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The CFIUS Landscape in 2018 and Beyond: Practical Guidance to the Hazy Road

The CFIUS Landscape in 2018 and Beyond: Practical Guidance to the Hazy Road

Live Webcast Date: Wednesday, February 07, 2018 at 12:00 pm - 1:00 pm (ET)
Corporate Law Recording

$49.00 - 1.0 Credit Hour

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Barton LLP
Ankura Consulting Group, LLC

Barton LLP

Barton LLP is comprised of an elite team of former partners of “BigLaw” who have joined together to create a progressive law firm. We view legal services as business services and our attorneys and staff are business people serving business clients to advance their business goals, which is why we say, “Barton Means Business – Changing the Way You Think About Lawyers.” Barton works at the intersection of law and business to provide client access to the legal acumen, business resources and relationships needed for success in an increasingly complex economic environment. Barton was featured as “Ones to Watch for 2016: The Best Boutique Law Firms” and was also named Best for Commercial Litigation in New York by Acquisition International magazine. Barton was recently nationally recognized by Law360 as one of 10 law firms “giving BigLaw a run for its money.” Ten of Barton’s attorneys were named Super Lawyers in Thomson Reuters’ 2017 annual survey of the top 5% of lawyers in the nation. For more information, please visit www.bartonesq.com.

Website: http://www.bartonesq.com/

Ankura Consulting Group, LLC

Ankura is an expert services firm defined by HOW we solve challenges. Whether a client is facing an immediate business challenge, trying to increase the value of their company or protect against future risks, Ankura designs, develops, and executes tailored solutions by assembling the right combination of expertise. We build on this experience with every case, client, and situation, collaborating to create innovative, customized solutions, and strategies designed for today’s ever-changing business environment. This gives our clients unparalleled insight and experience across a wide range of economic, governance, and regulatory challenges. At Ankura, we know that collaboration drives results.

Website: https://ankura.com/

William A. Newman

William A. NewmanPartnerBarton LLP

Bill Newman advises Barton’s clients on the structuring and execution of sophisticated business and securities transactions as well as regulatory compliance for a variety of...

Bill Newman advises Barton’s clients on the structuring and execution of sophisticated business and securities transactions as well as regulatory compliance for a variety of organizations. He actively represents operating businesses, investment funds and individual investors across a wide variety of industries, including financial services, investment management, energy, real estate, information technology, media, marketing, life sciences, software, manufacturing and distribution. Bill has extensive experience in the negotiation of complex business and commercial transactions involving multiple parties. Bill assists emerging growth companies in accessing U.S. capital markets and is often involved with mergers and acquisitions and joint ventures on behalf of Barton’s clients. His mergers and acquisitions experience includes representing investment funds in the purchase and sales of portfolio companies. He has considerable expertise regarding inbound investments in the United States and inbound acquisitions of U.S. businesses, including CFIUS regulation, an area in which he has written and presented extensively. He maintains an “AV Preeminent” peer review rating in Martindale, the highest rating in the legal profession for professional excellence and ethical standards.  Bill received his B.A. from Yale University and his J.D. from The University of Michigan Law School.

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Randall H. Cook

Randall H. CookSenior Managing DirectorAnkura Consulting Group, LLC

Randall Cook is a Senior Managing Director at Ankura based in New York. He has more than 19 years of experience conducting complex investigations and audits; leading and advising...

Randall Cook is a Senior Managing Director at Ankura based in New York. He has more than 19 years of experience conducting complex investigations and audits; leading and advising organizations engaged with critical operational and compliance challenges; and designing and delivering high-performance, persistent, integrated risk mitigation solutions.

Prior to joining Ankura, Randall was Senior Counsel for two Fortune 50 defense technology companies, where he built and led global investigations and compliance programs focused on consistent, process-based risk analysis, engagement, and mitigation. These programs were a critical enabler for the companies’ successful navigation of consent agreements with the US Department of State.

Randall was also an Assistant United States Attorney in the federal district of New Jersey, where he prosecuted numerous complex crimes while serving as the Anti-Money Laundering District Coordinator for the Organized Crime and Drug Enforcement Task Force and as District Coordinator for Counterproliferation Initiatives. In addition to this, as an attorney for Covington & Burling LLP in Washington, DC, he provided counsel and advocated for clients confronting complex regulatory issues in multiple industries.

He served in the United States Army and Army Reserve as an Infantry Officer, Battalion Executive Officer, Company Commander, and Inspector General. He is currently assigned as an instructor in the US Army Command and General Staff College, where he teaches strategy and operational design to Army field-grade officers.

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William A. Newman, Partner
Barton LLP

Change in the CFIUS authorizing legislation is likely to happen during 2018, certainly 2017 brought certain major changes to the CFIUS clearance process.  Without doubt, it has become very difficult to advise clients with respect to the key aspects of CFIUS review:

  • In determining whether to file, what nexus to national security is required?
  • When the notice will be accepted for filing and the 30-day review period begin to run?
  • Will the review be followed by the 45-day investigative phase?
  • How long should clients plan for the entire process?
  • What will clients have to concede in mitigation?
  • In the end, will be transaction be cleared?

Advisors are searching for tactics to deal with the very real day-to-day CFIUS challenges:

  • Recognizing that the volume of CFIUS filings has increased dramatically and that, as a result, the Committee is understaffed, what procedures can be followed to main good communication with reviewers?
  • What procedures can be used to educate and support staff members lacking experience in a particular industry, technology or stage of company?
  • What procedures are available if review is delayed or unresponsive?

Randall H. Cook, Senior Managing Director
Ankura Consulting Group, LLC
  • Context: The current (Trump) paradox:
    • Great environment for deals and investors:
      • Remarkable bull stock market
      • Remarkable market stability
      • Growing global economy
      • Massive reserves of uncommitted international investment capital
      • Reduced tax drag on investment dollars entering US economy
      • (with key exceptions, including CFIUS) less intrusive regulatory environment in the US
      • Administration that is hungry (and willing to shake the trees) to “get wins” by doing deals and create US jobs through FDI
        •  the State Dept to actively promote US arms exports
    • Political and policy environment of contention, anxiety, and uncertainty
      • Unpredictable US President, who relishes chaos
      • Nationalist politics and policies in ascendance in both US and internationally
      • Simmering investigation/political crisis that could lead to constitutional impasse
      • Federal government bureaucracy/agencies that are being substantially cut/experiencing massive personnel departures
      • Active contention over US institutional and cultural norms
      • Reassessment of the status quo assumptions of post-WWII era
        • Shift from free trade, open borders, and shared regimes to protectionism and trade wars
        • Shift away from collective security to raw realism
      • Geopolitical environment of active threats and great power contention
        • North Korea, Iran volatility
        • US National Security strategy that identifies China as active strategic competitor
        • Previous narrative that China could be integrated into liberal world economy by letting them in is being replaced by assessment that China is a deliberate, successful exploiter
    • CFIUS is one of the institution where the tensions within this paradox play out most acutely
      • 2017 a year of unprecedented activity
        • Approximately 237 filings
        • Significantly larger number of consultations that were never submitted 
        • 2 transactions blocked by CFIUS (contrast with only 1 in previous 20 years)
          • Both involved China
        • Spectacle of Brocade re-domesticating in order to overcome CFIUS hurdle
      • CFIUS process under pressure from sheer volume
        • Significantly longer pre-submission process
        • Longer period from submission to acceptance
        • Almost every submission goes to investigation stage
        • Numerous requests to withdraw and refile
        • Process now generally takes 4 months or more to complete
      • Substantive outcome trends
        • CFIUS more likely to find that transactions do impact national security and require mitigation
        • But reduced appetite for complex mitigation that requires long term monitoring or enforcement; more likely to look at structural mitigation or opposing transaction
      • Legislative proposals both to extend CFIUS jurisdiction to significantly more cases and make process more stringent
  • What is CFIUS
    • Purpose
    • Historical, policy, and statutory background
    • Composition
    • Key concepts
      • Covered transaction
      • Transaction
      • Foreign person
      • Control
      • National security
    • Current process
  • Historical data and trends
    • Filing statistics
    • Regional statistics
    • China statistics
  • Recent cases
  • Mitigation methods and trends
  • Legislative proposals
    • Cornyn legislation
    • Others
    • Key issues
      • CFIUS jurisdiction (what transactions are reviewed)
      • Definition of national security
      • Process change
        • Longer review cycle
        • Summarized filings
    • Timeline: as early as August 2018
    • Impact:
      • Radical increase in number of filings
      • Impact on CFIUS: where is the capacity?
  • Non-US National Security Reviews
    • EU
    • China
  • Observations on the road ahead
    • Increased likelihood of filing requirement
    • Increased politicization of process
    • But also continuing appetite to do deals
  • Practical considerations
    • Honest analysis
    • thorough diligence
    • strategic planning
      • build into your deal design, diligence, and timeline
      • know the issues and have a mitigation plan
      • engage early and actively
      • engage expert assistance

On November 8, 2017, the Foreign Investment Risk Review Modernization Act (FIRRMA), a long-awaited bill aimed at modernizing the Committee on Foreign Investment in the United States (CFIUS) review and approval process, was finally introduced. Over the last years, the CFIUS has struggled to stay apace with the surge of foreign investment in the U.S. The new bill specifically directs the CFIUS to update regulations and to address national security concerns implicated in the acquisitions of sensitive U.S. technology by "countries of special concern". Under FIRRMA, CFIUS oversight would also be expanded to include certain joint ventures, minor-share investments in critical technology and infrastructure sectors, and real estate transactions near military facilities or other sensitive government facilities.

FIRRMA is not the only legislative effort to revamp the CFIUS review process. The United States Foreign Investment Review Act, introduced on October 18, 2017, also proposed to review the economic impact of any foreign acquisition alongside the CFIUS national security review. Considering these legislative proposals, it is critical for U.S. and foreign companies to understand how CFIUS review process works and monitor any developments that might impact foreign investment in the U.S.

In this webcast, a panel of key thought leaders organized by The Knowledge Group will provide an overview of the current developments in CFIUS review landscape and its implications to foreign investments in the U.S. They will offer practical guidance in light of these potential changes.

Key topics include:

  1. CFIUS Background and Context
    1. Policy BS
    2. CFIUS Development
    3. Metrics
  2. Current CFIUS Process
    1. Authority
    2. Composition
    3. Key Concepts/Concerns
  3. Practical Issues/Considerations with the Current Process
  4. CFIUS Prospective Options
    1. Drivers
    2. Legislative Options
  5. Prospective Tips and Thought 

This is a must attend event for anyone interested in understanding the significant issues relating to the CFIUS Landscape in 2018 and Beyond.

During this Webcast, you will hear: 

  • Detailed guidance explained by the most qualified key leaders & practitioners.
  • Hear directly from key thought leaders
  • Interact directly with the panel during Q&A

Enroll in this course today by clicking the “Register” button. Space is limited and discounts apply for early registrants.

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