Foreign Ownership, Control, or Influence (FOCI)
Leveraging a sophisticated understanding of U.S. industrial security policy and U.S. foreign policy, Fluet attorneys advise cleared U.S. companies and foreign investors and acquirers on the process by which the foreign ownership, control, or influence (FOCI) of investors and acquirers can be mitigated for the target company’s clearance to be preserved. Doing so requires an agility with U.S. laws and regulations, a deep familiarity with processes overseen by the Defense Counterintelligence and Security Agency, and the ability to negotiate complex outcomes that are acceptable to the target company, the investor/acquirer, and the U.S. Government.
Fluet provides comprehensive FOCI mitigation services through:
- Evaluation of investments, acquisitions, and other commercial transactions for FOCI and identify the FOCI mitigation requirements.
- Development of a comprehensive FOCI mitigation strategy, including the evaluation of the appropriate FOCI mitigation instrument.
- Drafting “Commitment Letter” packages that outline DCSA the FOCI mitigation strategy adopted by the cleared company and its foreign counterpart.
- Development of board resolutions, Special Security Agreements, Security Control Agreements, Proxy Agreements, and Voting Trust Agreements.
- Negotiation of novel FOCI mitigation instruments with DCSA.
- Development of “supplemental documents,” such as Affiliated Operations Plans, Technology Control Plans, Electronic Communication Plans, and Facilities Location Plans.
- Evaluation of the target companies’ compliance with DCSA’s FOCI mitigation requirements.
- Advisement of outside directors, proxy holders, and voting trustees on their obligations to DCSA and the foreign investor/acquirer.
- Development of directed and voluntary disclosures of FOCI mitigation violations.