Integration of FOCI-Mitigation into Deal Structure


June 15, 2021
12:00 pm - 01:30 pm ET

About the Webinar

Probing the existence of Foreign Ownership, Control, or Influence (FOCI) over a U.S. company that maintains a facility security clearance is one of the ways that the U.S. government ensures the security of the Defense Industrial Base (DIB) and helps protect the national security of the United States. Companies seeking to initiate classified business activity with the United States government, and certain companies that already are government contractors and are contemplating investment from a non-U.S. source, will need to undergo a FOCI review. This may be accompanied by a review by the Committee on Foreign Investment in the United States (CFIUS) and/or Team Telecom, but it is a separate process that involves sometimes complex negotiations and creative solutions. The process now is governed by codified regulations for the first time, after the longstanding National Industrial Security Program Operating Manual (NISPOM) was incorporated into the Code of Federal Regulations in February 2021. Corporate counsel and advisors should consider how FOCI reviews have evolved to address a rapidly transforming risk and regulatory landscape, including heightened concerns about cybersecurity and Controlled Unclassified Information (CUI).

In this free, CLE-eligible webinar discussion, general counsel, compliance leaders, and M&A and financing practitioners will hear from an official with the Defense Counterintelligence and Security Agency (DCSA), two outside counsel with extensive experience assisting clients in negotiating FOCI-mitigation agreements with DCSA, the CFIUS process, and planning for mitigation in deal structures, and two Ankura practitioners who have helped multiple companies in the Defense Industrial Base to develop and implement FOCI-mitigation agreements. The topics of discussion will include:

  • Overview of FOCI: How is it identified?
  • Codification of the NISPOM: What changed?
  • Basics of FOCI-mitigation: What are the options?
  • How to integrate FOCI mitigation and parallel review by CFIUS or Team Telecom into the structure of your deals and develop specific mitigation measures
  • Overlap of DCSA’s work on FOCI and CUI with other emerging DoD requirements under the Cybersecurity Maturity Model Certification (CMMC)
  • Implementation and sustainment of programs for FOCI-mitigation and cybersecurity

CLE pending.