FOCI National Forum

Apr 23, 2019 9:00am - 6:00pm

Day 1 - Wednesday, April 24, 2019

8:00
Registration and Morning Coffee
8:45
Opening Remarks from the Co-Chairs
9:00
Keynote Address
9:30

THE BIG PICTURE

The CFIUS Review Process Post-FIRRMA: What Will it Mean for Your Business and the Future of FDI?
11:00
Networking Break
11:15

NEW CFIUS FILING PROCESS

When Will These Changes Actually Become Effective and What Will the Implications Be?
12:00

CROSS-BORDER BEST PRACTICES

Structuring Cross-Border M&A Transactions After FIRRMA
12:45
Networking Luncheon
2:00

FOCUS ON CHINA – INTERACTIVE SESSION

To File or Not to File – You Be the Judge: Making the Decision of Whether or Not to File a Voluntary Notice for CFIUS Review in the Context of Future Transactions with China
3:00
Refreshment Break
3:15

MITIGATION

The Latest Strategies for Structuring Mitigation Agreements and Post-Acquisition Implementation: Updating Your Approach to Evolving CFIUS Requirements and Trends
4:15

CFIUS AND EXPORT CONTROLS

Implications of Recent Export Control Reform Affecting Emerging and Foundational Technologies
5:15
End of Day One

Cocktail Reception Hosted By:

Day 2 - Thursday, April 25, 2019

8:00
Morning Coffee
8:30
Opening Remarks from the Co-Chairs
8:45
Keynote Interview
9:15

REGULATORY PANEL

FIRRMA and Sensitive Data, Infrastructure and Real Estate
10:30
Morning Coffee Break
10:45

EXPANDED REACH

Private Equity and Real Estate Experts Discuss the New Scope of CFIUS Jurisdiction and Overcoming CFIUS Challenges
11:30

NEXT STEPS FOR TEAM TELECOM

Reviewing the Past Year and Assessing Potential Reforms for Existing and Future Team Telecom Processes
12:15
Chair’s Closing Remarks and End of Conference

CFIUS AROUND THE GLOBE – Recent Developments on New Proposed UK and EU Rules on Foreign Direct Investments

Apr 25, 2019 1:30pm - 5:00pm

Speakers

Jennifer Danner Riccardi
Senior Trade Policy Advisor
Delegation of the European Union to the United States

Veronica Roberts
Partner
Herbert Smith Freehills LLP (London)

Cassandra Brown
Partner
Blake, Cassels & Graydon LLP (Canada)

Day 1 - Wednesday, April 24, 2019

8:00
Registration and Morning Coffee
8:45
Opening Remarks from the Co-Chairs

Aimen Mir
Partner, Antitrust, Competition and Trade
Freshfields Bruckhaus Deringer LLP
Former Deputy Assistant Secretary for Investment Security
U.S. Department of the Treasury

Christine E. Savage
Partner
King & Spalding LLP

9:00
Keynote Address

Adam Hickey
Deputy Assistant Attorney General for the National Security Division
U.S. Department of Justice

9:30

THE BIG PICTURE

The CFIUS Review Process Post-FIRRMA: What Will it Mean for Your Business and the Future of FDI?

James (Del) Renigar
Senior International Policy & Trade Advisor
General Electric

Mark E. Plotkin
Partner
Covington & Burling LLP

Anne Salladin
Partner
Hogan Lovells

Steven Klemencic
Managing Director
Ankura

Brian Reissaus
CFIUS Staff Chair and Director, Investment Review & Investigation
U.S. Department of the Treasury

Panel Moderator

Aimen Mir
Partner, Antitrust, Competition and Trade
Freshfields Bruckhaus Deringer LLP
Former Deputy Assistant Secretary for Investment Security
U.S. Department of the Treasury

  • Examining the expansion of CFIUS jurisdiction under FIRRMA
  • What is now deemed a covered transaction under the expanded scope of FIRRMA?
  • How does FIRRMA change the way CFIUS will actually review transactions to determine their national security profile?
  • What criteria is CFIUS using to assess risks related to sensitive personal data, emerging and foundational technologies, and critical infrastructure?
  • How is U.S. trade policy affecting CFIUS reviews? What impact will FIRRMA have on U.S. technological competitiveness and the investment environment?
  • What challenges will the new CFIUS reform present for U.S. businesses and foreign investors? How can companies manage such challenges?
  • Will the reforms affect the ability of companies to get deals done in a timely manner?
  • How is CFIUS preparing to be able to handle the increased volume of filings?

11:00
Networking Break
11:15

NEW CFIUS FILING PROCESS

When Will These Changes Actually Become Effective and What Will the Implications Be?

Michael Gershberg
Partner
Fried, Frank, Harris, Shriver & Jacobson LLP

Nova Daly
Senior Public Policy Advisor
Wiley Rein LLP

  • What transactions qualify for the new, short/abbreviated filing process?
  • Will CFIUS clear transactions from friendly countries more quickly?
  • What is the likelihood that CFIUS follows up with a request for the long-form filing?
  • For what transactions and under what circumstances will filing a declaration be mandatory?
  • If you are currently planning a big transaction with long lead times, how to address concerns that the mandatory trigger will apply before the deal closes
  • How will the new mandatory filings be enforced and managed?
  • Understanding key definitions of “critical technology,” “critical infrastructure” and “sensitive personal data”
  • Identifying countries of special concern: will mandatory filing triggers be set sooner for transactions where there is a Chinese or Russian government stake?
  • Determining whether to make a voluntary filing now in anticipation of a filing being required down the road

12:00

CROSS-BORDER BEST PRACTICES

Structuring Cross-Border M&A Transactions After FIRRMA

Faryar Shirzad
Managing Director
Goldman Sachs

Ivan Schlager
Partner, Head of National Security Practice
Skadden, Arps, Slate, Meagher & Flom, LLP

Ambassador Miriam Sapiro
Managing Director
Sard Verbinnen & Co
& Vice Chairman, SVC Public Affairs

John Lash
Principal, Leader of CFIUS Group for the Americas
Control Risks

  • Examining recent cases and their implications
  • What regulations come into play during the transaction and after?
  • What are the insurance considerations?
  • Identifying what language to include in your purchase agreement to address the potential of CFIUS reviews not coming to agreement
    • How to shift risk between the parties
  • Understanding how to structure your transaction documents when you have parties interested in transferring risk from one party to another
  • Practical tips on how M&A lawyers should look at CFIUS for structuring and planning purposes
  • Assessing the unique issues that come into play when a Chinese company acquires a European company, and the European company has U.S. subsidiaries

12:45
Networking Luncheon
2:00

FOCUS ON CHINA – INTERACTIVE SESSION

To File or Not to File – You Be the Judge: Making the Decision of Whether or Not to File a Voluntary Notice for CFIUS Review in the Context of Future Transactions with China

Shawn Cooley
Partner
Kirkland & Ellis LLP

Justin T. Huff
Of Counsel
Jones Day

Stephen Heifetz
Partner
Wilson Sonsini Goodrich & Rosati

New this year, this interactive session will present four complex scenarios involving Chinese acquisitions or transactions that would raise the question of whether or not to file a voluntary notice to CFIUS for review. This expert panel will share the detailed steps required to properly assess the relative risks associated with the decision to file or not file under the presented scenarios, and will test your knowledge of the viability of potential future deals with China through audience polling. Bring your questions and strengthen your analytical skills as you discuss and debate whether to submit a voluntary notice to CFIUS under complex scenarios involving:

 

  • The continued applicability of CFIUS’ existing control standard
  • The anticipated “other investment” standard where the target company is involved with critical technologies, critical infrastructure, or sensitive data
  • The anticipated “substantial interest” standard for government controlled entities acquiring critical technologies, critical infrastructure, or sensitive data
  • The anticipated “proximity” and “sensitivity” standards for real estate acquisitions

3:00
Refreshment Break
3:15

MITIGATION

The Latest Strategies for Structuring Mitigation Agreements and Post-Acquisition Implementation: Updating Your Approach to Evolving CFIUS Requirements and Trends

Tyrone Brown
Deputy Chief, Foreign Investment Review Staff
U.S. Department of Justice

Robert Watson
Associate Director, Global Markets & Investments Mitigation and Compliance Team
U.S Department of Defense

Gregory Michaels
Managing Director, Cyber Risk
Kroll Associates

Bruce Andrews
Vice President for Global Public Policy
SoftBank Group (Former Deputy Secretary, U.S. Department of Commerce)

Moderator

Stacia Sowerby
Counsel
White & Case LLP

  • Examining how the new legislation is going to affect mitigation requirements and agreements
  • Exploring new and interesting ways to address mitigation
  • Determining whether and when to put in place trusts, holding entities, shell entities, temporary monitors/boards
  • Identifying what mitigation instrument you are going to work with
    • How to select the right one and operate under it
    • What are the real associated costs?
  • Trends in the type and frequency of mitigation – assessing the types of cases that are amenable to mitigation
  • Understanding when and how CFIUS decides whether China cases and non-China cases are amenable to mitigation
  • Under what circumstances does FIRRMA give CFIUS authority to:
    • Impose an interim mitigation agreement?
    • Require plans for monitoring compliance with mitigation agreements?
    • Determine that a current/older mitigation agreement is no longer warranted?
    • Allow for the use of third-party, independent parties to monitor agreements?
  • Post-Acquisition: managing the costs and day-to-day impact of complying with mitigation requirements

4:15

CFIUS AND EXPORT CONTROLS

Implications of Recent Export Control Reform Affecting Emerging and Foundational Technologies

Matthew S. Borman
Deputy Assistant Secretary of Commerce for Export Administration
U.S. Department of Commerce

Waqas Shahid
Senior Managing Director
Ankura

Panel Moderator

Christine E. Savage
Partner
King & Spalding LLP

  • In what new ways does the Export Control Reform Act of 2018 (ECRA) grant the President authority to regulate and enforce export controls?
  • How the Commerce Department will implement its new authorities under the ECRA and an update on draft regulations
  • Understanding the new review process for domestic technology transfers
  • How the enhanced intersection of CFIUS and export control authorities are causing Department of Homeland Security to take a fresh look at its emerging technology equities in both contexts
  • How is the President coordinating with the Secretaries of Commerce, Defense, Energy and State to identify “emerging and foundational technologies” that are essential to national security, but are not deemed
    “critical technologies” subject to CFIUS review?
  • What implications will this have for those exporters operating in sectors that are identified as involving foundational or emerging technologies?
  • How will the legislation affect the Commerce Control List (CCL)?

5:15
End of Day One

Cocktail Reception Hosted By:

Day 2 - Thursday, April 25, 2019

8:00
Morning Coffee
8:30
Opening Remarks from the Co-Chairs
8:45
Keynote Interview

David Stapleton
Acting Deputy Assistant Secretary of Defense for Industrial Policy
U.S. Department of Defense

9:15

REGULATORY PANEL

FIRRMA and Sensitive Data, Infrastructure and Real Estate

Sanchi Jayaram
Chief, Foreign Investment and Corporate Engagement
U.S. Department of Justice

Brian Reissaus invited
CFIUS Staff Chair and Director, Investment Review & Investigation
U.S. Department of the Treasury

Joseph A. Benkert
Senior Advisor, National Security
Morrison & Foerster LLP

Christa Brzozowski
Deputy Assistant Secretary, Senior Policy Analyst
U.S. Department of Homeland Security

David Sullivan
Assistant General Counsel for International Affairs
U.S. Department of the Treasury

10:30
Morning Coffee Break
10:45

EXPANDED REACH

Private Equity and Real Estate Experts Discuss the New Scope of CFIUS Jurisdiction and Overcoming CFIUS Challenges

Jason Mulvihill
Chief Operating Office & General Counsel
American Investment Council

Nicole Y. Lamb-Hale
Managing Director – Business Intelligence & Investigations
Former Assistant Secretary of Commerce, U.S. Department of Commerce, International Trade Administration

Kroll Associates

  • Analyzing the new FIRRMA investment funds provisions and understanding their implications for companies working with private equity or other capital funds
  • Clarifying CFIUS’s treatment of certain indirect investment funds (those involving “critical technologies,” “critical infrastructure” or U.S. citizen personal data)
  • What is considered passive investment and what is not?
  • Under what circumstances should U.S. funds with foreign limited partners consider insulating their foreign LPs so as to minimize the risk of CFIUS jurisdiction? How should they most effectively go about doing this?
  • Assessing how companies are dealing with CFIUS – are they changing the structuring of their funds? Are they changing their deal making practices? Are they doing anything differently regarding their financing or fundraising?
  • Defining which real estate transactions are deemed covered by CFIUS jurisdiction, and how this will affect the real estate industry
  • How do you assess proximity to military installations to determine whether you have a covered transaction or not?

11:30

NEXT STEPS FOR TEAM TELECOM

Reviewing the Past Year and Assessing Potential Reforms for Existing and Future Team Telecom Processes

Kathleen Collins
Assistant Bureau Chief, International Bureau
Federal Communications Commission

Loyaan Egal
Deputy Chief for Telecom
U.S. Department of Justice

Panel Moderator

Kent D. Bressie
Partner
Harris, Wiltshire & Grannis LLP

  • Assessing potential reforms involving reviews of FCC applications involving deals between U.S. and foreign telecom firms
  • Overview of the Federal Communications Commission/Team Telecom regulatory framework
  • Assessing the impact of the FCC’s pending Team Telecom Reform rulemaking proceeding on existing and future FCC-Team Telecom processes
  • Coordinating Executive Branch reviews among different U.S. agencies
  • Overlap of Team Telecom and CFIUS reviews
  • How the new elements implemented within CFIUS will affect the Team Telecom process as well
  • What determines when a full review is necessary versus when can something be rolled up very quickly?

12:15
Chair’s Closing Remarks and End of Conference

FOCI National Forum

Apr 23, 2019 9:00am - 6:00pm

$1,295

What is it about?

ACI’S 2nd NATIONAL FORUM ON FOCI IS THE ONLY COMPREHENSIVE EVENT OF ITS KIND.

 

Companies under FOCI need to stay alert on many fronts. With DSS being the primary agency in charge of overseeing FOCI mitigation, DOE and DHS also have their respective requirements.  In addition, while each of the various mitigation instruments in NISPOM already presents its own challenges, it can become even more complex when a National Security Determination (NID) comes into play.

Further, the intersection of FOCI mitigation with the CFIUS approval process requires a well thought-out strategy toward maximizing the chances of a favorable outcome – a process that has become even more complex given the recent passing of the anticipated CFIUS Reform (FIRRMA).

 

This FOCI conference will bring together key stakeholders from government, industry and private practice, who are involved in some of the most significant matters to date.  This year’s agenda has been revamped to provide solutions to the industry’s most pressing needs and to ensure practical and worthwhile discussions and takeaways.

CFIUS AROUND THE GLOBE – Recent Developments on New Proposed UK and EU Rules on Foreign Direct Investments

Apr 25, 2019 1:30pm - 5:00pm

$600

Speakers

Jennifer Danner Riccardi
Senior Trade Policy Advisor
Delegation of the European Union to the United States

Veronica Roberts
Partner
Herbert Smith Freehills LLP (London)

Cassandra Brown
Partner
Blake, Cassels & Graydon LLP (Canada)

What is it about?

  • Comparing the various FDI regimes
  • What are governments other than the U.S. government doing, and to what extent are they sharing their data?
  • Exploring how other countries are going to enforce CFIUS type provisions
  • Assessing how multi-lateral deals will be impacted by the formal due process in other countries
  • Examining the German government’s decision to block the sale of Leifeld Metal Spinning to China
  • Analyzing the latest UK and EU proposals to scrutinize transactions on the grounds of national security interests
  • Understanding the issues that are triggered when a company acquiresanother company within the same country, but the company beingacquired has a U.S. subsidiary