David Fagan’s practice covers national security law, international trade and investment, cybersecurity, and global privacy and data security. Mr. Fagan has represented clients before federal and state government agencies and Congress in connection with a range of issues, including regulatory approvals of international investments, national security-related criminal investigations, high-profile congressional investigations, cybersecurity matters, and federal and state regulatory and enforcement actions in the data security area.
On investment issues, Mr. Fagan has represented foreign and domestic clients in various industries (including defense, software, information technology, communications, energy, aviation, maritime transportation, ports, and biotechnology/pharmaceuticals) in securing the approval of the Committee on Foreign Investment in the United States (CFIUS), as well as in connection with ongoing compliance matters related to mitigation agreements with CFIUS. He also frequently handles matters related to the mitigation of foreign ownership, control or influence (FOCI) under applicable national industrial security regulations. Mr. Fagan also has testified before a Congressional commission regarding US national security, trade and investment matters with China.
In the privacy and data security area, Mr. Fagan counsels clients on preparing for and responding to cyber-based attacks on their networks and information, assessing their security controls and practices for the protection of data, developing and implementing information security programs, and complying with federal and state regulatory requirements, as well as on transactional matters involving the transfer of personal data. Mr. Fagan also has been counsel to companies in a range of cyber and data security incidents, including dozens of data security breach matters involving millions of affected consumers.
Mr. Fagan has written extensively on national security, foreign investment, data security, and cybersecurity matters, and is the author of the chapter on “The US Regulatory and Institutional Framework for FDI” in the book Investing in the United States: Is the US Ready for FDI from China?, a leading treatise on Chinese investment in the United States. Mr. Fagan also is an Adjunct Professor of Law at Georgetown University Law Center, teaching a seminar on “National Security Law and the Private Sector."
Representative CFIUS and FOCI Matters:
- Advanced Technology Investment Company -- Joint venture with Advanced Micro Devices to form GLOBALFOUNDRIES
- AOL -- sale of ICQ instant messaging business to Mail.ru
- British Telecommunications -- multiple acquisitions, including Infonet, Counterpane Internet Security, and Comsat International
- BAE Systems, Inc. -- multiple acquisitions, Armor Holdings, MTC Technologies, Atlantic Marine, and the Intelligence Services Group of L-1 Identity Solutions.
- Carlyle Group -- multiple transactions, including sale of Landmark and Standard Aero to Dubai Aerospace Enterprise
- Check Point Software Technologies -- multiple acquisitions, including NFR Security, PointSec Mobile Technologies, and security appliance business of Nokia
- China National Offshore Oil Corporation Ltd. - Separate investments in Eagle Ford and Niobrara shale properties held by Chesapeake Energy.
- CIC - Investment in AES Corp.
- Elbit Systems -- multiple acquisitions, including Tadiran Communications and M-7 Aerospace
- Enstrom Helicopter Corporation - Acquisition by Chongqing Helicopter Investment Co., Ltd.
- Global Crossing -- acquisition by ST Telemedia and proposed investment by Hutchison Whampoa
- IBM -- sale of PC division to Lenovo
- Mubadala Development Company -- Investment in Advanced Micro Devices
- Nexen - Acquisition by China National Offshore Oil Corporation Ltd.
- SABIC and GE -- sale of GE Plastics to SABIC
- Stanley, Inc. -- acquisition by CGI Group
- Statoil -- acquisition of Brigham Exploration
- Virgin Galactic -- investment by Aabar Investments
- Wanxiang America - Acquisition of certain assets of A123 Systems, Inc.
- CIA, political/leadership analyst on the Near East (1997-1998)
Honors and Rankings
- Law360, Rising Star - International Trade (2010)
- Chambers USA - America's Leading Business Lawyers, Privacy & Data Security (2009-2013) and International Trade: CFIUS Expert (2010-2013)
- Chambers Global, International Trade - CFIUS Experts (US) and Privacy & Data Security (US) (2012)
- Legal 500 US, Recognized for Litigation - International Trade (2013) Technology - Data Protection and Privacy (2010-2013)
- Washington DC Super Lawyers, "Rising Star" (2013)
- Washingtonian, National Security "Top Lawyer" (2013)
- Represent the widow of a deceased African-American farmer in the arbitration of her husband’s claim of discrimination against the U.S. Department of Agriculture, pursuant to the Pigford class consent decree.
Publications and Speeches
- On November 14, 2012, the U.S.-China Economic and Security Review Commission (USCC) released its annual report to Congress. The report quotes from Mr. Fagan’s June 2012 testimony on "The Evolving U.S.-China Trade and Investment Relationship."
- Mr. Fagan testified before the U.S.-China Economic and Security Review Commission on "The Evolving U.S.-China Trade and Investment Relationship" (6/14/2012).
- Mr. Fagan participated in an interview, "Covington Looks to ‘Demystify’ CFIUS in South Korea," with Main Justice on the review process for investments from Korea undertaken by the Committee on Foreign Investment in the United States (4/16/2012).
- Mr. Fagan participated in an interview with the International Financial Law Review on national security reviews for foreign investment in China (June 2011).