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. Chambers USA: America’s Leading Lawyers for Business recognized the firm’s CFIUS practice in its 2015 and 2016 editions, noting it’s adept representation in relation to the CFIUS review process. 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; and the General Counsel of the Federal Bureau of Investigation.
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.
Representative matters in which the firm played a leading role are listed below. As CFIUS proceedings are confidential, in most instances, we are constrained from specifically identifying transactions and the parties we represented.