Foreign Investment in the US (CFIUS) REGULATORY AND GOVERNMENT AFFAIRS

WilmerHale has extensive experience advising clients on US foreign ownership restrictions and, in particular, providing representation in the clearance of proposed business combinations potentially affecting national security—the review process conducted by the interagency Committee on Foreign Investment in the United States, or CFIUS, under the Exon-Florio provisions of the Defense Production Act of 1950, as amended by the Foreign Investment and National Security Act of 2007. As reported in the trade press, WilmerHale is one of a "small number of firms … regarded as having top-tier CFIUS capabilities.” (The Lawyer (London), 26 May 2008.)

We have handled some of the most complex and sensitive matters in this area. Our clients in these matters have included merger partners, foreign purchasers, sellers/entities acquired and interested third parties. The businesses involved have included defense and intelligence agency contractors, developers/providers of classified and export-controlled technologies, owners/operators of US critical infrastructure and key suppliers, and companies with substantial holdings of strategic resources. We have handled the full range of matters from strategic acquisitions in the defense-aerospace and communications industries to financial investments by foreign sovereign wealth funds in US financial institutions.

Our work has entailed not only interface with the CFIUS staff and participation in the formal review process, but also guidance on structuring transactions so as to avoid foreign control for CFIUS jurisdictional purposes, assessment of national security implications and advice in determining whether to file with CFIUS, formulation of regulatory and political strategies, direct engagement with the stakeholder agencies before and after filing, and the negotiation of Special Security Agreements and National Security Agreements in obtaining clearance from the Defense Security Service (DSS).

WilmerHale attorneys have deep experience in this area operating at the highest levels of business and the government. This practice area team includes attorneys who served as the Deputy Secretary of the Treasury and oversaw recent reforms of the CFIUS process in addition to leading CFIUS reviews of sensitive matters; the Deputy Attorney General of the United States and General Counsel of the Department of Defense; the General Counsel to the first three Directors of National Intelligence; the General Counsel of the Central Intelligence Agency; the General Counsel of the Federal Bureau of Investigation; and the Principal Deputy Staff Judge Advocate at Air Force Materiel Command.

In addition to representation before CFIUS, our work has included Federal Reserve Board approval in matters involving the establishment of US branches by foreign banks, Federal Communications Commission license transfer proceedings in matters involving foreign investment in US telecom carriers, Department of Transportation fitness (US citizenship) reviews in matters involving foreign investment in US air carriers, due diligence with respect to government contracts in connection with mergers and acquisitions, and general compliance with national industrial security requirements (NISPOM), including matters involving personnel and facility security clearances.

We have successfully handled a number of the most challenging CFIUS cases on record. Representative matters in which the firm played a leading role are listed below.*

  • Advised two major US financial services firms in connection with substantial investments by Chinese and Middle Eastern sovereign wealth funds (completed without CFIUS review).
  • Represented leading US supplier of communications equipment, software and services in merger with European counterpart, including renowned research and development organization.
  • Represented large European financial institution in connection with acquisition of US transportation infrastructure and assignment to managed asset investment vehicles.
  • Represented major US provider of information services in connection with acquisition by European publishing conglomerate, including large databases used for background screening.
  • Represented leading Chinese financial institution in obtaining US bank regulatory authority approval to open branch office in New York (not subject to CFIUS).
  • Advised private equity sponsors in acquisition of significant US defense contractor by limited partnership with multiple foreign investors (completed without CFIUS review).
  • Represented major US defense contractor in connection with sale of satellite unit to multinational satellite concern.
  • Represented large European telecommunications company in connection with acquisitions of two US wireless companies.
  • Advised large European defense concern in connection with acquisition of electronics unit from major US defense contractor.
  • Represented multinational wireless company in connection with acquisition of large US wireless company.
  • Advised foreign party in connection with proposed merger in energy sector.
  • Represented German company in connection with acquisition of Canadian shipping business that participates in US Navy program.
  • Represented large Asian technology company in connection with acquisition of US shipbuilder supplying US Navy and acquisition of a US aerospace company.
  • Represented US defense subcontractor when acquired by multinational German corporation.
  • Represented US defense subcontractor when acquired by US subsidiary of Japanese corporation.
  • Represented British company in connection with acquisition of US developer and manufacturer of photonics and microwave products.
  • Represented US maker of digital video surveillance and intrusion detection equipment and software when acquired by large European defense concern.
  • Represented US information technology company when entity controlled by French Government bought a stake in company and again when company was sold to Dutch entity.
  • Represented British company in connection with acquisitions of three US companies supplying aircraft industry.

*As CFIUS proceedings are confidential, in most instances, we are constrained from specifically identifying transactions and the parties we represented.

WilmerHale has extensive experience advising clients on US foreign ownership restrictions and, in particular, providing representation in the clearance of proposed business combinations potentially affecting national security—the review process conducted by the interagency Committee on Foreign Investment in the United States, or CFIUS, under the Exon-Florio provisions of the Defense Production Act of 1950, as amended by the Foreign Investment and National Security Act of 2007. As reported in the trade press, WilmerHale is one of a "small number of firms … regarded as having top-tier CFIUS capabilities.” (The Lawyer (London), 26 May 2008.)

We have handled some of the most complex and sensitive matters in this area. Our clients in these matters have included merger partners, foreign purchasers, sellers/entities acquired and interested third parties. The businesses involved have included defense and intelligence agency contractors, developers/providers of classified and export-controlled technologies, owners/operators of US critical infrastructure and key suppliers, and companies with substantial holdings of strategic resources. We have handled the full range of matters from strategic acquisitions in the defense-aerospace and communications industries to financial investments by foreign sovereign wealth funds in US financial institutions.

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Contacts

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Barshefsky, Charlene

Ambassador Charlene Barshefsky

Chair, International Trade, Investment and Market Access Practice Group

+1 202 663 6130 (t)

charlene.barshefsky@wilmerhale.com

Gorelick, Jamie

Jamie Gorelick

Chair, Defense, National Security and Government Contracts Practice Group

Co-Chair, Strategic Response Group

+1 202 663 6500 (t)

jamie.gorelick@wilmerhale.com

Brown, Reginald J.

Reginald J. Brown

Partner

+1 202 663 6430 (t)

reginald.brown@wilmerhale.com

Gorelick, Jamie

Jamie Gorelick

Partner

+1 202 663 6500 (t)

jamie.gorelick@wilmerhale.com

Hurewitz, Barry J.

Barry J. Hurewitz

Partner

+1 202 663 6089 (t)

barry.hurewitz@wilmerhale.com

Shapiro, Howard

Howard M. Shapiro

Partner

+1 202 663 6606 (t)

howard.shapiro@wilmerhale.com

Urwitz, Jay P.

Jay P. Urwitz

Partner

+1 202 663 6880 (t)

jay.urwitz@wilmerhale.com

Kimmitt, Robert M.

Ambassador Robert M. Kimmitt

Senior International Counsel

+1 202 663 6250 (t)

robert.kimmitt@wilmerhale.com

Petkoff, Gregory H.

Gregory H. Petkoff

Special Counsel

+1 202 663 6113 (t)

gregory.petkoff@wilmerhale.com

Publications & News

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March 14, 2014

Chambers & Partners Recognizes WilmerHale in its 2014 Global Edition

Thirty-one WilmerHale lawyers have been named among the “World’s Leading Lawyers for Business” in the 2014 edition of Chambers Global. In addition to these individual accolades, 13 of the firm’s practice areas were also recognized.

October 16, 2012

Implementation of US Sanctions Against Iran Marks Significant Extraterritorial Expansion

In our August 13, 2012 alert, “Iran Threat Reduction and Syria Human Rights Act of 2012,” we highlighted a crucial provision of the latest Iran sanctions: Previously US firms were not liable with respect to Iran-related transactions of their foreign subsidiaries if no US person was involved in the transaction. But Section 218 of the new law provides that US persons (including US firms) will face penalties if foreign entities that they own or control knowingly engage in any transaction with the Government of Iran, or persons subject to its jurisdiction, that would be prohibited if engaged in by a US person or in the United States.

December 12, 2011

CFIUS Annual Report Shows Increased Transactions, Increased Resort to Mitigation Measures

The Committee on Foreign Investment in the United States (CFIUS) issued its Annual Report to Congress last week, covering calendar year 2010. The report showed a rise in the number of transactions submitted for review, a rise in the number of transactions approved with conditions designed to mitigate possible national security concerns, and no transactions blocked by the President. WilmerHale represents sellers and buyers at every stage of the CFIUS process and in every industry sector.

December 7, 2011

Top DOJ National Security Lawyer Joins WilmerHale

January 12, 2011

Former Senior Air Force Acquisition Attorney Joins WilmerHale

September 15, 2010

U.S. News Media Group and Best Lawyers Release Inaugural Best Law Firms Rankings

WilmerHale earns first-tier rankings for a dozen national practices.

August 12, 2010

90 WilmerHale Lawyers Named to The Best Lawyers in America® 2011

July 7, 2010

Committee on Foreign Investment in the United States (CFIUS) Concerns Cause Parties to Abandon Transaction

June 11, 2010

Chambers USA 2010 Reveals Final Results Ranking 101 WilmerHale Lawyers and Dozens of Practices

April 16, 2010

Four WilmerHale Lawyers Named Rising Legal Stars by Law360