FOCI Forum

Dec 6, 2017 8:30am – 5:15pm

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ACI’S INAUGURAL 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 (a “hybrid” arrangement in the case of the latter). In addition, while each of the various mitigation instruments in NISPOM already presents its own challenges, it can become even more complex, such as when a National Security Determination (NID) comes into play. Further, the intersection of FOCI mitigation with the CFIUS process requires a well thought-out strategy toward maximizing the chances of a favorable outcome. 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. As the only comprehensive program of its kind, the agenda has been developed to ensure practical and worthwhile discussion and takeaways.  
Forum Co-Chairs: Angeline G. Chen Vice President, General Counsel and Chief Compliance Officer Siemens Government Technologies, Inc. James D. Harris Senior Counsel Holland & Knight LLP Former Assistant General Counsel, FOCI Operations Division at Defense Security Service
Government Faculty: Benjamin C. Richardson Deputy Director, Security Policy and Oversight U.S. Department of Defense Dr. Gerald D. Curry Deputy Associate Under Secretary for Security U.S. Department of Energy
 

December 6, 2017

 
7:45
Registration Begins and Continental Breakfast
 
8:30
Conference Co-Chairs’ Opening Remarks Angeline G. Chen Vice President, General Counsel and Chief Compliance Officer Siemens Government Technologies, Inc. James D. Harris Senior Counsel Holland & Knight LLP Former Assistant General Counsel, FOCI Operations Division at Defense Security Service
 
8:45
Assessing a Company’s Specific FOCI Risks to Determine the Applicable Mitigation Arrangement Angeline G. Chen Vice President, General Counsel and Chief Compliance Officer Siemens Government Technologies, Inc. Paul Michaels Executive Director & Facility Security Officer (FOCI Program) Westinghouse Government Services LLC Daniel B. Pickard Partner Wiley Rein LLP
  • The length and limits of FOCI mitigation plans: Board Resolution, SCA and SSA, Proxy Agreement, Voting Trust Agreement and hybrid agreements
  • How to interpret the nuances and differences between the various FOCI mitigation instruments
  • How to understand the requirements stipulated by DSS, DOE and DHS
  • Standard Form 328 (Certificate Pertaining to Foreign Interests): When and how often to revise and resubmit the form
  • How to get flexibility with an SSA or SCA
  • To what extent the structure of a transaction determines the FOCI instrument required
  • How a company structure or type of industry can impact the proposed FOCI mitigation arrangement (e.g., if owner is a private equity outfit comprised of various funds where true ownership is less easily identified)
 
9:45
Understanding the Intricacies and Procurement of NIDs Phil Robinson Vice President, Chief Security Officer SSL MDA Holdings, Inc. Jennifer Brown Director of Security & FSO/TCO iDirect Government Outside Director, WSP Group For a Cleared Defense Contractor under a Special Security Agreement (SSA), to gain access to Proscribed Information (PI) via NID approval immediately after contract award can be critical to mission success. This panel discusses the need for NIDs and best practices to obtain them.
  • The components of a National Interest Determination (NID)
  • When is a NID required; understanding different (higher vs. lower) levels of classified information and proscribed information (PI), and how PI relates to the NID
  • How to manage the NID process (best practices), avoid pitfalls and obtain the requisite approvals
  • The role of National Interest Determinations and whether a separate NID is required for each transaction
  • Key policy updates
 
10:30
Refreshment Break
 
10:45
Maintaining FOCI Mitigation: How to Balance the Responsibilities of Outside Directors, Proxy Holders and the Agency in Charge Drew R. Winneberger Proxy Board Member, Trustwave Government Solutions Outside Director, AMEC Foster Wheeler Programs Former Director of Industrial Security Policy and Programs at Defense Security Service John Hillen Proxy Holder & Board Chair, Cygnacom Solutions, Inc. Outside Director, Atkins Nuclear Solutions US Outside Director, Software AG Govt Services James D. Harris Senior Counsel Holland & Knight LLP Former Assistant General Counsel, FOCI Operations Division at Defense Security Service
  • The life cycle of a FOCI mitigation agreement in practice
  • Priorities of the FSO, CSO or GC for the FOCI-mitigated company.
  • How the government supervises compliance and how you can effectively report and make requests in return
  • What makes an effective Outside Director or Proxy Holder
  • The duties of Outside Directors and Proxy Holders in monitoring the FOCI mitigation plan:
    • How to maintain current training and competence in the evolving industrial security program
    • How to balance the responsibility to shareholders with expectations of government inspectors
  • When should DSS permit Outside Directors who are not completely “disinterested” in the entity under FOCI
  • What skill sets and knowledge are really needed by directors
  • What you must know about visitations and what the government considers “routine business” visits
 
11:45
FOCI CASE STUDY Managing the U.S. Subsidiary-Foreign Parent Relationship James Van Horn Associate General Counsel & Managing Attorney, Legal Department, Federal Services APTIM Benjamin A. Powell Partner WilmerHale The experts leading this practical session take you through a case study on how two entities linked by a FOCI agreement can effectively operate. The session will cover topics such as:
  • How to identify, preempt and resolve the most common tensions between the parent company(ies) and its US subsidiary
  • What information can be shared between the US entity and its non-US parent
  • How to conduct business across the respective in-house departments of the US and non-US entities (such as sales, business development, legal and compliance) while protecting US interests
  • Which technological safeguards need to be in place to guarantee compliance with export controls and licensing concerns
 
12:30
Networking Lunch
 
1:30
The Particularities of FOCI Programs: DSS, DOE and the DHS Hybrid Program Dr. Gerald D. Curry Deputy Associate Under Secretary for Security U.S. Department of Energy Harvey Rishikof Co-Chair National Taskforce Law and Cyber American Bar Association Norman E. Pashoian III Industrial Security/FOCI Consultant White & Case LLP James D. Harris Senior Counsel Holland & Knight LLP Former Assistant General Counsel, FOCI Operations Division at Defense Security Service

This expert panel will address the priorities of the key agencies. Panelists will share their insights regarding the following topics:
  • The rationale behind various agencies’ distinct FOCI mitigation processes
  • How to determine which official guidance a company under FOCI must follow (e.g., NISPOM or agency-specific requirements)
  • How the level of a security clearance is related to the agency in charge (such as contracts deemed “critical infrastructure”)
  • Assessing the “ease or difficulty” of implementing a FOCI mitigation plan under DSS versus other agencies, and whether this is industry-dependent or company-specific
  • Understanding which agency will oversee a company’s FOCI action plan and why
  • Expectations and responsibilities for top management, outside directors, proxy holders and trustees: How to make sure the parties understand their respective obligations under the applicable FOCI plan
 
2:30
Refreshment Break
 
2:45
FOCI and CFIUS Approval Processes in Parallel: How Their Interplay Can Impact Due Diligence, Transaction Timelines and Deal Risks Benjamin C. Richardson Deputy Director, Security Policy and Oversight U.S. Department of Defense Angeline G. Chen Vice President, General Counsel and Chief Compliance Officer Siemens Government Technologies, Inc. Dale Turza Senior Vice President and General Counsel SAP National Security Services (SAP NS2) Damara L. Chambers Of Counsel Covington & Burling LLP Some of the most contested transactions in CFIUS reviews involve companies that require FOCI mitigation. Given this reality, it is critical to understand the relationship between the respective processes, what to watch out for, and how companies may benefit from the interplay. This panel of experts will discuss the following topics:
  • How to decide whether or not to file with CFIUS
  • How to assess the risk of undue transaction delays
  • How to identify and address FOCI issues during the due diligence process and in transaction documents
  • What to consider in developing a strategy for managing the FOCI and CFIUS processes together
  • Best practices for coordinating between the agency, US entity, foreign buyer, and outside counsel
  • Recent trends in CFIUS mitigation requirements
  • Industry-specific challenges to identifying true foreign ownership
  • The life cycle of a foreign-owned company: When to report changes on ownership and to whom
  • How to resolve a situation where there is information that will remain classified post-transaction: When to create a separate entity for the transaction
  • What to anticipate from new CFIUS legislation
 
3:45
Keynote Government Interview & Q&A – Recent and Emerging Developments Impacting Chris Griner – Moderator Chair of National Security/CFIUS Group & Co-Managing Partner Stroock & Stroock LLP Benjamin C. Richardson Deputy Director, Security Policy and Oversight U.S. Department of Defense
 
4:45
Conference Concludes