mike and Brent conclude with the latest installment of Brent Carlson’s “Managing Up” segment (24:41). BIS “Guidelines for De Minimis Rules”: https://www.ecfr.gov/current/title-15/subtitle-B/chapter-VII/subchapter-C/part-734/appendix-Supplement%20No.%202%20to%20Part%20734 Contact Brent: brent@redflagsrising.com More about Brent: www.redflagsrising.com/founder Connect with Brent on LinkedIn: https://www.linkedin.com/in/brent-carlson-41ba692/ Contact Mike: michael.huneke@morganlewis.com More about Mike: https://www.morganlewis.com/bios/michaelhuneke Connect with Mike on LinkedIn: https://www.linkedin.com/in/mhuneke/ The enforcement actions can all be found at www.bis.gov
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#41
June 29 · 28 min
AI Diffusion Confusion?
Mike and Brent re-boot a prior recording overtaken by events, specifically the Sunday, May 31, 2026, guidance issued by BIS to global data centers and the June 12, 2026, “is-informed” letter by Commerce Secretary Howard Lutnick that caused an AI model company to take down its latest models. Mike and Brent first update listeners on pending legislation in the U.S. Congress (01:37). They then revisit last year’s May 13, 2025, announced intent by BIS to rescind the Biden-era “AI Diffusion Rule” (06:44), discuss questions around whether that rescission actually happened and, in any event, what was the status of U.S. export controls as a result (10:59), and then break down the May 31, 2025, guidance from BIS (15:53) including the opportunities and limitations of what reads like a “General Prohibition 10 Savings Clause” in the penultimate paragraph (19:43). They next discuss the Friday, June 12, 2026, “is-informed” letter issued by the Secretary of Commerce and its implications for industry (23:58). Then they conclude with a “Gray Rhino” edition of Brent’s “Managing Up” segment (26:18). Contact Brent: brent@redflagsrising.com More about Brent: https://www.redflagsrising.com/founder Connect with Brent on LinkedIn: https://www.linkedin.com/in/brent-carlson-41ba692/ Contact Mike: michael.huneke@morganlewis.com More about Mike: https://www.morganlewis.com/bios/michaelhuneke Connect with Mike on LinkedIn: https://www.linkedin.com/in/mhuneke/ The BIS Guidance from Sunday, May 31, 2026: https://www.bis.gov/media/documents/bis-guidance-may-31-2026.pdf Michele Wucker, The Gray Rhino: How to Recognize and Act on the Obvious Dangers We Ignore (2016): https://www.amazon.com/Gray-Rhino-Recognize-Obvious-Dangers/dp/125005382X
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#40
May 19 · 23 min
Jeff Stitt on the Craft of Compliance
Mike and Brent welcome to the podcast Jeff Stitt, the President of Acacia Trail Consulting. Jeff walks through how he went from becoming an engineer to being an on-the-spot chief compliance offer appointee in 1992 (01:36), to doing compliance at a bank (05:51), to having the opportunity to build and run a compliance program across Sub-Saharan Africa (08:00), and then to integrating a major acquisition into his company’s compliance program (12:10). Jeff explains how compliance programs are really “underwriting” the business’s activities (14:00) and then talks about the opportunity to build-out a global compliance program at a publicly traded company (16:30). Jeff concludes with a discussion about Acacia Trail (19:28) and what he’s seeing in the trade compliance space today (21:14). Mike and Brent then conclude with another edition of Brent Carlson’s Managing-Up (22:11). Contact Jeff: jeff@acaciatrail.com More about Jeff: https://www.linkedin.com/in/jeffreylstitt/ Contact Brent: brent@redflagsrising.com More about Brent: www.redflagsrising.com Contact Mike: michael.huneke@morganlewis.com More about Mike: https://www.morganlewis.com/bios/michaelhuneke
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#39
April 29 · 29 min
Pull, Push, Tap, Aim, Fire - What Recent Settlements and Indictments Teach about Clearing Compliance Jams
Mike and Brent return to discuss lessons from Brent’s Aikido instructor and Marine Corps combat veteran Frank Doran and how those lessons can help trade compliance professional work through compliance jams. Mike and Brent discuss the enforcement wave that unfolded in March 2026 (01:28); their March 10, 2026, National Security Law & Enforcement event in New York City (01:51); how that event was designed to get to practical solutions (02:30); the need today to have a broader “compliance aperture” (03:59); the importance of effective communication up to management and boards, especially around “central compliance risks” (the standard under Delaware law) (04:37); Carole Basri’s prediction that soon many companies will have Chief National Security Officers (05:31); two significant enforcement actions from Q1 2026 (07:42); the DOJ National Security Division’s March 30, 2026, announcement regarding voluntary disclosures (11:37); two significant indictments from Q1 2026 (12:06); boards of directors’ duty of oversight when it comes to national security (13:39); the relevance of increased agitation from the U.S. Congress for more enforcement (18:39); the status of the proposed Remote Access Security Act (19:35); and what is the compliance path forward, including Brent’s Fraud Four Circle Framework (21:57). Mike and Brent then conclude with a special edition of Brent Carlson’s “Managing Up” about Frank Doran and the meaning and importance—to not only infantrymen but also compliance professionals—of “Pull, Push, Tap, Aim, Fire” (24:40). BIS enforcement actions: https://www.bis.gov/enforcement/export-violations DOJ NSD Voluntary Disclosure Policy (Mar. 30, 2026): https://www.justice.gov/opa/pr/reporting-voluntary-self-disclosures-violations-national-security-laws-under-department-wide More about Frank Doran: https://aikido-west.org/frank-doran Frank Doran, "Pull, Push, Tap, Aim, Fire" (1995): https://aikido-west.org/pull-push-tap-aim-fire Boards of Directors and the Duty of Oversight: "Boards of Directors Lovin’ It after McDonald’s? A Fresh Look at Directors’ Duty of Oversight in the New Era of Sanctions & Export Control Corporate Enforcement," NYU PCCE Blog (Jan. 12, 2024), https://wp.nyu.edu/compliance_enforcement/2024/01/12/boards-of-directors-lovin-it-after-mcdonalds-a-fresh-look-at-directors-duty-of-oversight-in-the-new-era-of-sanctions-export-control-corporate-enforcement/ Brent’s Fraud Four Circle Framework article: "A Light Shines Through the Darkness in Disputes, Investigations, and Trade Compliance: A Fresh Look at the Classic Fraud Triangle with the Fraud Four-Circle Framework℠," NYU PCCE Blog (Jan. 8, 2026), https://wp.nyu.edu/compliance_enforcement/2026/01/08/a-light-shines-through-the-darkness-in-disputes-investigations-and-trade-compliance-a-fresh-look-at-the-classic-fraud-triangle-with-the-fraud-diamond-framework-sm/
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#38
March 3 · 23 min
"Fallen Chips" - GIR's Estelle Atkinson on her Three-Part Report
Mike and Brent welcome Estelle Atkinson, a reporter with Global Investigations Review (GIR), to speak about her recent three-part series, “Fallen Chips,” published on January 26, 27, and 28, 2026 (linked in the show notes). They discuss how Estelle learned of the U.S. government investigation of Zenith Semiconductor in Chandler, Arizona (01:14); that company’s background (06:03); when employees started to realize that things were not quite right at the company and how that led to employees going to the FBI (08:19); how Estelle got to know the employees and why they were willing to help her with her story (10:30); how her experience illustrates more broadly the challenge companies have in responding to whistleblower reports or allegations (11:48); how diversion starts close to home, and is not always in some exotic “offshore” location (15:31); how U.S. administration policies to promote the export of the U.S. AI “stack” are not without controls or national security considerations (15:58); why success under America’s AI Action Plan and the American AI Export initiative will depend on effective, risk-based export controls compliance programs (16:21); the role of media in American life (19:14); why the standard PR or IR “playbook” of asserting “full compliance with the law” creates risks if companies aren’t expressly incorporating the full definition of “knowledge,” to include “an awareness of a high probability,” into export controls compliance (20:14); and what GIR readers can expect to see (or read) next from Estelle (20:49). Mike and Brent conclude with yet another installment of Brent Carlson’s “Managing Up” (22:39). GIR: https://globalinvestigationsreview.com/ Fallen Chips Part I: Inside the FBI Raid that Rocked an Arizona Chip Start-Up (Jan. 26, 2026): https://globalinvestigationsreview.com/just-sanctions/article/fallen-chips-part-i-inside-the-fbi-raid-rocked-arizona-chip-start Fallen Chips Part II: Silicon Secrets and the Risks Hiding in Plain Sight (Jan. 27, 2026): https://globalinvestigationsreview.com/just-sanctions/article/fallen-chips-part-ii-silicon-secrets-and-the-risks-hiding-in-plain-sight Fallen Chips Part III: The Fault Lines of the US-China Tech War (Jan. 28, 2026): https://globalinvestigationsreview.com/just-sanctions/article/fallen-chips-part-iii-the-fault-lines-of-the-us-china-tech-war More about Estelle: https://globalinvestigationsreview.com/authors/estelle-atkinson Contact Estelle: estelle.atkinson@globalinvestigationsreview.com Contact Brent: brent@redflagsrising.com Contact Mike: michael.huneke@morganlewis.com
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#37
February 20 · 24 min
Carole Basri on Subsidizing World Peace: the U.S. Experiment, and the Dynamic Relationship between National Security & Corporate Compliance
Back in January 2024, Mike and Brent had the good fortune to meet Carole Basri at an event at NYU Law School. On this episode of Red Flags Rising, they welcome her as a guest to talk about her specialties: national security, geopolitics, and corporate compliance. They specifically discuss Carole’s extensive professional background (00:59), a new treatise on National Security Law that Carole, Mike, and Brent are writing for the Practising Law Institute (PLI) (04:00), an upcoming event co-hosted by the New York State Bar Association’s International Section, Corporate Compliance Committee and Morgan Lewis, to which the new Assistant Secretary for Export Enforcement David Peters is an invited keynote speaker (08:18), why public enforcement officials remarks are relevant under U.S. export controls and other probability-based (i.e., “red flags”-driven) national security laws (09:26), how the U.S. Foreign Corrupt Practices Act (FCPA) was not only an example of that but also was really a child of an era where economic interdependency required a level of transparency and clean commerce to continue (12:00), and the relationship between Bretton Woods, Belt and Road, and Mike’s favorite book, Tales of an Economic Hitman, and what could be viewed with hindsight as effectively a U.S. policy decision to trade its own economic security for decades of (relative) world peace, increased global productivity, and increased living standards (16:52). Brent then closes out the discussion with the latest installment of his “Managing Up” segment (21:57), after which Mike makes some (further) book recommendations based on the discussion for those interested in further exploring some of the idea and concepts covered during the discussion: Robert Lighthizer, No Trade Is Free: Changing Course, Taking on China, and Helping America's Workers (2023), https://www.amazon.com/No-Trade-Free-Changing-Americas/dp/0063282135 John Perkins, Confessions of an Economic Hitman (1st ed. 2004, currently on the 3rd ed. 2023), https://a.co/d/0fdEyBAg W. Timothy Galloway, The Inner Game of Tennis (first published in 1972) (now a 50th anniversary edition is available), https://a.co/d/0hxybPKN Daniel Kahneman, Thinking Fast and Slow (2011), https://a.co/d/03Q0vF0M Michael Lewis, The Undoing Project (2016), https://a.co/d/09lcTL1M More about Carole: https://www.linkedin.com/in/carole-basri-038998/ Contact Brent: brent@redflagsrising.com Contact Mike: michael.huneke@morganlewis.com Interested in learning more about the March 10, 2026 event? Contact Mike & Brent at the email addresses above.
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#36
January 28 · 23 min
How to Prepare for 2026 - The Fraud Diamond Framework (SM) Applied
Mike and Brent return for the new year with a refresher on The Fraud Diamond Framework(SM) introduced in Episode 34 and an explanation of how it would apply in practice as trade compliance professionals try to expect the unexpected in 2026. They discuss the importance of designing and implementing “compliance backstops” as geopolitical guardrails (01:47), how Stoic philosophy and the good work of Mo Bunnell (CEO and Founder of Bunnell Idea Group, author of Give to Grow) help build resiliency (03:40), review The Fraud Diamond Framework(SM) (05:57), describe how the framework can help trade compliance personnel to make and defend triage decisions (10:59), the implications of many trade compliance programs reaching a point in their evolution where they need to be able to demonstrate true integrity and effectiveness (13:45), the new 25% tariffs on certain semiconductors (14:38), and notable economic sanctions enforcement decisions related to lawyers’ advice or lawyers themselves (15:56). They conclude with Brent’s first Managing Up of 2026 (21:04).
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#35
Dec 29, 2025 · 40 min
Origins & Parallels - The FCPA and U.S. Export Controls, Yesterday and Today, with Severin Wirz
Mike and Brent welcome author and compliance professional Severin Wirz to the pod to discuss his first book, Bribery Beyond Borders: The Story of the Foreign Corrupt Practices Act. They discuss with Severin his inspiration for writing the book (02:44), the book’s focus on the people and personalities involved in the events between 1975 and the 1977 passage of the FCPA (05:50), the political and geopolitical scandals that kept up the momentum for a law banning overseas bribery (06:59), what his research uncovered beyond the traditional FCPA origin story (10:49), the relevance of the Cold War to the FCPA’s passage—specifically how corruption by capitalists fed into Communist propaganda (12:39), how the political “sausage” was made (16:33), stories of personal courage and risk-taking that made the FCPA possible (18:27), the use of the phrase “post-Watergate morality” as a critique of the FCPA and other reform efforts (21:48), how anti-corruption laws actually help American companies competing for business overseas (29:21), where the FCPA stands today (31:17), and how corruption is a social construct that, to paraphrase former federal appellate judge and author himself John Noonan, to exist as a legal concept must first exist in the minds of everyday people (35:40). Mike and Brent then conclude with another installment of Brent Carlson’s “Managing Up” (38:14). Bribery Beyond Borders: The Story of the Foreign Corrupt Practices Act— Learn more at Corporate Compliance Insights here: https://www.corporatecomplianceinsights.com/bribery-beyond-borders-fcpa-severin-wirz/ Available at Amazon here: https://www.amazon.com/Bribery-Beyond-Borders-Foreign-Practices/dp/1735028592 More about Severin here: https://www.linkedin.com/in/severin-wirz-3574b574/ Contact Brent: brent@redflagsrising.com Contact Mike: michael.huneke@morganlewis.com
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#34
Dec 18, 2025 · 26 min
Introducing Brent Carlson's Fraud Diamond Framework (SM)
Mike & Brent explore the classic “Fraud Triangle” of pressure, opportunity, and rationalization and discuss Brent’s creation of a new “Fraud Diamond Framework” (SM) to help trade compliance (and other) professionals who are looking not to explain past misconduct but instead to prevent future misconduct. They discuss recent news and developments in the export controls world (00:55), how seemingly inconsistent headlines are actually consistent with each other (04:05), and how Edward Fishman’s “impossible triad” concept continues to be a useful tool for understanding what’s happening in geopolitics and trade competition (06:22), and then they launch into their discussion of Brent’s Fraud Diamond Framework (SM) (08:05). Regarding the Fraud Diamond Framework (SM), they discuss the classic fraud triangle and the backward-looking perspective from which it was derived (09:18), and then explain the Fraud Diamond Framwork’s four elements of pressure (12:08), opportunity (13:06), something that’s too good to be true that comes at a critical time for the business (14:06), and signs of concealment (15:48). Brent next explains the Fraud Diamond Framework (SM) through a historical case study pulled from his own prior experience helping a client with a compliance commercial fraud dispute involving the acquisition of a business in China (17:35), after which they explain how the Fraud Diamond Framework (SM) can help trade compliance teams today (23:02). They conclude with another installment of Brent’s always popular “Managing Up” segment (24:43). Contact Brent: brent@redflagsrising.com Contact Mike: michael.huneke@morganlewis.com “Chokepoints: American Power in the Age of Economic Warfare” by Edward Fishman: https://a.co/d/3Phvprs Brent’s original NYU PCCE post, “When Loopholes Create Liability Pitfalls: A Fresh Look at Export Controls” (Aug. 25, 2023): https://wp.nyu.edu/compliance_enforcement/2023/08/25/29814/
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#33
Dec 2, 2025 · 28 min
Back to Basics
As the geopolitical and national political winds continue to swirl, Mike & Brent go back to basics to level-set and provide some foundational first principles of export controls compliance. They discuss the roller-coaster of the Affiliates Rule suspension (01:44); why the real risks from a compliance and enforcement perspective lay just outside of the Rule (02:37); how General Prohibition 10, the full definition of “knowledge” to include “an awareness of a high probability,” and the various inchoate provisions (i.e., causing, aiding and abetting, solicitation and attempt, conspiracy, acting with knowledge, misrepresentation and concealment, intent to evade, and failure to comply with recordkeeping requirements) are the foundational anti-diversion provisions under the U.S. Export Administration Regulations (EAR) (03:02); great listener feedback about how the Affiliates Rule shaped the in-house discussion of diversion risk (05:23); developing and implementing a high probability protocol as the only way to stay grounded in dynamic and challenging times (08:33); recent legislative proposals and hearings, including a recent hearing by a subcommittee of the House Foreign Affairs Committee focused on export controls loopholes, and the dangers of a dissatisfied U.S. Congress (09:42); why the definition of “knowledge” under the EAR is not mere legalese to be lost in the 1,467 pages (as of January 1, 2025) of the EAR but is instead the path forward for both government and industry (14:18); the details and implications of General Prohibition 10 (17:11); the details of the full definition of “knowledge,” including what we can learn from its history in the U.S. Foreign Corrupt Practices Act and, before then, the Model Penal Code (18:48); and recent enforcement activity by DOJ and BIS, and what the activity signals about the government’s next enforcement moves (22:30). They then conclude with the latest installment of Brent’s increasingly popular “Managing Up” segment (27:14). Contact Brent: brent@redflagsrising.com Contact Mike: michael.huneke@morganlewis.com 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/
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#32
Nov 11, 2025 · 22 min
Don’t Wait for Godot - Seize Control with Your Own Compliance Clarity
Mike & Brent draw inspiration from the current Broadway run of Waiting for Godot starring Keanu Reeves and Alex Winter to suggest some first principals of risk-based export controls compliance to trade compliance teams. They discuss the futility of the oft-reported sentiment in the trade compliance press of wanting more or clearer guidance from the U.S. government about export controls risk management is not necessary, because the guidance is already here and the “high probability” standard offers a path forward (01:03); how the “high probability” standard and a return to anti-diversion first principles is a way to avoid a repeat of the compliance whipsaw effect occasioned by the announcement, then suspension, of the Affiliates Rule (a/k/a the 50% Rule) (03:47); how an example of this is focusing on your compliance and enforcement risks under General Prohibition 10 and the inchoate provisions of U.S. export controls (07:10); how neither the Affiliates Rule’s adoption nor its suspension changed GP10 or the other anti-diversion regulations under U.S. export controls (12:03); why efforts to comply with the Affiliates Rule were not wasted (14:23); how to deal with and overcome “compliance fatigue” in organizations (16:04); Brent’s latest NYU PCCE post (17:59); and why there was an over-focus on item-based classifications relative to knowledge-based end-use and end-user catch-all provisions and GP10 (19:17). They then conclude with a righteous installment of Brent Carlson’s “Managing Up” (21:36). “Waiting for Godot” starring Keanu Reeves and Alex Winter is currently playing at the Hudson Theater in New York City until January 4, 2026. For tickets: https://boxoffice.nyc.com/waiting-for-godot/13147/calendar/ Brent’s latest NYU Law School Program on Corporate Compliance & Enforcement post, from October 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/ Brent’s email: brent@redflagsrising.com Mike’s email: michael.huneke@morganlewis.com
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#31
Nov 3, 2025 · 25 min
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: brent@redflagsrising.com Contact Mike: michael.huneke@morganlewis.com
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#30
Oct 20, 2025 · 24 min
Look Before You Leap, Think Before You Speak
Fresh off the October 15, 2025, WIT-NC/PAEI/TTRA “Global Trade Compliance Best Practices Conference” in Santa Clara, California, Mike and Brent discuss the practical takeaways of several recent media reports and statements from the U.S. Congress, including how compliance programs that incorporate the high-probability standard give executives and spokespersons the most options. Specifically, they discuss the conference (00:49); the recent Affiliates Rule (01:27); why straightforward statements that a company “complies with the law” might generate cynicism from the public and inquiries as to how from the government (02:59); why it’s important for companies to consider the context in which their public statements will appear, even where they might not agree with the facts asserted in that context (04:06); how delegitimizing the laws in the eyes of the public might be one of the smugglers’ objectives (05:47); how thinking about compliance as never being a one-and-done solution can help avoid pitfalls in public statements (06:54); why it’s dangerous to rely upon assertions by anonymous “legal experts” reported in articles about the existence of loopholes, including because those loopholes do not actually exist (08:49); the importance of keeping in mind, in the context of the Entity List and the Affiliates Rule, that the List is but one part of U.S. export controls and statements that fixate on the Entity List’s applicability expose corporations to questions about their compliance with other catch-all provisions, with General Prohibition 10, and with the various inchoate provisions (10:27); the importance of appreciating that U.S. regulators read the news too (11:40); how the “high probability” standard can help companies in making enhancements to their compliance programs to better support broader public statements as to their compliance with the law (14:41); recent reports about U.S. items being sold for crime control purposes and attention from the U.S. Congress on those reports (15:03); similar risks related to the recent report by the U.S. House of Representatives’ Select Committee on the Chinese Communist Party (17:23); keeping in mind that your own disagreement with U.S. national security policy is not a defense to export controls promulgated in support of that policy (19:02); and the importance of having advisors who are viewed by the government as honest brokers that are not clinging to legacy views about the government’s intentions or authorities (21:07). Mike and Brent then conclude with another installment of Brent Carlson’s “Managing Up” (23:29). Contact Brent: brent@redflagsrising.com Contact Mike: michael.huneke@morganlewis.com Learn more about the conference’s organizing associations: Women in International Trade – Northern California (WIT-NC): https://wit-nc.com/ Professional Association of Exporters & Importers (PAEI): https://www.paei.org/ Technology Trade Regulation Alliance (TTRA): https://ttralliance.org/
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#29
Oct 7, 2025 · 37 min
Affiliates Rule Aftermath – Finding the Right Path Forward
Mike and Brent take an even deeper dive into the “Affiliates” or “50%” Rule announced by the Bureau of Industry & Security (BIS) on September 29, 2025. They identify several misperceptions in the public discussion, explain why they are misperceptions, and identify the pitfalls of operating under those misperceptions—especially in response to inquiries by BIS about pre-rule due diligence on affiliates of entities on the entity list. Specifically, they discuss why the Affiliates Rule is a close cousin to the Office of Foreign Assets Control’s own 50% rule, but why and how BIS’s Affiliates Rule serves different national security objectives and operates a bit differently (02:42); whether the Affiliates Rule brings new compliance burdens and, if so, risk-based due diligence strategies and likely questions from BIS regarding why (10:26); why in the current geopolitical context the benefit of local, boots-on-the-ground compliance might be overstated—or significantly discounted by the U.S. government—and what to do about it (16:18); why it would be a mistake to think that BIS is not today able to bring enforcement actions based on the Affiliate Rule, especially given their ability to bring enforcement actions on the “full” definition of knowledge to include “an awareness of a high probability” (19:26); and why it is dangerous to think of “knowledge” as only “actual knowledge,” and thereby misperceiving that the new Affiliates Rule—by reminding everyone that the catch-all provision under which the Entity List is promulgated is a strict-liability regulation, even as to awareness—has someone taken away a previously available “absence of actual knowledge” defense (23:00). Mike and Brent then offer practical tips for applying for the license available under the Affiliates Rule for situations where the exporter, reexporter, or transferor is aware of “red flags” as to ownership that it cannot resolve through risk-based due diligence (28:20). Mike and Brent then conclude with a special edition of Brent Carlson’s “Managing Up,” in which Brent offers some valuable self-reflection (34:58). More about Brent: www.redflagsrising.com Contact Brent: brent@redflagsrising.com More about Mike: https://www.linkedin.com/in/mhuneke/, https://www.morganlewis.com/bios/michaelhuneke Contact Mike: michael.huneke@morganlewis.com BIS’s “Export Control Decision Tree”: https://www.ecfr.gov/current/title-15/subtitle-B/chapter-VII/subchapter-C/part-732/appendix-Supplement%20No.%201%20to%20Part%20732
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#28
Sep 30, 2025 · 26 min
The Long-Awaited "50% Rule" - Key Takeaways and Liability Pitfalls to Avoid
Mike and Brent return with their take on a hotter-than-hot topic, the Bureau of Industry & Security’s new “50% Rule,” effective yesterday, September 29, 2025. Mike and Brent discuss the news of the rule’s announcement and the basics of what it does (00:46); the fact that the rule was effective immediately upon filing for public review, i.e., on September 29, 2025 (02:24); the fact that 50% is not some threshold under which risk goes away (06:19); how commentary suggesting that a “loophole” has been closed is not entirely accurate because such a loophole never existed in the first place (08:12); the requirements (including a description of due diligence performed) under a new, unique license application process (09:45); what enforcement risks are likely to arise in the government’s implementation of the new rule, especially if the government compares pre-rule trade flows to post-rule trade flows (10:43); the importance of not making a quick decision in how to respond to the new rule that you might later regret (12:23); the dangers of misreading the new rule to permit entity-shifting as an appropriate response (15:53); BIS’s caution that the rest of the U.S. Export Administration Regulations (EAR) still apply, separately from the Entity List (18:43); the admonition by BIS that “exporters, reexporters, and transferors have an affirmative responsibility to know the ownership of the foreign companies that are parties to a transaction” (19:45); the statement in the rule that those same actors “must adopt a risk-based compliance program to assist them in complying with these requirements” (20:14); the new “Red Flag 29” added to the BIS Know-Your-Customer (KYC) Guidance (21:05); and the importance of the explanatory text’s reference to “control” (irrespective of ownership) by a listed entity as a “red flag” requiring further due diligence (21:59). Mike and Brent conclude with another installment, back by popular demand, of Brent Carlson’s “Managing Up” segment (24:57). Brent’s new contact information: brent@redflagsrising.com Brent's original NYU PCCE blog post, "When Loopholes Create Liability Pitfalls: A Fresh Look at Export Controls" (Aug. 25, 2023): https://wp.nyu.edu/compliance_enforcement/2023/08/25/29814/ Mike’s new contact information: michael.huneke@morganlewis.com More about Brent: https://www.linkedin.com/in/brent-carlson-41ba692/ More about Mike: https://www.linkedin.com/in/mhuneke/ The U.S. export controls “Country List” (Supplement No. 1 to Part 740): https://www.ecfr.gov/current/title-15/subtitle-B/chapter-VII/subchapter-C/part-740/appendix-Supplement%20No.%201%20to%20Part%20740 The BIS Press Release (with a link to the new rule): https://www.bis.gov/press-release/department-commerce-expands-entity-list-cover-affiliates-listed-entities
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#27
Aug 25, 2025 · 17 min
Open One Eye, Close One Eye
Mike & Brent break down the investigative report by the Editor-in-Chief of Gamers Nexus, Steve Burke, and his colleagues into GPU smuggling into China, which was recently featured on the ChinaTalk podcast with Jordan Schneider. Mike & Brent discuss the context for the report (00:51), its key takeaways (03:14), what it means and what it doesn’t mean for U.S. design companies and anyone subject to U.S. export laws (05:47), and why the “high probability” standard provides a path forward for companies facing reports such as this (12:30). They conclude with another installment of Brent Carlson’s ever-popular “Managing Up” (16:03). Steve Burke & Gamers Nexus’ report can currently be found here: https://rumble.com/v6xro9o--the-nvidia-ai-gpu-black-market-smuggling-corruption-and-global-scandal-.html?utm_source=substack&utm_medium=email More about Gamers Nexus: https://gamersnexus.net/ Check out Jordan Schneider’s ChinaTalk episode on the report here: https://podcasts.apple.com/us/podcast/nvidia-gpu-black-market-smuggling/id1289062927?i=1000723081399 More about Brent: https://www.linkedin.com/in/brent-carlson-41ba692/ More about Mike: https://www.linkedin.com/in/mhuneke/ Everything you ever wanted to know about the “high probability” standard: https://www.hugheshubbard.com/fresh-looks
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#26
Aug 25, 2025 · 28 min
Grab the Carrots, Avoid the Sticks, and Get Ready for More Transparency
Mike and Brent pick up the discussion from Episode 25 with some further thoughts on the proposed revenue-sharing arrangement between the U.S. government and certain exporters, including what should be anticipated from the U.S. government in terms of increased transparency (01:36), give their take on the Maintaining American Superiority by Improving Export Controls Transparency Act signed into law by the President, including both what it does do and what it doesn’t do (10:27), and provide their takes on the long-running media speculation about a so-called “50% rule” that would extend the Entity List maintained by the U.S. Bureau of Industry & Security (BIS) automatically to subsidiaries or affiliates owned 50% or more by a listed entity (18:53), including questions that the debate raises about what due diligence is being done now on subsidiaries and affiliates of listed entities, and important distinctions between U.S. economic sanctions—from where the 50% rule concept is being borrowed—and U.S. export controls that suggest the rule is better suited for the former than the latter. They conclude with another installment of Brent Carlson’s “Managing Up” (26:25). More about Brent: https://www.linkedin.com/in/brent-carlson-41ba692/ More about Mike: https://www.linkedin.com/in/mhuneke/ Everything you ever wanted to know about the “high probability” standard: https://www.hugheshubbard.com/fresh-looks
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