• James Berger

SAYING GOODBYE TO A YEAR LIKE NO OTHER

My first visit to JLG’s recently completed new Wall Street Headquarters Office perfectly captured 2020’s surreal duality.


Upon arrival, I eagerly began to explore – traversing corridors of polished glass, steel, and wood – marveling at state-of-the-art conference rooms and a floor-to-ceiling wine refrigerator which I most certainly intend to help stock during the year to come. It all felt right – Harmonious, even. If you have not yet had the chance to visit in person, please take a moment to check out this short press release (pictures and all). After a year spent mostly working from the confines of my apartment, suddenly transitioning to panoramic views of the financial district’s soaring architecture set off against soft interior lighting brought back that once familiar thrill of New York City itself. Our firm was on the move – and FAST. Behind my mask, I may even have smiled.


Yet, right then, something else hit me with equal force: It was a weekday – mid-afternoon – and I remained completely alone. No magic had occurred. Same year – same problems… Pausing to reflect, I reclined on the leather sofa you can see in the press release photo. I pondered how far we had all traveled – separately and together – weathering the “perfect storm” that was 2020. I silently questioned how long it would be until silence and solitude would again be replaced by the hum of life and the camaraderie of shared experience. Can a journey and destination be one in the same? How would we know?


Saying goodbye to 2020 will require something more than that fleeting serenity I discovered within our new offices: A gaze back with sadness and appreciation – A determined look forward with excitement and humility. Let us begin…


JLG Global Enforcement: I am proud to note that 2020 marked the first full year of the practice group I oversee, Global Enforcement, and its focus on trans-national business, cross-cultural communication, and helping clients unravel the world’s tangled web of intersecting regulations. Accomplishments included: creating proactive solutions for a major Chinese pharmaceutical company regarding privacy laws in the US and EU; assisting businesses ranging from start-ups to established companies find shelter from the economic storm that followed quickly in COVID’s wake; winning tough fights against the FDA and FTC, as well as producing successful results for clients facing actual and potential international litigation.


It was also an honor to be interviewed by global news outlets and to address diverse groups including the American Bar Association, leading Chinese law firms and legal organizations, one of China’s largest investment firms, as well as civil rights advocates demanding social and political change. Just ten days ago, I was fortunate to moderate “JLG’s First Fireside Chat for a New Era: Global and Domestic Perspectives on the 2020 Election” – a panel discussion with four extraordinary speakers from the worlds of politics, global business and journalism. With each of these experiences, I noticed that same strange dichotomy I mentioned earlier: 2020’s inescapable isolation nonetheless tempered by the resiliency of colleagues, clients, and friends, more dedicated than ever to connecting across every imaginable type of border.


Enough nostalgia. In summarized form, here are the key issues and trends Global Enforcement most looks forward to helping clients navigate in 2021.


Cross-Border Transactions: As vaccination gradually becomes more prevalent during Q1 and Q2 and election trauma gives way to what I predict will be the relative placidity of the Biden/Harris Presidency, now is the ideal time to be preparing and planning. Key recommendations:

Political Risk Management: Based on what we know about President Biden’s cabinet picks, his longstanding commitment to collective action, desire to rebuild traditional US alliances, and disdain for “America First” isolationism, the odds would seem to favor those betting on a more globalist future. Nevertheless, no single president – nor any one nation – constitutes a reliable measuring stick for political risk.

  • As a starting point, the Carnegie Endowment for International Peace assembled this great primer, albeit with bit more of a pessimistic slant than Brookings: “US-China Relations Under Biden: A Look Ahead.”

  • Right now, US Anti-China sentiment is at an all-time peak. Whether this will dissipate depends as much on Beijing as Washington. Think: Hong Kong, Taiwan, Xinjiang, and the South China Sea. While our two nations must do everything imaginable to avoid military conflict, it would be disingenuous to suggest longstanding differences (often born from distinct cultural and historical circumstances) are likely to see short-term mutually acceptable solutions – with the same being true for Beijing’s criticisms of the West, obviously. During any period of significant global instability, preexisting tensions are more naturally exacerbated. That should not dissuade commerce but ought to be taken under consideration when evaluating transaction costs.

  • Most new American Presidents immediately overturn their predecessor’s executive orders. That is likely to happen this January 20 as well. The major unknown is what might not get reversed or is temporarily sidelined. Depending on your area of business, you’ll want to watch closely as there are literally so many Trump executive orders (including some that are little-known but have far-reaching consequences – e.g., Executive Order 13959 addressing the “Threat from Securities Investments that Finance Communist Chinese Military Companies” (Try guessing how stunningly broad that one is and you will quickly appreciate the importance of detail) So yes - There will be real transformation but paying serious attention to nuance remains mission-critical).

Regulatory Investigations and Enforcement

While it is true we are likely to see a return to US regulators behaving more as they did during previous administrations, there remain several areas warranting extra prudence – especially if the Senate remains under Republican control:

For three reasons, this year’s enforcement numbers related to China can be misleading and are worth understanding: (1) Although only one FCPA action was brought against a Chinese parent corporation in 2020, there were sixty-four others “connected with illegal behavior in China;” (2) The Holding Foreign Companies Accountable Act, passed by Congress just last month, is specifically designed to make extraterritorial enforcement easier; and (3) FCPA exacts its largest price in the investigatory process – numbers that are normally not made public but most certainly are felt by those under the klieg lights. Yes – there is good reason to think the Trump DOJ’s China Initiative will no longer weaponize US regulatory policy. But this is certainly not a smart moment to become lax about compliance.

Maybe it Wasn’t All Terrible, But Good Riddance to 2020, Right?

Not so fast. The zig-zag progression of history has little interest in calendars. January 1 is just another day.


One of the wisest books I encountered during 2020 is, “AI Superpowers: China, Silicon Valley and the New World Oder.” The author, Dr. Kai Fu Lee, observes: “Birthplace and heritage are not the sole determinants of behavior.” Similarly, by recollecting how ignorant we were about our near-future just 365 days ago, one quickly intuits that no past year or era are the sole determinants of what comes next.


If we actively recollect how we learned to socially distance without losing each other; can recall how many dark days were brightened by even the smallest gesture from a friend, a co-worker, or a loved-one; and manage to comprehend the awesome power wrought by the largest number of people in American history choosing peacefully and responsibly to vote, then there is every reason to believe one game-changing “determinant” (if not the “sole determinant”) of a better 2021 can be us.


Meanwhile, why rush the inevitable? Take this week slowly. Spend time remembering where you are and how far you have come. Surely, there will still be plenty of time to say goodbye to 2020 – next year.


Wishing everyone health, peace, and happiness.


James Berger

Global Enforcement Partner

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