Background - Practices (Details)

National Security

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National security legal issues are complex, multidisciplinary, and have consequences that extend across national borders. They can be among the more vexing challenges that businesses face. Our team of former government national security lawyers, federal and state prosecutors, Congressional investigators, and White House staff have the legal background and practical experience to provide an insider’s perspective on the ever-evolving national security landscape and the consequent rules and regulations that affect our clients’ business.

Our attorneys have worked in and with the many Executive Branch agencies and offices and in Congress on formulating and enforcing national security policies and laws. Crowell & Moring’s National Security Practice provides a unique blend of government experience to assist clients with transactions under review by the government, and advise clients on matters involving export controls, sanctions, and other regulatory exclusions requiring deliberate consideration; national security investigations; and government other scrutiny of business transactions and practices that impact national security law or policy.

Key Areas

Our experience focuses on the following key areas:

The Committee on Foreign Investment in the United States (CFIUS); Mitigation of Foreign Ownership, Control or Influence (FOCI); Team Telecom. The CFIUS team counsels both buyer and seller corporate clients on managing formal and informal considerations involved in obtaining CFIUS clearance, and represents those clients before the Committee. This experience further helps clients mitigate issues that arise with foreign ownership, control or influence, which can have a significant impact on businesses. In addition, the team advises clients regarding transactions and licensing applications under review by Team Telecom, formally known as the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector. Our lawyers also assist clients in commenting on rulemaking and in understanding and shaping changes to the statutory and regulatory authorities that govern this area. Some of our representative engagements include:

  • Identified national security implications in a number of potential transactions, advised clients on whether to submit a voluntary notice to CFIUS, and counseled clients through every stage of the CFIUS review process.
  • Obtaining CFIUS approval on a complex global transaction involving a leading automobile parts manufacturer.
  • Representing a private equity firm in the sale of a U.S. portfolio company engaged in the manufacture of advanced composite materials used in aircraft (among other industries) to a Turkish strategic buyer in a CFIUS review.
  • Obtained CFIUS clearance for a transaction involving a U.S. engineering services firm and a minority investment by an Australian defense contractor.

Anti-Bribery/Anti-Corruption. As the government continues to focus on corporate corruption, including the Foreign Corrupt Practices Act (FCPA), our lawyers represent Fortune 100 clients in evaluating risk and self-disclosure considerations, building compliance programs from the ground up, and conducting corruption-related due diligence and risk assessments to minimize attention from U.S. regulators, including the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC). At the same time, the National Security team, including our former FCPA prosecutors, defend clients in corporate and individual investigations. Some of our representative work includes:

  • Leading self-reporting to both the SEC and DOJ and orchestrating all remediation efforts on behalf of Ralph Lauren Corporation for conduct in Argentina, including risk assessments, compliance and training reviews and implementation, and negotiating precedent-setting dual non-prosecution agreements (NPAs) with the SEC and DOJ.
  • Drafting and implementing anti-corruption compliance policies and procedures including the Local Compliance Officer Handbook and third-party due diligence materials for a medical device manufacturer.
  • Advising a publicly traded company during its pre-acquisition due diligence and post-acquisition due diligence of acquiree’s operations in South America, including an investigation involving in-country interviews, document collection and review, compliance policy assessments, and coordination with the client in conducting a post-acquisition risk assessment and compliance program implementation.
  • Representing Magyar Telekom Nyrt. during a six-year internal and DOJ/SEC investigation concerning conduct in southeastern Europe, helping the company defend itself, revamp its anti-corruption program and controls, negotiate a two-year deferred prosecution agreement (DPA) with the DOJ and Consent Settlement with the SEC, draft annual DPA compliance reports to the DOJ and SEC, and secure dismissal of the criminal information upon conclusion of the DPA.

Economic Sanctions & Export Controls/AML. Our team represents software, manufacturing, defense, financial services firms, and other companies with a cross-border footprint on economic sanctions, export controls, anti-money laundering (AML) laws, and similar authorities on which the U.S. government is increasingly relying to accomplish its national security and foreign policy goals. Our lawyers have held significant federal government positions and have decades of collective experience in this area. In addition to close regulatory counseling on U.S., U.K., EU, and other authorities, we draw on our institutional knowledge and focus on long-term strategy to represent clients on internal investigations, and on our ability to combine our regulatory subject matter knowledge with our white collar investigations experience to assist clients with external civil and criminal enforcement. Some of our representative engagements in this area include:

  • Representing a non-U.S.-headquartered bank relating to the DOJ’s criminal money laundering investigation of the $4 billion 1MDB embezzlement scandal, resulting in non-prosecution.
  • Representing the former chief AML officer of a large U.S. bank before the DOJ in a criminal Bank Secrecy Act (BSA) investigation, leading to a declination to prosecute by the DOJ, and successfully representing the same person in a civil BSA investigation before the DOJ and the U.S. Treasury Department’s Financial Crimes Enforcement Network (FinCEN).
  • Successfully representing a Fortune 100 manufacturer in responding to an Office of Foreign Assets Control (OFAC) subpoena relating to the company’s lawful sales into Iran during the Joint Comprehensive Plan of Action (JCPOA).
  • Securing the first exemption granted by the UN Security Council’s Committee Established Pursuant to Resolution 1718 to a non-governmental organization for export of otherwise controlled products to North Korea as part of a multidrug resistant treatment program.
  • Responding to, and successfully closing without penalty or a finding of violation, an OFAC subpoena related to a Russia sanctions matters on behalf of a U.S. information and software provider.
  • Responding to, and successfully closing without penalty or a finding of violation, an OFAC subpoena relating to transactions conducted from Iran, Syria, and North Korea by a cryptocurrency exchanger.
  • Representing a U.S. exporter and its Japanese parent in a directed disclosure involving the export of microelectronics technology to Hong Kong that was transshipped to China. We prevailed in a reclassification of technology that resulted in no license required for China.

Cybersecurity & Data Privacy. The proliferation of cyber-attacks makes cybersecurity and privacy compliance more important than ever, particularly as criminal ransomware attacks and nation-state or state sponsored attacks target government contractors, information security providers, and others that may use sensitive technologies or critical infrastructure. Our national security team, many of whom maintain security clearances, helps businesses navigate the prevention of and response to incidents impacting sensitive government systems, Controlled Unclassified Information, Sensitive Security Information, classified information, and personal information, including those threats linked to Advanced Persistent Threats (APTs). Some our work has included:

  • Representing one of the largest U.S. insurance companies in litigation against a global pharmaceutical company involving the highly publicized NotPetya cyber-attack. The dispute involves up to a $1 billion loss due to this significant network interruption that public reporting has attributed to a nation state actor.
  • Representing a U.S. technology company in an investigation by the Federal Bureau of Investigation (FBI) and DOJ into the “Cloud Hopper” cybersecurity attacks that compromised the networks of several major companies and were led by a hacking group working for China’s Ministry of State Security known as Advanced Persistent Threat 10 (APT10 Group). The investigation resulted in a federal indictment of the hackers in 2018.
  • Managing a multi-year investigation of global operations for a technology company regarding advanced threat actors targeting the company and its customers. Our response activities included Five Eyes coordination, high level briefings, government document demands, and regular engagement and technical exchanges with federal law enforcement, all of which resulted in the indictment of two foreign hackers associated with APT 10.

National Security Litigation and Investigations. Our national security team recognizes the unique challenges presented by national security investigations, where the evidence can be classified, probable cause to support Foreign Intelligence Surveillance Act (FISA) warrants is presented in secrecy, and few law firm lawyers have the experience working on these matters from the inside of government. We assist individuals and companies alike in navigating this thorny landscape, including leveraging our government experience representing the government before the Foreign Intelligence Surveillance Court, and handling National Security Letters. Representative matters include:

  • Representing an individual in an investigation arising out of the 2016 U.S. presidential election and related activities.
  • Representing a former federal agent in a criminal investigation regarding issues of foreign influence.
  • Representing multiple current and former government officials in connection with security clearance renewal and related issues.

Government Contracts/Classified Contracting. Crowell & Moring’s nationally, Chambers-ranked Government Contracts team covers virtually every variant of national security issues facing government contractors, including the National Industrial Security Program and National Institute of Standards and Technology (NIST)/Insider Threats, classified contract suspension and debarment (including the U.S. military’s vendor vetting process), classified and national security litigation (including protests and contract claims and appeals), investigations, and counseling. Highlights include:

  • Advising several clients on reporting and other obligations under the National Industrial Security Program Operating Manual (NISPOM).
  • Assisting businesses in the classified space to navigate the process for obtaining facility security clearances.
  • Advising companies on Defense Federal Acquisition Regulations Supplement (DFARS) rules on safeguarding classified and other controlled or sensitive government information entrusted to them.
  • Conducting a comprehensive physical security assessment and providing a gap analysis for major government contractor, in coordination with a technical expert, and assisting on developing a best practice compliance program.

While our team is always evolving, some of the government roles our team members have held include:

  • United States Attorney, Eastern District of Virginia, Department of Justice
  • United States Attorney, Southern District of Texas, Department of Justice
  • Acting United States Attorney, Eastern District of New York, Department of Justice
  • Deputy U.S. Trade Representative (USTR)
  • Acting Administrator, U.S. Drug Enforcement Administration (DEA)
  • Chief of Staff, U.S. Department of Homeland Security (DHS)
  • Chief of Staff, Federal Bureau of Investigation (FBI)
  • Chief of Staff, U.S. Immigration and Customs Enforcement (ICE)
  • Chief Deputy, District of Colombia Attorney General’s Office
  • Chief Counsel, Financial Crimes Enforcement Network (FinCEN)
  • Attorney-Advisor, FinCEN
  • Assistant Director for Transnational Threats, Office of Foreign Assets Control (OFAC)
  • Attorney-Advisor, National Security Division, Department of Justice
  • First Assistant Attorney General, New Jersey Attorney General’s Office
  • Counsel to the Senate Judiciary Committee
  • Staff Director to the Senate Caucus on International Narcotics Control
  • Assistant United States Attorney, multiple offices
  • Trial Attorney, Fraud Section, Criminal Division, Department of Justice
  • Trial Attorney, Criminal Enforcement Section, Antitrust Division, Department of Justice
  • Legal Expert, Al-Qaida/Taliban Monitoring Team, United Nations Security Council
  • Trial Attorney, Federal Programs Branch, Civil Division, Department of Justice
  • Senior Counsel and Branch Chief, Enforcement Division, Securities and Exchange Commission (SEC)

From Washington, D.C. and New York to Los Angeles and London, and from San Francisco to Shanghai and Brussels, our National Security Practice has the reach and experience to tackle virtually any national security issue facing businesses that operate in today’s global and digital economy.