Wiley Rein has an unparalleled ability to assist clients on a broad range of national security issues. We counsel U.S. and foreign companies in matters before the Committee on Foreign Investment in the United States (CFIUS) and the Defense Security Service (DSS), and provide assistance with network security agreements (NSA). Wiley Rein’s CFIUS and National Security Practice also has more than two decades of experience handling matters related to export controls, including the International Traffic in Arms Regulations (ITAR), economic sanctions, and the Foreign Agent Registration Act (FARA). Our Team of legal and policy experts, including former U.S. government officials responsible for the drafting and implementation of CFIUS regulations and reviews, have managed numerous complex national security cases with successful outcomes for our clients.
Wiley Rein has significant experience assisting parties to acquisitions or transactions that require the approval of DSS, an agency within the U.S. Department of Defense (DOD). For example, any sale or substantial divestiture of a company holding a facility security clearance (FCL) involves DSS, and acquisitions by non-U.S. buyers are subject to additional scrutiny and stricter compliance requirements. Companies subject to Foreign Ownership, Control or Influence (FOCI) cannot receive or retain an FCL unless FOCI has been effectively mitigated through an agreement or other mechanism approved by DSS. We have represented a wide range of companies with transactions subject to DSS jurisdiction, from the due diligence phase to negotiations as to FOCI mitigation measures, as well as the implementation of those measures, which protect U.S. national security and permit the newly foreign-owned or -controlled business to remain competitive in the United States. Members of Wiley Rein’s CFIUS and National Security Practice consistently work with key U.S. government decision-makers to help craft successful FOCI mitigation instruments, which may include board resolutions, security control agreements, special security agreements, or more complex proxy agreements or voting trusts, as well as the secondary administrative and related agreements necessary for the successful implementation of a technology control plan. We work to ensure efficient coordination between the review process at DSS and the often parallel, but independent, review by CFIUS, so that neither process impedes the other.
Our preeminent Practice assists parties to foreign acquisitions of communications facilities subject to Federal Communications Commission (FCC) approval, which often require NSAs. As members of Team Telecom, the Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), and the Department of Homeland Security (DHS) participate in the FCC licensing process to ensure that foreign investments do not impair U.S. law enforcement, national security, or infrastructure protection priorities. DHS focus on infrastructure protection has increased the scope of NSAs and Team Telecom involvement. Our National Security attorneys often pair with our renowned Communications Practice to provide comprehensive counsel and guidance in this area.
Our National Security professionals also partner with the firm’s Election Law Group to provide full-service representation in FARA matters. FARA requires persons acting as agents of foreign principals in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts, and disbursements in support of those activities. The FARA Registration Unit of the Counterespionage Section (CES) in the National Security Division (NSD) of DOJ is responsible for the administration and enforcement of the Act.
Wiley Rein’s CFIUS and National Security Practice includes a notable and expanding presence before CFIUS. We have extensive experience counseling clients in transactions that involve nearly every industry sector subject to CFIUS review, including energy, transportation infrastructure, telecommunications, defense, software, advanced technologies, finance, chemicals, and pharmaceuticals, among others. As a result, we have substantial expertise assisting parties with transactions that involve sophisticated technology and classified information. The Practice’s work includes the negotiation of national security, proxy, and special security agreements. We advise clients on strategies to mitigate national security risks and to address political and public relations issues on the national and local level. The firm has longstanding relationships with members of Congress and Executive branch officials, and we have worked directly with congressional committee staff and members of Congress to review and explain potentially sensitive transactions.
Wiley Rein’s CFIUS and National Security Practice is further strengthened by the broad and diverse expertise of professionals in the firm’s other areas of specialty, including the Export Controls, Economic Sanctions/Office of Foreign Assets Control, Anti-Money Laundering, FCPA, Cybersecurity, Communications, Privacy, Government Contracts, International Trade, Public Policy, and Corporate practices.
Wiley Rein’s national security experience includes, among others:
- Assisting a Fortune-10 U.S. company through the CFIUS process in conjunction with its joint venture with a government-controlled Middle Eastern company in the oil and gas sector.
- Assisting a major New York private equity fund in its acquisition of one of the largest defense and energy contractors to the U.S. government.
- Advising in multiple sales of U.S. defense contractors to foreign buyers and securing CFIUS approval and security clearances from DSS with respect to companies involved in Top Secret government programs.
- Counseling a major foreign government-controlled satellite company in its acquisition of substantial satellite communications assets serving the United States and the international community.
- Representing a multinational non-U.S. company before DSS, organizing its new U.S. subsidiary to perform classified contracts, and assisting in gaining all required clearances.
- Assisting buyers, sellers, institutional investors, private fund complexes, and foreign sovereign wealth funds with foreign investments in U.S. computer, defense, and natural resources companies.
- Advising a major U.S. consultancy firm on the DSS process and FOCI considerations consistent with the National Industrial Security Program Operating Manual (NISPOM).
- Representing a Middle Eastern shipping company in its successful acquisition of a U.S. logistics firm with extensive classified government contracts.
- Advising a U.K. engineering and infrastructure construction firm in its purchase of an advanced technology and engineering company in the United States.
- Advising in the sale and acquisition of numerous U.S. communications assets, including terrestrial and mobile companies.
- Counseling on the sale of U.S. cellular communications assets to a European telecommunications company.
- Representing clients in various FARA matters including registrations, guidance regarding compliance issues, and advisory opinion requests.
Waldorf Astoria Acquisition by Chinese Investor Raises CFIUS Implications
By Daniel B. Pickard, Nova J. Daly and Usha Neelakantan
October 15, 2014
DeLauro Bill Would Dramatically Broaden CFIUS Reviews to Include “Net Benefit” Test
By Nova J. Daly, Daniel B. Pickard and Adam M. Teslik
September 26, 2014
Landmark CFIUS Ruling in Ralls Case - D.C. Circuit Reverses District Court
By Daniel B. Pickard, Nova J. Daly and Usha Neelakantan
July 15, 2014