There have been profound changes in the aerospace, defense and homeland security sectors in recent years – with defense firms experiencing robust growth and continued consolidation, commercial aerospace firms facing continued adjustments, and the emerging need for homeland security solutions driving new business start ups and strategic alliances.
Sutherland attorneys in the firm’s growing Aerospace, Defense and Homeland Security Practice Group assist both U.S. and foreign firms, as well as government entities in making strategic decisions; providing “best value” solutions to government and private-sector customers; and addressing complex, multi-dimensional legal problems. Our range of experience in this vibrant sector, including an understanding of complex defense programs, budgets and the procurement process, gives us a strong knowledge base that allows our attorneys to hit the ground running. We provide advice on cutting-edge issues that span multiple legal and business disciplines.
Specifically, our attorneys are experienced, and have recently assisted firms in these sectors, in the following areas:
Antitrust and Competition
We appear regularly before the U.S. regulatory agencies (the Department of Justice and the Federal Trade Commission) and the Department of Defense in the course of representing aerospace and defense clients in merger reviews. With continued consolidation at the prime and now subsystem level in the defense field, firms face greater issues and challenges in addressing antitrust and competitive situations. Our attorneys have been involved in a number of recent major defense and aerospace acquisitions. With our unique industry background, we are able to provide clients with an analysis of potential risks on any proposed transaction. We regularly participate in filings under the Hart-Scott-Rodino Improvements Act (more than seven in the last year for defense firms), manage second requests and other investigations on behalf of industry clients, and advise clients on the antitrust issues presented by proposed joint ventures and other collaborative arrangements.
In this major area of our practice, we work closely with clients to develop a full, fact-based “industrial capability” road map of the acquisition based on our industry knowledge and present it to the appropriate regulatory authorities. Because of our rate structure, we also offer clients an affordable option for managing man-hour-intensive second requests.
Ethics and Foreign Payments
In recent years, there has been a significant focus on improving business practices in the defense industry and other business sectors in light of the negotiation of the OECD Anti-Bribery Convention, the adoption of national implementing laws in various countries and specific, visible enforcement actions in the United States and elsewhere. We have represented firms on a broad range of issues arising under the Foreign Corrupt Practices Act and related laws, including the structuring of international joint ventures and other transactions (especially in emerging and transitional markets like Russia and China), the preparation of compliance programs and policies and corporate governance mechanisms, internal investigations, and due diligence in the context of acquisitions.
Firms in the aerospace, defense and homeland security industries are typically subject to a range of export control laws that materially affect their international sales, business operations and cooperative arrangements, including in particular the State Department’s International Traffic in Arms Regulations and the Commerce Department’s Export Administration Regulations. The firm’s attorneys have significant experience in this field and regularly advise and assist with the preparation of complex export licenses and technical assistance agreements; the application of U.S. export control laws to transactions (mergers, acquisitions and joint ventures), foreign arms sales and know-how transfers; internal investigations and voluntary disclosures to the State and Commerce Departments; enforcement matters, including negotiation of consent decrees with the U.S. government; and issues concerning foreign military sales. We regularly counsel clients on a range of challenging issues – from “deemed” exports and treatment of foreign nationals in the United States to brokering – and have assisted in the development and enhancement of compliance programs.
In recent years, the firm’s attorneys have handled major investigations and major compliance matters in the export control arena, including the full internal management review of a major U.S. defense firm and the licensing and compliance processes of a smaller U.S. defense firm, and whether such processes met appropriate metrics for organization, resources and minimizing compliance risks.
Our attorneys represent firms in the full range of procurement matters, including contractual negotiations and preparing responses to requests for proposal; protests before U.S. government agencies, including the General Accounting Office and the U.S. Court of Claims; extensive due diligence in the context of acquisitions; internal investigations on a range of issues (including False Claims Act matters and other federal laws and regulations); suspension, debarment and fraud proceedings; determining “commerciality” in government contracts; cost accounting issues; negotiating licensed rights agreements to protect the intellectual property rights of contractors and foreign governments; and preparing internal compliance programs and counseling on a wide range of issues relative to the Defense Industry Initiative. Our attorneys have experience in addressing questions of first impression and structuring novel business approaches to take advantage of recent acquisition reforms.
We provide clients with advice on the Patriot Act, other federal laws and regulations on homeland security, and proposed rules and emerging practices of the Department of Homeland Security (“DHS”) and other federal and state government entities in the field. Our lawyers recently prepared an analysis of the critical capabilities of a state government in the homeland security field as well as performance measures to assess whether these capabilities were in place and properly operating. We have also assisted on a number of unique issues in this area, including special rules on foreign ownership and participation in homeland security contracts. Our attorneys have a considerable understanding of DHS’s developing acquisition system.
Industrial Base Analysis & Strategic Planning
We have considerable experience in providing clients with analysis (non-legal) of the competitive industrial landscape in defense and homeland security markets and working to craft solutions for difficult “industrial base” challenges, including shaping requests for relief under Defense Department rules and policies; applying for assistance under Public Law 85-804; and assisting in the analysis and resolution of complex Buy American Act and Berry Amendment issues. We also provide advice on the privatization of defense firms and business assets in foreign countries and have assisted clients in strategic reviews of their international business operations and business development plans.
International Collaborative Arrangements
We regularly advise clients on structuring international agreements in the aerospace, defense and homeland security sector, ranging from teaming arrangements to joint ventures to broader strategic alliances. We help clients identify the appropriate model for their business needs, shape approaches to mitigate various risks in key areas (including governance, proprietary rights, and the like) and implement such arrangements. In this sector, our attorneys have participated in the development of some of the most cutting-edge collaborative arrangements of recent times.
Legislation; Appropriations; Project Funding
We monitoring and advise clients regularly on pending legislation and have assisted clients with issues in the legislative and appropriations process. We also assist clients in developing and implementing creative strategies to win business pursuits and obtain various types of grant, contractual and other funding for their projects, including working with the Defense Advanced Research Projects Agency and other Defense Department components.
National Security, Foreign Ownership and Industrial Security
Our attorneys have extensive experience with the range of national and industrial security issues that arise in structuring transactions in the aerospace, defense and homeland security industries. This includes reviewing foreign acquisitions of U.S. defense businesses under the Exon-Florio provision of the Defense Production Act and structuring foreign ownership and corporate governance arrangements under the Department of Defense National Industrial Security Program. We assist clients in identifying “national security” issues likely to emerge in the context of transactions, and we shape solutions. Over their careers, our attorneys have filed hundreds of Exon-Florio notices before the Committee on Foreign Investment in the United States and have participated in structuring some of the major foreign acquisitions of sensitive defense assets in recent years. We have deep experience in structuring proxies, special security agreements and other industrial security arrangements with the Defense Security Service.
Litigation & Internal Investigations
Our attorneys handle a range of complex litigation and arbitration matters for aerospace and defense firms. We have represented government contractors in proceedings before the U.S. Court of Federal Claims and other federal courts; we have advised clients in disputes arising out of government and commercial contracts; and we have settled major disputes with the U.S. Department of Justice and other departments and agencies, federal and state. Matters our attorneys have handled include grand jury and inspector general investigations relating to product substitutions; defective pricing; bribery and gratuities; and procurement integrity matters. We have also represented aerospace and defense firms in civil matters that include contract interpretation disputes, insurance coverage issues and prime/subcontractor disputes.
Mergers & Acquisitions
The firm regularly represents clients in the aerospace, defense, homeland security and nuclear fields in all phases of corporate acquisitions, including due diligence, negotiation of agreements, tax planning, regulatory clearances and the like. We can provide assistance "from cradle to grave,” drawing on our experience in these sectors to help firms evaluate targets of opportunity, structure legal arrangements and close transactions. In recent years, for example, we represented a major British nuclear energy firm in its acquisitions of commercial nuclear and government/defense businesses in the United States; represented a foreign defense firm in acquiring a minority interest in a U.S. space firm; and represented a major international defense contractor and naval shipbuilder in acquiring a U.S. defense services firm.
Drawing on Other Firm Practice Areas
We also provide advice to firms in this sector on a full range of environmental, intellectual property, tax, benefits and pensions, and other legal and business issues, drawing on the firm’s broader resources in these fields.
The firm’s practice group includes a number of members with prior government experience in the Departments of Defense, State and Commerce, as well as for Congress, on defense and intelligence matters and appropriations. The firm also works with a number of non-lawyer consultants who have broad experience in the aerospace, defense and homeland security sectors and who support our representations in various ways.
© 2013 Sutherland Asbill & Brennan LLP