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CFIUS

The CFIUS practice of Skadden, Arps, Slate, Meagher & Flom LLP and affiliates (“Skadden”) represents clients in navigating a variety of federal defense, homeland security, law enforcement, intelligence and other related issues arising from a broad range of precedent-setting transactions, government investigations, and public-private collaborations implicating national security.

Our work includes:

  • national security reviews of cross-border mergers and acquisitions, including by the Committee on Foreign Investment in the United States (CFIUS), the Defense Security Service (DSS), the “Team Telecom” agencies, the Department of State’s Directorate of Defense Trade Controls and the Department of Energy;
  • government investigations, congressional investigations, classified investigations, cybersecurity and other technology-related security concerns, and lawful surveillance and stored-data access requests;
  • negotiation of and ongoing compliance with agreements with United States government agencies; including national security agreements; network security agreements; agreements to mitigate foreign ownership, control or influence; letters of assurance; cooperative research and development agreements; and other private agreements; and
  • crisis management, including identifying legal risks and assembling and coordinating multidisciplined, highly experienced teams of advisers.

Skadden attorneys have wide-ranging experience before CFIUS, DSS and Team Telecom, having successfully represented some of the largest and most complex transactions reviewed by all three groups. We have negotiated landmark national security mitigation agreements with CFIUS and/or DSS involving U.S. businesses in the telecommunications, information technology, energy and defense sectors. Our attorneys have represented a variety of entities involved in such transactions (both public and private), including purchasers, sellers, minority investors, financial institutions, private equity consortia and other institutional investors.

Skadden counsels on structuring and negotiating transactions to anticipate and address national security concerns. The firm’s experience with national security review processes has given the team a unique understanding of the arrangements necessary to resolve U.S. government security concerns presented by proposed transactions. Our integrated approach to transactions allows us to more proactively address such concerns as they arise. The group regularly works with teams from all of Skadden’s offices to advise on transaction risk and structuring in the earliest stages of transaction planning.

Our attorneys frequently advise clients on the national security aspects of technology matters in transactions, joint ventures, commercial agreements and IP licensing arrangements. We address cybersecurity matters, such as incident response, federal government engagement and regulatory compliance. We also advise on lawful surveillance matters related to federal statutes including the Wiretap Act, Electronic Communications Privacy Act, Stored Communications Act, pen/trap statutes, Foreign Intelligence Surveillance Act and Communications Assistance for Law Enforcement Act. In the transactional context, Skadden attorneys also assist clients navigating relevant U.S. export control reviews of technology exports.

Attorneys in Skadden’s CFIUS practice have formerly held positions within the federal government on Capitol Hill, within the CFIUS process and as members of the U.S. intelligence community. In 2014, Skadden received a Chambers USA “Award for Excellence,” which cited our “incredible depth of CFIUS expertise.” Skadden’s CFIUS attorneys repeatedly have been selected for inclusion in Chambers Global: The World’s Leading Lawyers for Business, Chambers USA: America’s Leading Lawyers for Business and The Best Lawyers in America.

Key representations include:

  • A123 Systems, Inc., a developer and manufacturer of advanced batteries and energy storage systems, in its $257 million sale of substantially all of its assets to Wanxiang Group (China) via an auction;
  • Alcatel (France), a wireline and wireless telecommunications company, in its $13.4 billion merger-of-equals with Lucent Technologies Inc., a manufacturer of products used to build telecommunications network infrastructure;
  • Applied Materials, Inc. in its $9.4 billion acquisition of Tokyo Electron Limited (Japan). Both companies are manufacturers of semiconductor production equipment;
  • AutoNavi Holdings Limited (China), a provider of navigation and location-based solutions, in:

    • its acquisition of Alohar Mobile Inc., a provider of geolocation software; and
    • its $1.6 billion unsolicited acquisition by Alibaba, Inc.
  • Bain Capital as co-lead investor (along with Singaporean investor GIC Private Limited and others), in its $7 billion take-private of BMC Software, Inc., a provider of business service management software;
  • China Huaxin Post and Telecommunications Economy Development Centre (China), a state-owned enterprise, in its precedent-setting $362 million acquisition of the Enterprise business of Alcatel-Lucent S.A. (France), a wireline and wireless telecommunications company with significant U.S. operations;
  • China Three Gorges Corporation (China) in its acquisition of a 21.35 percent stake in Energias de Portugal S.A. (Portugal) and its U.S. subsidiary for €2.69 billion;
  • DigitalGlobe, Inc. in its $900 million merger with GeoEye, Inc., an information technology provider for the aerospace and defense industry;
  • DRS Technologies, Inc., a manufacturer of military electronics products, in its $5.2 billion acquisition by Finmeccanica S.p.A. (Italy), an aerospace and defense company;
  • Dubai Aerospace Enterprise Ltd. (United Arab Emirates) in:

    • its $1 billion acquisition of Standard Aero Acquisition Holdings, Inc., a special purpose entity formed by Standard Aero Limited (a provider of aircraft maintenance services based in Canada), from The Carlyle Group, a private equity firm (Skadden also represented DAE Aviation Holdings, Inc. in the related acquisition financing, including: a $937 million senior secured bank financing from Barclays Bank PLC and a $325 million high-yield offering of 11.25% senior notes due 2015); and
    • its $436 million sale of Landmark Aviation, a fixed-base operator that serves the aviation industry, to GTCR Golder Rauner, LLC (a private equity firm) and Encore FBO, LLC;
  • EMC Corporation in the contribution of its Iomega network attached storage product division to a joint venture with Lenovo Group Ltd. (China);
  • L-1 Identity Solutions, manufacturer and provider of biometrics capture hardware and software, in its $1.6 billion sale to Safran SA (France);
  • Landis + Gyr AG, maker of “smart grid” energy technology, in its $2.3 billion sale to Toshiba Corporation (Japan);
  • LSI Corporation in its $6.6 billion acquisition by Avago Technologies Ltd (Singapore);
  • Mail.ru (Russia), an Internet company in its $188 million acquisition (along with Russian investor Digital Sky Technologies) of ICQ from AOL Inc.;
  • Marubeni Corporation (Japan) in its $2.7 billion (excluding debt) acquisition of Gavilon Group LLC, a distributor of agricultural and energy commodities;
  • MIPS Technologies, Inc. in its $100 million acquisition by Imagination Technologies Group plc (United Kingdom);
  • The NASDAQ Stock Market, Inc. in its $1.6 billion sale of a 28 percent stake in the London Stock Exchange Group plc to Borse Dubai Limited (United Arab Emirates) (a holding company for investments in the stock exchange made by Dubai International Financial Centre);
  • OAO Severstal (Russia) in a number of acquisitions of steel manufacturers and producers, including:

    • its $810 million acquisition of Sparrows Point LLC from ArcelorMittal (Luxembourg);
    • its $327 million acquisition of WCI Steel, Inc.; and
    • its $1.3 billion acquisition of Esmark Incorporated;
  • Sprint Nextel Corporation, a telecommunications provider, in:

    • its $21.6 billion sale to SoftBank Corporation (Japan), recognized as the “Global M&A Deal of the Year: Grand Prize” by The American Lawyer and in the Corporate & Commercial category in the Financial Times’ 2013 U.S. “Innovative Lawyers” report; and
    • its $2.2 billion acquisition of the remaining 50 percent stake in Clearwire Corporation;
  • Toray Industries, Inc. (Japan) in its $584 million purchase of Zoltek Companies, Inc.; and
  • Toshiba Corporation (Japan) in:

    • the $540 million sale of a 10 percent stake in Westinghouse Electric Company LLC, a builder of nuclear power plants, to Kazatomprom (Kazakhstan), a supplier of uranium; and
    • its $5.4 billion acquisition of Westinghouse Electric Company LLC, a builder of nuclear power plants, from British Nuclear Fuels plc (United Kingdom).