Pre-Conference Workshop

A Complete Primer on CFIUS Timelines, Delays, Filings, Mitigation, and Enforcement: What Can Derail Your Deal vs. Getting the Deal Done

Apr 25, 2022 9:00am – 12:30pm

Speakers

Alexandra López-Casero
Partner
Nixon Peabody LLP

Alexis J. Early
Partner
King & Spalding

Day 1 - Tuesday, April 26, 2022

7:45
Registration and Morning Coffee
8:30
Opening Remarks from the Co-Chairs
8:45
Opening Interview: The Economic and Security Roles of Department of Defense Supply Chains and Foreign Investment in Those Supply Chains
9:15
The Continued, Expanding CFIUS Scope: Transactions Involving Critical Technologies, Critical Infrastructure and Sensitive Data (TID) Transactions
10:15
Networking Refreshment Break
10:30
SCORECARD: How CFIUS is Processing Cases under FIRRMA and Evaluating the Streamlined Declaration Process
11:30

CASE STUDIES

Recent, Significant CFIUS Transactions and What They Reveal About Future Deals: Lesser-Known Takeaways from Magnachip, TenCent, TikTok, BiteDance and More
12:30
Networking Luncheon
1:45
Keynote Address
2:15

STRATEGY SESSION

The Finer Points of Navigating the CFIUS Process, Mitigation and Securing Approvals: Aligning Your Strategy to the New Realities of Timelines, Delays and Heightened Scrutiny
3:15
Networking Refreshment Break
3:30
Keynote Address
4:00
FIRESIDE CHAT WITH IN-HOUSE COUNSEL Behind the Scenes of Implementing a Mitigation Agreement
5:00
Closing Remarks and Cocktail Reception

Day 2 - Wednesday, April 27, 2022

8:00
Registration and Morning Coffee
8:30
Opening Remarks from the Co-Chairs
8:35
The Present and Future of CFIUS Scrutiny for Non-Notified Sectors: New Technology Sectors Under the Microscope – From Bio Tech to Dating Apps
9:30
How Mitigation Agreements are Being Reviewed and Enforced: Compliance, Monitoring and Auditing Takeaways
10:30
Networking Refreshment Break
10:45
Filing Energy Deals with CFIUS: Top Five Mistakes Practitioners Make
11:15
International FDI Regimes: Comparing and Contrasting How to Do Business Across Multiple Nations and the Latest Developments on FDI Processes
12:15
Luncheon
1:30
Interview: Excepted Foreign States List
2:00

CFIUS AND EXPORT CONTROLS

Export Control Classification: Examining the Scope of Critical Technology and How it Affects Mandatory Filing
2:45
Networking Reception Break
3:00
Bankruptcy, Foreclosure, and Debt Conversion and the Interplay with CFIUS: The Lesser-Known Takeaways for Pending and Future Transactions
3:45

Policy in Practice

Takeaways on Balancing How to Maintain Open Investment Policy while Protecting National Security
4:30
Closing Remarks from the Conference Co-Chair and Conference Concludes

Day 1 - Tuesday, April 26, 2022

7:45
Registration and Morning Coffee
8:30
Opening Remarks from the Co-Chairs

Stephen R. Heifetz
Partner, National Security
Wilson Sonsini Goodrich & Rosati

Jeanine P. McGuinness
Partner, International Trade & Compliance
Orrick

8:45
Opening Interview: The Economic and Security Roles of Department of Defense Supply Chains and Foreign Investment in Those Supply Chains

Andrew J. Pahutski
Director, Foreign Investment Review
U.S Department of Defense

Moderated By:

Irmie “Ike” Blanton
Deputy Director, International and Strategic Engagement Office of Foreign Investment Review
U.S. Department of Defense

9:15
The Continued, Expanding CFIUS Scope: Transactions Involving Critical Technologies, Critical Infrastructure and Sensitive Data (TID) Transactions

Andrew J. Pahutski
Director, Foreign Investment Review
U.S Department of Defense

Eric Longnecker
Director, Office of Strategic Industries and Economic Security, Bureau of Industry and Security
U.S. Department of Commerce

Jeremy B. Zucker
Partner
Dechert LLP

This expert panel will unpack the steps required to assess risks associated with CFIUS’ jurisdiction over non-controlling investments. Topics will include:

  • Examining the “covered investment” standard
  • Assessing how CFIUS reviews covered investments versus covered control transactions
  • Considering the implications of CFIUS’ broader jurisdiction
  • Exploring the review standards for real estate acquisitions
  • Analyzing how a transaction proceeds when sensitive data is involved
  • Examining the kinds of controls being imposed to mitigate CFIUS concerns with regards to critical infrastructure

10:15
Networking Refreshment Break
10:30
SCORECARD: How CFIUS is Processing Cases under FIRRMA and Evaluating the Streamlined Declaration Process

David Jividen
Deputy Director, CFIUS Foreign Investment Review
OSD, Industrial Policy

U.S. Department of Defense

Grigore Alexandru
Non-Attorney Policy Advisor
Sidley Austin LLP

  • Reviewing the volume of filings CFIUS is processing
  • Comparing lower-risk and higher-risk deals, and how they are being processed in 45-day timeframe
  • Analyzing how the reforms effected the ability of companies to get deals done in a timely manner?
  • Evaluating transactions designed to evade or circumvent jurisdiction
  • Examining how CFIUS is reviewing transactions to determine their national security profile
  • Exploring the challenges for U.S. businesses and foreign investors and how they are responding

11:30

CASE STUDIES

Recent, Significant CFIUS Transactions and What They Reveal About Future Deals: Lesser-Known Takeaways from Magnachip, TenCent, TikTok, BiteDance and More

Nancy A. Fischer
Partner
Pillsbury Winthrop Shaw Pittman LLP

This session will take a closre look at the precedent-setting action taken against Magnachip Semiconductor Ltd. and the practical questions and aftermath arising from this case. This session will look at what type of coordination occurs with foreign governments and what is reveals for future transactions.

  • 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?
  • What cand be considered as interstate commerce under the regulations?
  • Discussing the potential impact of CFIUS involvement on the U.S. stock exchanges

12:30
Networking Luncheon
1:45
Keynote Address
2:15

STRATEGY SESSION

The Finer Points of Navigating the CFIUS Process, Mitigation and Securing Approvals: Aligning Your Strategy to the New Realities of Timelines, Delays and Heightened Scrutiny
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Brian Rohde
Deputy Director, Mitigation
U.S. Department of Defense CFIUS

Ivan A. Schlager, P.C.
Partner, International Trade & National Security
Kirkland & Ellis LLP

Brian J. Mich
Partner
Control Risks

  • Evaluating mitigation strategies and the associated costs and risks
  • What kind of agreements are (and are not) receiving clearance?
  • Determining which kind of mitigation is appropriate for which transactions
  • Determining 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 one and operate under it
    • Assessing are 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

3:15
Networking Refreshment Break
3:30
Keynote Address
4:00
FIRESIDE CHAT WITH IN-HOUSE COUNSEL Behind the Scenes of Implementing a Mitigation Agreement
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David Walker
CFIUS Security Officer
HCL America

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

Moderator:

Steve Klemencic
Managing Director
Berkeley Research Group LLC

  • 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 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

5:00
Closing Remarks and Cocktail Reception

Day 2 - Wednesday, April 27, 2022

8:00
Registration and Morning Coffee
8:30
Opening Remarks from the Co-Chairs

Samuel P. Jacobs
Associate Managing Director
Kroll

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

8:35
The Present and Future of CFIUS Scrutiny for Non-Notified Sectors: New Technology Sectors Under the Microscope – From Bio Tech to Dating Apps

Shawn Cooley
Partner
Weil Gotshal & Manges LLP

  • How CFIUS contacts companies regarding non-notified transactions
  • Analyzing the recent escalation of investigations and enforcement actions in connection with “non-notified” transactions
    • Which types of transactions are being captured?
    • Do they typically involve China?
    • When CFIUS looks at past transactions, how far back are they typically looking?
    • How are practitioners are approaching all of this?
  • New CFIUS enforcement priorities and how to best prepare and navigate
  • Evaluating best practices for non-notified companies to respond to CFIUS

9:30
How Mitigation Agreements are Being Reviewed and Enforced: Compliance, Monitoring and Auditing Takeaways
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Eric S. Johnson
Deputy Chief, Compliance and Enforcement National Security Division
Foreign Investment Review Section

U.S. Department of Justice

Thomas Liu
Deputy Director, Compliance and Monitoring, Foreign Investments Review
Committee on Foreign Investments in the U.S. (CFIUS)
Industrial Policy, Office of the Under Secretary of Defense, Acquisition & Sustainment

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Amy Schultz
Senior Trade and Industry Analyst Office of Strategic Industries and Economic Security Bureau of Industry and Security
U.S. Department of Commerce

Randall H. Cook
Senior Managing Director
Ankura

  • How CFIUS is reviewing and enforcing mitigation agreements, including site visits and civil penalties for non-compliance
  • Examining the role of third-party monitors and how their function in the post-deal oversight process
    • Monitoring and evaluating compliance
    • Identifying and employing best practices for dealing with post-deal third-party monitors
    • Reviewing government expectations of the third-party auditors and monitors
  • Under what circumstances are dealmakers are compelled to renegotiate conditions
  • Examining CFIUS’ focus on post-agreement monitoring and enforcement

10:30
Networking Refreshment Break
10:45
Filing Energy Deals with CFIUS: Top Five Mistakes Practitioners Make

Delegates will hear how the Department of Energy’s role within CFIUS has become more critical as the committee scrutinizes agreements involving Critical Technologies, Critical Infrastructure and Sensitive Data (TID).

11:15
International FDI Regimes: Comparing and Contrasting How to Do Business Across Multiple Nations and the Latest Developments on FDI Processes

Katherine Burke
Director, Investment Review Division
Innovation, Science and Economic Development Canada (ISED)

Scott Boylan
Partner
StoneTurn

Moderator:

Dr. Harry G. Broadman
Partner, Managing Director and Chair of Emerging Markets and CFIUS Practices
Berkeley Research Group LLC (BRG)
Faculty Member
Johns Hopkins University

The United Kingdom, Canada and Germany have updated their foreign investment screening regimes with an aim to improve how each country addresses foreign investment involving critical technology. During this session, benefit from a unique opportunity to hear how these regime changes are affecting current and future deals, as well as tips for future mitigation.

  • Identifying how the updated regimes will affect potential investment decisions involving multinational companies operating in different jurisdictions
    • How will newly enacted UK National Security and Investment (NSI) Act (2021) and the UK’s newly introduced foreign direct investment (FDI) regime effect agreements?
    • How will Germany’s amended Foreign Trade and Payment Ordinance (2021) effect mandatory cross-sector filing for companies?
    • How will the updated Investment Canada Act (2021) encourage investment while maintaining security?
  • Assessing which regulations come into play during the transaction and after
  • Predicting how regimes will be enforced and how much activity we can anticipate from regulators
  • Anticipating how the regimes will affect transactions

12:15
Luncheon
1:30
Interview: Excepted Foreign States List

Moderator:

Anne Salladin
Partner
Hogan Lovells US LLP

  • Forecasting how the Excepted Foreign States List could be expanded, including a look at how often the list is reviewed and the process for expansion?
  • Implementing the rules of the excepted investor status
  • Adopting a foreign investment review process
  • How an entity qualifies as an excepted investor under FIRRMA and thus avoids CFIUS’s mandatory filing and obligations
  • When CFIUS conducts retroactive reviews of an investor’s status, and under what circumstances they are retroactively revoking or changing an investor’s status

2:00

CFIUS AND EXPORT CONTROLS

Export Control Classification: Examining the Scope of Critical Technology and How it Affects Mandatory Filing

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

Nicholas Klein
Of Counsel
DLA Piper

Waqas Shahid
Senior Managing Director, Corporate Regulatory Compliance; Program & Project Management
Ankura

This session will delve into the Export Control Reform Act of 2018 (ECRA), its interplay with FIRRMA and how presidential authority to regulate and enforce export controls is now being implemented.

  • Practical impact of expanding the mandatory declaration process
  • Unpacking the evolving interplay of export controls and foreign investment reviews
  • Evaluating whether or not your company has critical technology
  • Discussing how presidential authority is being 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
  • Emerging implications for exporters operating in sectors that are identified as involving foundational or emerging technologies

2:45
Networking Reception Break
3:00
Bankruptcy, Foreclosure, and Debt Conversion and the Interplay with CFIUS: The Lesser-Known Takeaways for Pending and Future Transactions

  • Which types of transactions are being flagged for review, and which transactions are subject to divestment orders
  • Examining potential red flags when selling company assets including transactions involving personal data
  • Anticipating national security concerns and proactively providing solutions during bankruptcy filing
  • Deciphering the best time to make a CFIUS filing amid bankruptcy transactions
  • Coordinating multiple CFIUS filings

3:45

Policy in Practice

Takeaways on Balancing How to Maintain Open Investment Policy while Protecting National Security

Emily Kilcrease
Senior Fellow and Director of the Energy, Economics, and Security Program
Center for a New American Security

Nate Bolin
Partner
DLA Piper

Join this discussion as expert speakers examining how CFIUS fits into the broader U.S. foreign investment policy. Examine real life and hypothetical scenarios for attracting more business investments and discuss the corresponding security consequences.

4:30
Closing Remarks from the Conference Co-Chair and Conference Concludes

A Complete Primer on CFIUS Timelines, Delays, Filings, Mitigation, and Enforcement: What Can Derail Your Deal vs. Getting the Deal Done

Apr 25, 2022 9:00am – 12:30pm

Alexandra López-Casero
Partner
Nixon Peabody LLP

Alexis J. Early
Partner
King & Spalding

What is it about?

Join this in-depth hands-on discussion on the fundamentals of how the Committee on Foreign Investments in the United States (CFIUS) operates and what it means for companies under review.

  • Analyzing what types of investment transactions are considered a security threat including Transactions Involving Critical Technologies, Critical Infrastructure and Sensitive Data (TID) Transactions
  • Examining how the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA), and subsequent amendments, gives the committee broader authority to take action in transactions involving national security
  • Exploring the government’s stance on reviewing and enforcing agreements, including site visits and civil penalties for non-compliance
  • Examining the role of third-party monitors and how their function in the post-deal oversight process
  • Analyzing How the mandatory filing obligation has changed transactional due diligence
  • Examining the nuts and bolts of mandatory filings, including what can cause delays