Registration and Morning Coffee

Opening Remarks from the Co-Chairs

J. Philip Ludvigson
Partner
King & Spalding LLP
Former Acting Deputy Assistant Secretary/Director, Office of Investment Security (CFIUS),
U.S. Department of the Treasury

Luci Hague
Partner
Kirkland & Ellis LLP

Fireside Chat: Biden Executive Order

Paul Rosen
Assistant Secretary of the Treasury, Office of Investment Security
U.S. Department of the Treasury

Non-Notified Transactions: Unpacking How the Committee is Now Approaching Reviews and Approvals – and the Timelines

Shawn Cooley
Partner
Weil Gotshal & Manges LLP
Former Director, Foreign Investment Risk Management (FIRM) U.S. Department of Homeland Security

Grigore Alexandru
Non-Attorney Policy Advisor
Sidley Austin LLP
Former Deputy Director, Office of Foreign Investment Review
Department of Defense (DOD)

This session will review the lesser-known takeaways from the Annual Report to Congress for calendar year 2021, issued by the U.S. Department of the Treasury, as Chair of the Committee on Foreign Investment in the United States (CFIUS), in August 2022. Delegates will gain unique insight into the aftermath, real-world processes and expectations when filing with CFIUS.

• Analyzing the record number of covered transactions, declarations and notices-and what they suggest for the path forward
• Evaluating the rate of clearance timelines, and what can cause a clearance to take longer
• Exploring the non-notified process-and anticipated roadblocks
• Revisiting the risk for non-notified transactions and the risk of not filing
• Within the pool of non-notified transactions, are there any trends or outliers of note?
• The driving factors affecting CFIUS decision-making when it comes to non-notified transactions

Networking Refreshment Break Sponsored by

Spotlight Interview

How New CFIUS Enforcement Mechanisms Are Structured: Perspectives on Implementation and What Now Constitutes a Violation

Melissa Mannino
Partner
BakerHostetler LLP

Malcolm J. (Mick) Tuesley
Partner
Simpson Thacher & Bartlett LLP

Tyler Wood
Deputy Chief for Compliance and Enforcement
U.S. Department of Justice

Moderated By:

Jerry Fowler
Director, Compliance, Forensics and Intelligence
Control Risks

In October 2022, the U.S. Department of the Treasury released CFIUS Enforcement and Penalty Guidelines. This session will look at the guidelines and address the three categories of acts or omissions that may constitute a Violation.

• Failure to File: Exploring failure to timely submit a mandatory declaration or notice, as applicable
• Non-Compliance with CFIUS Mitigation: Examining which conduct is prohibited by or otherwise fails to comply with CFIUS mitigation agreements, conditions, or orders (“CFIUS Mitigation”)
• Material Misstatement, Omission, or False Certification: Analyzing examples of, and what constitutes a misstatement, omissions, false or incomplete certifications,
• Enforcing mandatory filing requirements
• How will they structure their violation letter, monetary penalties, requests for information

Networking Luncheon

BIDEN EXECUTIVE ORDER PART I

Personal Sensitive Data and Mandatory Cyber Incident Filings: Contrasting CFIUS, DHS and CISA Requirements in Practice

Thomas Brown
Managing Director
Berkley Research Group LLC (BRG)

Nancy A. Fischer
Partner and Global Regulatory Leader
Pillsbury Winthrop Shaw Pittman LLP

Antonia Tzinova
Partner
Holland & Knight LLP, United States

President Joseph Biden issued an Executive Order providing guidance related to the U.S. national security foreign direct investment review process administered by the Committee on Foreign Investment in the United States. This session will examine how the Executive Order has affected the CFIUS process and what has changed, and what we can anticipate going forward.

Three of the Five Factors for National Security:

• The New Ways CFIUS is Ensuring National Security with a Focus on Cybersecurity, Technology and Personal Sensitive Data
• Ensuring the U.S. maintains its position as a technology leader in the areas of microelectronics, artificial intelligence, biotechnology and biomanufacturing, quantum computing, advanced clean energy, and climate adaptation
• Examining Cybersecurity risks that threaten to impair national security
• Mitigating new risks to U.S. persons’ sensitive data
• Exploring how CFIUS is interpreting the Executive Order guidance
• How the statutory framework has changed

BIDEN EXECUTIVE ORDER PART II

M&A: The New Ways CFIUS is Approaching National Security with a Focus on Multiple Acquisitions or Investments

Eric S. Johnson
Principal Deputy Chief, National Security Division, Foreign Investment Review Section
U.S. Department of Justice

Brian P. Curran
Partner
Hogan Lovells US LLP

Randall H. Cook
Senior Managing Director
Ankura

Building on the previous discussion, this session will examine how the Executive Order has affected the CFIUS process with respect to multiple acquisitions or investments in a single sector or related sector. Delegates will glean how transactions are now being scrutinized under this new directive.

Two of Five Factors for National Security:

• How the Committee shall consider, as appropriate, the risks arising from a covered transaction in the context of multiple acquisitions or investments in a single sector or in related sectors.
• Ensuring the resilience of critical U.S. supply chain that may have national security implications, including those outside of the defense industrial base
• Exploring how CFIUS is interpreting the Executive Order guidance
• Examining how the statutory framework has changed

Networking Refreshment Break Sponsored by

Perspectives from General Counsel: Their Evolving Roles for Meeting CFIUS Standards

Jared Roscoe
Partner, Deputy General Counsel
SoftBank Group International

Stacy Grant
Vice President & General Counsel,
M&A and Ventures
Honeywell

Peter Wexler
Senior Vice President and Chief Legal Officer
Schneider Electric

Moderated By:

M. Angella Castille
Partner
Faegre Drinker Biddle & Reath LLP

Hear from a panel of general counsel as they offer their big picture, strategic perspectives on meeting CFIUS requirements from the early stages of deciding to file, to negotiating mitigation agreements, to implementing a mitigation agreement within the company. Delegates will gain a greater understanding of industry considerations within the CFIUS context.

Reverse CFIUS? Preparing for the Future of Outbound Investments Scrutiny

Stephenie Gosnell Handler
Partner
Gibson, Dunn & Crutcher LLP

Aimen Mir
Partner
Freshfields Bruckhaus Deringer LLP

Rob Strayer
Executive Vice President of Policy
Information Technology Industry Council

The Honorable Mario Mancuso, P.C.
Senior Partner, Chair, CFIUS and National Security Practice
Kirkland & Ellis LLP

Hear a panel of experts discuss the anticipated outcomes and ramifications of a reverse CFIUS-like screening process, as the U.S. Government considers legislation that would establish an interagency committee to review and restrict U.S. outbound investments. Delegates will gain greater insight on the potential impact and how to prepare.

• What would the regulatory framework look like and will it mimic other frameworks
• Will this be a statute or an executive order?
• Examining the scope of the proposed regime and which sectors will be a focus
• Imposing conditions to mitigating national security risks
• Coordinating with foreign regimes to ensure both U.S. and foreign entities are notifying the interagency committee before engaging in covered activities

Closing Remarks from the Conference Co-Chair and End of Day One
Networking Cocktail Reception

Registration and Morning Coffee

Opening Remarks from the Co-Chairs

HYPOTHETICAL SCENARIOS AND ANONYMOUS AUDIENCE POLLING

Non-Notified Transactions: What Would You Do If?

David D. Jividen, Esq
CFIUS/TT Senior National Security Advisor
White and Case LLP
Former Deputy Director, Office of Global Investments and Economic Security, U.S. Department of Defense

Vincent Mekles
Senior Managing Director
Ankura

Delegates are invited to participate in a series of hypothetical scenarios and anonymous audience polling as speakers unpack the nuances companies experience during the filing process, and what can lead to a non-notified transaction. Delegates will gain a greater understanding of the risk analysis involved and more critically important takeaways.

• Navigating the non-notified process: What we know and don’t know
• Enforcement action and penalties – and its hidden lessons
• How to know if it is necessary to file and the new, heightened risks of getting it wrong
• NSA compliance and implementing a compliance program

The Ambiguities Around Re-Classification and TID: Critical Technology, Critical Infrastructure, Sensitive Data and How Reclassifying Technology is Affecting NSAs

Christopher B. Monahan
Partner
Faegre Drinker Biddle & Reath LLP

Nicholas Klein
Partner
DLA Piper

Scott Boylan
Partner
StoneTurn

This expert panel will unpack the nuances of TID classification, how technology changes can prompt a second look at an NSA and how classifications can impact new National Security Agreements.

Topics will include:

• Examining how technology classifications have changed
• How does CFIUS review older agreements regarding critical technology classifications
• Exploring mechanisms for revisiting NSAs
• How to address regulatory ambiguities

Networking Refreshment Break

International FDI Regimes & Enforcement

Dr. Angelika Milger
Policy Officer, Division VE3-I Investment Screening, EU and International Relations
Federal Ministry for Economic Affairs and Climate Action, Germany

James Burns
A/Director General, Investment Review Division
Innovation, Science and Economic Development Canada, Government of Canada

Brian J. Egan
Partner
Skadden, Arps, Slate, Meagher & Flom LLP

Marie-Anne Lavergne
Head - Foreign Investments Control
French Treasury (DG Trésor), France

• Ensuring that filings are made in the correct jurisdiction(s)
• The nature and extent of coordination between CFIUS and foreign governments
• Best practices for navigating cross-border FDI transactions
• Examining lessons learned:
• Acquisition of London-listed defence firm Ultra Electronics (ULE.L) by rival Cobham, owned by U.S. private equity firm Advent
• Proposed merger between Taiwan-based Global Wafers and Siltronic reviewed by the German government

STRATEGY SESSION

Mitigation Compliance and Securing Approvals: Aligning Your Strategy to the New Realities of Timelines, Delays and Heightened Scrutiny

Samuel P. Jacobs
Associate Managing Director
Kroll

J. Philip Ludvigson
Partner
King & Spalding LLP
Former Acting Deputy Assistant Secretary/Director, Office of Investment Security (CFIUS),
U.S. Department of the Treasury

Ivan A. Schlager, P.C.
Partner
Kirkland & Ellis LLP

• Re-evaluating mitigation strategies and the associated costs and risks
• Which kinds of agreements are, and are not, receiving clearance?
• Determining which types of mitigation are appropriate for which transactions
• Deciding if and when to utilize trusts, holding entities, shell entities, and/ or temporary monitors/boards
• Identifying which mitigation instruments are available, including:
• How to select the right ones and operate under them
• Assessing the real associated costs?
• Trends in the type and frequency of mitigation – assessing the types of cases that are, and are not, amenable to mitigation

Networking Luncheon

IN-HOUSE EXECUTIVE PERSPECTIVES ON MITIGATION

How C-Suite Leaders are Approaching CFIUS Mitigation, Operational Challenges, Cybersecurity and More

Scott Baucum
Vice-President U.S. Special Compliance & Asset Protection
Bayer U.S.

David Walker
CFIUS Security Officer
HCL America

Joshua Fitzhugh
Vice President, Global Trade
Flex

Moderated By:

Steven Klemencic
Managing Director
Berkeley Research Group LLC (BRG)

Hear from senior decision-makers from leading organizations, as they offer strategic, big-picture perspectives on how companies are approaching CFIUS filings, the pain points and operational considerations.

• Calculating how companies account for the costs of mitigation and to what extent the parties and CFIUS accounted for the cost
• Deciding whether or not to address the operations side when negotiating a mitigation agreement
• Meeting privacy obligations for the personal information of U.S citizens
• Managing Cyber Security and Insider Threats at the operational level
• Implementing policy and process formation, and standard operating procedures for oversight, auditing and monitoring of both systems and teams

How CFIUS is Thinking about Green Technology and Energy Deals being Reviewed?

Nate Bolin
Partner
DLA Piper

James Mendenhall
Partner, Global Arbitration, Trade and Advocacy
Sidley Austin LLP

Jason Zorn
Associate General Counsel for Nuclear Regulatory & Compliance
Constellation

This session will explore how CFIUS is reviewing transactions in the energy and green technology sector following the report entitled Building Resilient Supply Chains, Revitalizing American Manufacturing, and Fostering Broad- Based Growth, including a look at transactions involving supply chains, batteries and rare earth minerals.

Networking Reception Break

CASE STUDIES

Recent, Notable CFIUS Transactions and What They Reveal About Future Deals and Getting Deals Done: Takeaways from Vonage, Fufeng and TikTok

Jeanine P. McGuinness
Partner
Orrick Herrington & Sutcliffe LLP

Richard Mintz
Partner
FGS Global

Through real-life transactions, this session will take a closer look at the types of coordination occurring between U.S. and foreign governments, how to engage and manage the full range of stakeholders that influence deal outcomes – and what this reveals for future transactions. Speakers will delve into the Ericsson regulatory approval to complete the acquisition of Vonage, the CFIUS review of Chinese conglomerate, Fufeng Group and the TikTok ByteDance merger.

• Managing controversy and optimizing outcomes – crafting a deal narrative, activating support, leveraging social media, and connecting with Congress
• Weaponizing CFIUS – how competitors and adversaries can steal the deal
• Exploring CFIUS jurisdiction and what causes intervention in a transaction
• What can now constitute a national security threat
• What constitutes U.S. business: The extent of a U.S. nexus
• Identifying what qualifies as a transaction, and what doesn’t?
• What can be considered as interstate commerce under the regulations?

Perspectives from the Banking and Private Equity Sectors: How Executives are Re-Thinking Investment Fund Structuring, Management and CFIUS Risks

President Biden announced the Open Investment Policy, a commitment “to treat all investors fairly and equitably under the law,” in June 2021, while reiterating a commitment to protect national security. This session will look at how to effectively navigate timelines and processes amid the CFIUS and foreign investor sector.

• How are PE firms dealing with the new CFIUS real estate scrutiny?
• Are we seeing a change in the way PE firms are structuring their funds, shaping their deal making practices or organizing their financing practices?
• What trends are being seen with regard to the review of PE deals, process challenges, mitigation in the PE context, due diligence in the PE context, etc.?
• Considerations for U.S. private equity funds that are evaluating whether or not their fund structures could cause them to be considered a foreign person for CFIUS purposes

Closing Remarks from the Conference Co-Chairs and Conference Concludes