Aerospace, Defense and National Security

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With an experienced team of former government regulators, enforcers, elected officials, and agency heads, Covington offers aerospace, defense, and national security clients rare insight and practical advice to avoid pitfalls, solve problems, and seize opportunities.

Our work encompasses government contracts, trade controls and sanctions, CFIUS clearances for foreign investments, FOCI and industrial security issues, cybersecurity, public policy and government affairs, congressional investigations, and mergers and acquisitions.

CFIUS, FOCI, and “Team Telecom” Clearances

Covington has a preeminent practice advising U.S. and foreign companies and business associations on all aspects of the U.S. national security review process for foreign investments under the Exon-Florio amendment, as administered by CFIUS.

We have handled many of the biggest successful transactions in the aerospace and defense sectors requiring CFIUS review in the last several years. This includes:

high-stakes commercial investments requiring national security reviews by CFIUS;
applying for, retaining, and defending challenges to facility security clearances;
negotiating and implementing structures to mitigate and comply with the FOCI restrictions set forth in the National Industrial Security Program Operating Manual (NISPOM); and transactions involving high volumes of National Interest Determinations for contracts involving access to proscribed categories of information.

Data Privacy and Cybersecurity

Covington’s cybersecurity practice combines deep expertise developed at the highest levels of government with more than a decade of practical experience advising numerous Fortune 500 companies on cybersecurity risks.

Our cybersecurity practice is distinguished by two main factors:

our unsurpassed experience addressing the most sophisticated cybercrime confronting government and the private sector, and
the depth of support available to clients facing cybersecurity issues, from preparation and protection to incident response to defending claims and obtaining insurance recoveries for losses.

We have:

responded to sophisticated state-sponsored attacks on leading defense contractors and other companies with substantial intellectual property;
developed novel solutions to software development, supply chain, and information assurance concerns of the U.S. government with respect to foreign-owned software and IT companies;
obtained recovery for companies that have incurred several of the largest consumer-related data breaches ever disclosed; and led the most significant prosecutions of insider thefts of classified information in the last decade.

Government Contracts

Our team has decades of experience representing aerospace and defense companies, ranging from critically important matters of the largest defense contractors to fundamental government contracts issues for startups and smaller companies.

Our practice covers the full range of matters, including claims, audit disputes, bid protests, investigations, strategic compliance and intellectual property advice, and other matters. We help defense companies navigate the maze of specialized laws and regulations that apply to government contracting and to understand the opportunities available to them in the volatile government procurement environment.

We also defend government contractors in high-profile tort litigation, including “contractors on the battlefield” cases.

Clients rely on us to devise creative and successful legal strategies for defense companies that increase their competitiveness while protecting their ability to do business with the government.

Our core government contracts team combines years of government, in-house, and law firm experience, and includes former senior U.S. government officials whose knowledge of the inner workings of the government complements the years of industry experience that our practitioners bring to bear on behalf of clients.

Mergers and Acquisitions

Ranked among Corporate Board Member’s best corporate law firms in the United States, Covington represents companies in the aerospace, defense, and national security industries in public and private transactions worldwide.

Our M&A clients include Global 100 companies, private equity firms and investment banks as well as venture-backed companies who depend on our industry knowledge to support their formative transactions. We have particular expertise in regard to both government contracts transactions and assisting clients in navigating the CFIUS review process.

For our M&A work in the aerospace, defense, and national security industries, we form interdisciplinary teams of Covington lawyers who are well positioned to address all aspects of the deal. Lawyers in our regulatory and industry practices work alongside deal counsel to identify and evaluate legal risk associated with the regulatory environment, and to develop and negotiate structures to accomplish our client’s business objectives.

Public Policy

Covington is recognized as among the best government relations firms in the United States and Europe by Chambers and Partners, Legal 500 and The National Law Journal, where the firm ranks among the top five U.S. government affairs practices in its Influence 50 survey.

Our success helping clients through uniquely complex situations, where commercial interests are entangled with domestic politics and international policies, has earned us a reputation as global problem-solvers. Our “law-plus” approach to legal and regulatory issues includes carefully managing the larger political and business contexts surrounding them.

Covington’s roster of former government officials bring decades of experience in the U.S. Departments of Defense, Treasury, State, Commerce, Homeland Security, and Justice, the National Economic Council within the White House, and the Office of the U.S. Trade Representative.

Our team includes members of Congress who held positions of national security leadership in the Senate and the House as well as former staff members with Committees of jurisdiction such as the House Armed Services Committee.

Covington also represents corporations and individuals in congressional investigations. Our work spans the full scope of investigations—from discreet requests resolved with little public attention to some of the most high-profile and contentious investigations and oversight hearings for global companies.

Our clients include Fortune 100 and 500 companies, and we have prepared numerous CEOs and other senior corporate officers to testify before congressional oversight panels.

Trade Controls

Covington’s trade controls team is consistently ranked as a top practice by Legal 500 and Chambers and Partners, which has identified us as “the leading firm for export controls issues.”

Our team advises on all aspects of compliance with the International Traffic in Arms Regulations (ITAR) and the dual-use export controls of the Export Administration Regulations (EAR). We provide legal advice on the full range of advisory and enforcement matters involving U.S. and European defense trade controls, including compliance across various jurisdictions with export controls, economic sanctions, and antiboycott laws and regulations.

Our work includes:

establishing product/technology jurisdiction;
advising on the frequent changes in the scope and character of U.S. and European defense trade controls;
obtaining licensing and license agreements (e.g., Technical Assistance Agreements) for complex transactions;
advocating changes in regulatory programs and legislation;
establishing or bolstering internal compliance programs;
providing training; and
investigating, reporting, and navigating enforcement matters.

We also provide counsel on the nuclear export controls administered by the Department of Energy and Nuclear Regulatory Commission (NRC). We regularly interact with and appear before the key trade controls agencies, including the Directorate of Defense Trade Controls (DDTC) and the Bureau of Industry and Security (BIS).

We are also well-versed on treaties that have an impact on defense trade, including the Defense Trade Cooperation Treaties that the U.S. has signed with the United Kingdom and Australia, as well as the Arms Trade Treaty and the Convention on Cluster Munitions.

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Six-Year Dispute with DOJ Ends with Declination

Our client, a major aerospace manufacturer, was accused of misrepresenting key facts to a government agency, resulting in the agency's decision to move forward with a rocket launch that eventually failed. The client enlisted Covington’s representation in what ended up being a six-year, high-stakes dispute with DOJ. Our compelling presentation and mastery of the details bolstered our arguments, and DOJ ultimately advised it would not pursue a False Claims Act case against the company.

Case of first impression arising from an FMS contract

Represented a U.S. electronics manufacturer in federal trial and appellate courts against contract claims by a foreign sovereign government asserting third-party beneficiary rights under a Foreign Military Sales (FMS) contract. The case raised issues of first impression under the Contract Disputes Act and Arms Export Control Act (AECA).

Advised client of risk mitigation techniques during contract formation

Counseled a major defense contractor on how to mitigate potential future tort risk during contract discussions with the U.S. government. The military wanted the contractor to provide support for a significant anti-terrorism initiative, and the contractor needed advice on how best to structure the contract to minimize its risk and maximize its protection in the event of third-party claims arising from its contract performance.

Arms Export Control Act - third party beneficiary claims

Our client sold microchips under a U.S. Air Force Foreign Military Sales (FMS) transaction to a foreign ally’s defense ministry, in a “back-to-back” sale under the Arms Export Control Act (AECA), in which the Air Force purchased the microchips from our client and then sold them in turn to the foreign defense ministry. The foreign defense ministry then sought to present warranty claims directly against our client, claiming to be a third-party beneficiary under our client’s contract with the Air Force. We waged successful litigation in federal trial and appellate courts raising issues of first impression, which established that third-party beneficiary claims are not available, given the public policy and intent of the AECA.

Aerospace Company Recovers Defense Costs after Fraud Investigation

Search warrants executed simultaneously on both coasts triggered an aggressive investigation of alleged Cost Accounting Standards (CAS) violations. First, we persuaded the U.S. Attorney to terminate its criminal case. Next, we convinced the Department of Justice’s Civil Frauds division that the case had no merit. Finally, we obtained a dismissal on motion of a pending qui tam case. After winning on all fronts, the client was able to submit and recover allowable costs of defense, including legal fees.

Advising clients on the negotiation and performance of contracts with the Biomedical Advanced Research and Development Authority, the Defense Threat Reduction Agency, and the National Institutes of Health

Advised multiple clients on matters arising from their negotiation and performance of manufacturing and research and development contracts relating to various pandemic and Chemical, Biological, Radiological and Nuclear (CBRN) threats, including matters relating to government indemnification or liability protection for unusually hazardous risks, compliance with cost standards and principles, and protection of intellectual property.

High-level advocacy before the U.S. executive branch

A U.S. defense company faced stiff competition from a non-U.S. competitor in connection with the deployment of its technology in a NATO-member country, which was seeking a complementary commitment from the U.S. government. We conducted high-level advocacy in the United States, helping our client obtain the needed commitment to secure the transaction-a deal valued at about $5 billion.

Global regulatory and legislative support

A global air cargo company wanted to enhance its political influence as a respected industry voice on public policy issues in order to advance its global business objectives. We helped the company resolve difficult regulatory disputes in several countries, including a fast-moving dispute in China that endangered its business model. We also achieved legislative success for the company in the U.S. Congress on defense policy matters in the authorization bill (NDAA).

Successfully protested the terms of a $600 million cloud procurement

When the Central Intelligence Agency (CIA) issued an RFP for cloud services, we filed a protest challenging the terms of the RFP as unduly restrictive of competition. After discussion with the U.S. Government Accountability Office (GAO), the agency agreed to amend the RFP to revise the terms at issue in the protest.

Veritas Capital’s investment in Alion Science & Technology

Represented private equity firm Veritas Capital as regulatory counsel during its acquisition of Alion Science & Technology Corporation, a leading provider of engineering services to the Department of Defense. We handled government contracts, trade controls, and national industrial security due diligence.

Veritas Capital’s investment in SolAero Technologies Corp.

Represented private equity firm Veritas Capital as regulatory counsel during its acquisition of EMCORE’s Space Photovoltaics business, and represented the business, which is now known as SolAero Technologies Corp., during its subsequent acquisitions of Alliance Spacesystems and Vanguard Space Technologies. We handled government contracts, trade controls, anti-corruption, and other regulatory due diligence, and also assisted with contract novations.

Complex Procurement

A government entity needed to purchase a large number of military vehicles. The procurement required contractors and technology from several jurisdictions and a long-term supply arrangement. From international trade controls and U.S. and EU military sales advice to commercial terms, Covington provided strategic direction as we simultaneously ensured that the documents met local and international requirements.

Cutting-edge cost allowability victory

Successfully represented a major defense contractor, through trial and decision, in board of contract appeals litigation involving the allowability of private security costs allegedly incurred in connection with providing logistical support to the U.S. military during the Iraq War. The case raised cutting-edge cost allowability, contractor-on-the-battlefield, and statute of limitations issues.

Compliance program for a defense company

Developed a major defense company’s comprehensive export controls compliance best-practices manual covering a range of export control topics. We seconded one of our associates to the company’s core export compliance organization to work on this project, which required synthesizing existing company compliance material and standardizing export compliance practices across a diverse group of businesses.

Dismissal of wrongful death case based on government contractor defense

Obtained dismissal of a wrongful death case brought against a major government contractor for alleged gamma radiation exposure from a cargo screening device it manufactured for national security/border protection purposes. Early in the case, and only after minimal discovery, we successfully asserted the government contractor defense and convinced the trial court that the government had meaningfully reviewed and approved the product’s design specifications, that the product conformed with those specifications, and that the contractor had no knowledge of any product risks or hazards unknown to the government.

Dismissal of wartime wrongful death claims brought by contractor employees

Obtained dismissal of wrongful death claims against a military support contractor following an insurgent attack on a supply convoy in Iraq. After the district court refused to dismiss the case, we successfully brought an interlocutory appeal and persuaded the court of appeals that the Defense Base Act provided an exclusive remedy and barred the employee claims.

Dismissal of personal injury case involving military personnel

Persuaded a district court to dismiss a tort suit brought against a large logistical services contractor for injuries sustained by a soldier on a military base in Iraq. The district court and the court of appeals agreed that the case raised political questions because of the involvement of the military that were outside the scope of judicial review.

Addressing Regulatory Enforcement Actions

We have addressed regulatory investigations and enforcement actions from regulators in the United States, Europe, and Asia following data breaches. These have included investigations or formal enforcement proceedings brought by the Federal Trade Commission, State Attorneys General, and the Securities and Exchange Commission in the United States, and by data protection authorities and sector-specific regulators across Europe and Asia.

Internal investigations for an aircraft manufacturer

Led more than a dozen internal investigations for a military aircraft manufacturer, including drafting voluntary disclosures filed with the Departments of State and Commerce that were successfully resolved. Also developed export compliance plans for several of the company’s high-profile international projects.

Obtained SAFETY Act protection for anti-terror products and services

The SAFETY Act, administered by the U.S. Department of Homeland Security, provides liability protection to the makers and users of anti-terror technology in the event of a terror attack. We have successfully guided clients from virtually every major industry in the United States, including government contractors, airports, port authorities, chemical companies, large sports stadiums, and professional sports leagues, through the SAFETY Act application process and secured SAFETY Act protection for a wide range of technologies.

Lindsay Goldberg's transformation of PAE

Represented private equity firm Lindsay Goldberg and PAE as regulatory counsel in six different M&A transactions that have grown PAE to a defense contractor with annual revenue in excess of $2 billion. Our work began in 2011 with Lindsay Goldberg’s acquisition of PAE from Lockheed Martin, and continued through to PAE’s acquisitions of Defense Support Services, CSC’s Applied Technology Division, USIS’s Global Security and Solutions Business, and A-T Solutions and to Lindsay Goldberg’s 2016 sale of PAE to Platinum Equity. Our work in each of these deals has included government contracts, national security, trade controls, and anti-corruption due diligence and advice on transaction structuring, novations, and regulatory approvals.

Dismissal of Multidistrict Litigation Alleging Contractor Negligence Inside Overseas War Zones

Obtained complete dismissal of 63 lawsuits brought by 800-plus named plaintiffs against KBR, the largest military services contractor in Iraq and Afghanistan. These claims challenged KBR’s use of burn pits to dispose of waste during those wars. The district court adopted our arguments in their entirety and held the claims were barred by the political question doctrine and preempted based on the “combatant activities” exception to the Federal Tort Claims Act.

Magellan’s Acquisition of AFSC

Represented Magellan Health as regulatory counsel during its $117.5 million acquisition of Armed Forces Services Corporation (AFSC), a provider of behavioral health and specialty services to the Department of Defense and other U.S. government agencies. We handled government contracts and national security matters for Magellan.

TRICARE-Related Advocacy

We achieved a significant legislative victory for a major retail corporation when Congress passed the FY 2017 National Defense Authorization Act with new authorities to expand patients’ access to retail pharmacies. Our objective was to overcome the exclusion of chain and local pharmacies from providing brand maintenance drugs under TRICARE at the same rates available for prescriptions filled at military treatment facilities or through mail-order pharmacies, which caused significant losses to chain and local pharmacy businesses and limited beneficiaries’ access to retail pharmacies. Our efforts led to the inclusion of a pilot program allowing pharmacies to provide brand maintenance drugs to TRICARE beneficiaries. The bill passed with overwhelming support in both the House (375-34) and the Senate (92-7).

Successfully defended prime contractor in data rights lawsuit

We successfully defended a Navy prime contractor accused of misusing its subcontractor’s design data. We convinced the court that the Defense Federal Acquisition Regulation Supplement (DFARS) data rights clauses allowed the client to use and distribute the data, resulting in a complete summary judgment for our client.

Successfully defeated infringement suit in the Court of Federal Claims

One of our clients provides a key component of the F-35 Joint Strike Fighter. A rival contractor sued the U.S. government in the Court of Federal Claims, alleging that the component infringed its patent. We intervened on behalf of our client and persuaded the court to rule that the patent is invalid.

Successful representation of major defense IT contractor in GSA IG audit

Successfully represented a major defense IT contractor in an audit of two U.S. General Services Administration (GSA) Schedule contracts by the GSA Inspector General (IG), in which the IG initially asserted a claim for the repayment of tens of millions of dollars. The matter was resolved for less than $5,000.

Successfully protested $2 billion+ biodefense award

When the federal government awarded a contract worth more than $2 billion for the development and delivery of a medical countermeasure, we protested at the U.S. Government Accountability Office (GAO). After many rounds of briefing, and a hearing before GAO, the agency agreed to cancel and re-compete the majority of the contract.

Protection of Client IP Rights

For pharmaceutical, energy, and defense companies entering into R&D contracts, grants, and cooperative agreements with federal agencies (including DoD, DOE, and HHS), we have successfully developed and implemented strategies for protecting our clients’ intellectual property. We have helped our clients limit or avoid government IP rights through the use of alternative contracting vehicles, specially negotiated contract clauses, properly drafted statements of work, and other means. We have also obtained waivers of patent ownership from federal agencies, as well as waivers of the U.S. manufacturing requirements under the Bayh-Dole Act.

Responding to Sophisticated Advanced Persistent Theat ("APT") Attacks

We have directed the investigations and response into APT attacks from state-sponsored actors and sophisticated criminal groups targeting intellectual property and other proprietary information. These attacks, and the responses, have spanned multiple industries and global companies, with investigations covering four continents.

Successfully protested $200 million U.S. Army award

When the U.S. Army awarded a $200 million contract for IT services, we protested the award, arguing that the awardee had an organizational conflict of interest and gained an unfair competitive advantage by hiring a former government official. The agency took corrective action in response to the protest.

Successfully protested exclusion from $500 million+ biodefense competition

When the U.S. Department of Defense (DoD) conducted a competition for an Advanced Development and Manufacturing (ADM) facility for medical countermeasures, we protested DoD’s exclusion of one of the offerors from the competitive range. The protest issues were of extraordinary technical complexity, but after several rounds of briefing, we convinced the agency to reverse course and invite the offeror back into the competition.

Support of derivative sovereign immunity defense through Supreme Court amicus brief

Filed a Supreme Court amicus brief on behalf of a government contractor trade association in support of a U.S. Navy contractor being sued for unwanted text messaging. The proposed class action raised significant questions regarding the application of derivative sovereign immunity to private contractors performing work on behalf of the federal government.

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Thornberry Considering Punishing DoD for Moving Too Slowly on New Laws

Scott Freling spoke with the Federal News Network regarding the DoD’s hesitation towards implementing acquisition reforms and possible cuts to some defense agencies. Mr. Freling says, “The process for updating and refining the acquisition regulation to keep pace with Congress has slowed to a glacial pace. That causes quite a bit of consternation for contractors ...

Covington Represents Elbit in $350M Acquisition of Night Vision Business

WASHINGTON—Covington advised Elbit Systems of America, LLC, a subsidiary of Elbit Systems Ltd., in its definitive agreement with Harris Corporation for the acquisition of Harris' Night Vision business for a purchase price of $350 million. The closing of the transaction is subject to receipt of regulatory approvals. Elbit Systems Ltd. is an international high ...

DoD tightens enforcement of cyber regulations on contractors to protect data

Susan Cassidy and Ian Brekke are quoted in Federal News Network regarding the Department of Defense’s tightening of cybersecurity enforcement regulations on contractors. Ms. Cassidy says, “DoD wants to get everyone to a certain cybersecurity level. Now they are tightening up and they are going to make it a performance and award differentiator.” She said ...

Top Senate Armed Services Committee Counsel Joins Covington

WASHINGTON—Samantha Clark has joined Covington in its Public Policy, CFIUS, and Government Contracts practices in Washington. Ms. Clark’s arrival follows the recent additions of former U.S. Senator Jon Kyl and Broderick Johnson to the firm’s Public Policy practice. Ms. Clark provides advisory and advocacy support to clients facing policy, political, and ...

Commerce Requests Comment on Criteria for Identifying Emerging Technologies that Are Essential to U.S. National Security

On November 19, 2018, the U.S. Commerce Department’s Bureau of Industry and Security (“BIS”) released an Advance Notice of Proposed Rulemaking (“ANPRM”) requesting public comment on the criteria to identify emerging technologies essential to U.S. national security. The comments will inform the interagency process that was authorized under the Export Control ...

Covington Secures First SAFETY ACT Protections for Public Utility

WASHINGTON—Covington represented Public Service Enterprise Group and its subsidiary Public Service Electric & Gas in securing liability protection under the Support Anti-Terrorism by Fostering Effective Technologies Act of 2002 from the U.S. Department of Homeland Security. PSE&G is the first public utility in the United States to be awarded SAFETY Act ...

CFIUS Update: FIRRMA Enacted into Law

Earlier today, President Donald Trump signed into law the Foreign Investment Risk Review Modernization Act (FIRRMA) as part of the John S. McCain National Defense Authorization Act. As we have previously reported, FIRRMA will transform the jurisdiction, authority, and operation of the Committee on Foreign Investment in the United States (CFIUS). Our previous ...

U.S. drone-strike policy threatens to backfire as other nations acquire technology

Peter Lichtenbaum is quoted in a Washington Times article regarding U.S. policy on drone strikes. “We can set whatever rules we want, but we need to understand that we are setting a precedent, and other countries are watching very closely what we do,” says Lichtenbaum. “If we assert a certain prerogative, that will make it difficult for us to argue against other ...

Trump’s fluid approach to national and economic security is leaving his allies baffled

John Veroneau is quoted by The Washington Post in an article regarding potential tariffs on foreign cars. “While U.S. trading partners have been fairly measured in responding to the steel and aluminum tariffs, they will have no choice but to exhaust every option in opposing tariffs on autos,” says Veroneau. “Also, unlike steel and aluminum tariffs which hit U.S. ...

Covington Advises Elbit Systems in $120 Million Acquisition

WASHINGTON—Covington advised Elbit Systems Ltd. in its $120 million acquisition of the assets and operations of the privately owned U.S. company, Universal Avionics Systems. Elbit Systems is an international high technology company engaged in a wide range of defense, homeland security, and commercial programs throughout the world. Universal Avionics is a ...

President Trump Considering Global Tariffs and Quotas on Steel and Aluminum Products

On February 16, 2018, Secretary of Commerce Wilbur Ross announced the Department of Commerce’s recommendations in the ongoing national security investigations of steel and aluminum. These investigations were initiated in April 2017, pursuant to Section 232 of the Trade Expansion Act of 1962.

Wade Ackerman and Aaron Lewis Named Among LA's Most Influential Diverse Lawyers

LOS ANGELES—The Los Angeles Business Journal recognized Wade Ackerman and Aaron Lewis in its second annual list of the most influential diverse lawyers in Los Angeles. The list recognizes 50 "stellar diverse lawyers in the LA region." In Mr. Ackerman’s profile, the Business Journal emphasized his work in the FDA regulatory space. The profile noted that “with a ...

Leading CFIUS Risk Analyst Joins Covington

WASHINGTON—Brian Williams has joined Covington as a Senior Advisor in the firm’s Cross-Border Investment and National Security practice. Mr. Williams draws on over 20 years of public and private sector experience advising on issues at the intersection of national security, technology, and law. A non-lawyer, he led multi-agency analyst teams that authored the ...

Four Covington Partners Named Law360 MVPs

WASHINGTON—Law360 has named four Covington partners as MVPs in their respective practice areas. The awards single out lawyers from across numerous practice areas based on their success in high-stakes litigation, complex global matters, and record-breaking deals. The Covington lawyers recognized as Law360 MVPs are: Ray Biagini, Government Contracts. Mr. ...

Covington Advises CenturyLink in $34 Billion Acquisition of Level 3 Communications

WASHINGTON—Covington represented CenturyLink in its acquisition of Level 3 Communications in a cash and stock transaction valued at approximately $34 billion. The acquisition closed today. The firm assisted Century Link in obtaining regulatory approvals by the Federal Communications Commission and state public utilities regulators, and in national security ...

The Morning Risk Report: U.S., Saudis Announce Counter-Terrorism Financing Center

James Garland is quoted in The Wall Street Journal's "Morning Risk Report" regarding the announcement of the Terrorist Financing Targeting Center which will be co-chaired by the U.S. and Saudi Arabia. It's "hard to know whether this will amount to much," says Garland, noting no funds from existing programs will be diverted to support the center. He adds, ...

Administration Submits Notice of NAFTA Renegotiation

On May 18, 2017, newly confirmed U.S. Trade Representative Robert Lighthizer formally notified Congress that President Trump intends to renegotiate the North American Free Trade Agreement (NAFTA). The Trump Administration has indicated that it will request public input on the “direction, focus, and content” of these negotiations, and will publish notice in the ...

F-16 Fallout Clouds Future Foreign Deals, May Alter National Security

Peter Lichtenbaum and Fred Levy are quoted in a Federal Contracts Report article regarding the dispute, which is on appeal in the Fourth Circuit, between South Korea and BAE following the failure to finalize a deal to upgrade the F-16 jet. According to Lichtenbaum, the contracting community would expect the Fourth Circuit not to enforce the BAE-South Korea ...

Defense Contractors Should Have Shutdown Plan, Attorneys Say

Scott Freling is quoted in a Bloomberg BNA article discussing why defense contractors should prepare for a possible government shutdown. According to Freling, a certain amount of complacency, especially in the Washington area, has crept into companies regarding brinksmanship surrounding federal funding deadlines. “My sense is that contractors are refreshing ...

Trump Moves on Steel Under Section 232

On April 20, 2017, President Trump issued a memorandum announcing that the Secretary of Commerce had initiated an investigation to determine the effects of imported steel on national security. The investigation was initiated under Section 232 of the Trade Expansion Act of 1962, as amended. While it remains to be seen what actions the Administration might ...

4 Takeaways From The 'Buy American' Executive Order

President Donald Trump took a significant step this week toward implementing his often touted objective of protecting U.S. manufacturers and workers by signing the “Presidential Executive Order on Buy American and Hire American” on April 18, 2017. In addition to addressing reforms to the H1-B visa program to protect U.S. workers, the EO sets forth a policy and ...

Federal Contractors Bear Brunt Of 'Buy American' Crackdown

Fred Levy is quoted in a Law360 article regarding the effect of President Trump’s “Buy American, Hire American” Executive Order on federal contractors. Commenting on supply-chain adjustments made to items from overseas, Levy says, “If they change the Buy American Act to flow those requirements all the way back down again so it’s not just components, but any ...

Covington & Burling Adds Ex-Tyco Counsel In M&A Practice

Thomas Repke is quoted in a Law360 article regarding his arrival to the firm’s Mergers and Acquisitions practice. “This is an opportunity to share best practices, put the best teams together, which the firm is really conducive to,” Repke says. “Providing excellence in client service and that’s really the goal. Having been in-house for the past seven years, ...

China Seeks Public Comments on Draft Regulation of Cross-Border Data Transfer

On April 11, 2017, the Cyberspace Administration of China (“CAC”) released a draft of the Measures on Security Assessment of Cross-border Data Transfer of Personal Information and Important Data (“the Draft Measures”) for public comment (official Chinese version available here; Covington’s translation of the Draft Measures is appended at the end of this alert).

Covington Adds Senior M&A Partner

WASHINGTON—Thomas Repke, who has extensive M&A private practice and in-house experience, has joined Covington as a partner in its Mergers and Acquisitions practice in Washington. Most recently, Mr. Repke served as lead counsel for Tyco on all M&A, divestiture, joint venture, and investment transactions across all business units. While at Tyco, he helped ...

Wall to Mexico: Beautiful She Is, and Insurmountable

Jennifer Plitsch is quoted in a Die Zeit article regarding the Department of Homeland Security’s request for U.S.-Mexico border-wall prototypes. Commenting on the short time frame interested companies have to create a concept, Plitsch says, “The schedule is breathtakingly close.”

Covington Advises Intersil on $3.2 Billion Sale to Japan's Renesas

WASHINGTON—Covington represented semiconductor manufacturer Intersil Corporation in its $3.2 billion sale to Japan’s Renesas Electronics Corporation. The firm advised Intersil on aspects of the transaction involving Committee on Foreign Investment in the United States (CFIUS), Foreign Ownership, Control, or Influence (FOCI), trade controls, and government ...

Covington Adds Ex-Deputy Assistant AG To Appellate Group

Beth Brinkmann is quoted in a Law360 article regarding her recent arrival to Covington’s Appellate and Supreme Court Practice Group. According to Brinkmann, “The teamwork and collaboration at Covington is incredible and the strength of its appellate practice attracted me to the firm.”

January sees US law firms seek lateral talent

Beth Brinkmann and Robert Long are quoted in a Commercial Dispute Resolution article regarding Brinkmann’s arrival to Covington’s Appellate and Supreme Court Practice Group. Citing “Covington’s long history litigating important cases in the Supreme Court,” Brinkmann says she looks forward to the opportunity to help expand the appellate practice. According to ...

Deputy Assistant Attorney General Joins Covington

WASHINGTON—Beth Brinkmann has joined Covington as a partner in the firm’s Appellate and Supreme Court Practice Group in Washington. Ms. Brinkmann served as Deputy Assistant Attorney General in the Civil Division of the U.S. Department of Justice from 2009 to 2016. She has argued 24 cases before the Supreme Court of the United States. Ms. Brinkmann is an ...

Trump's Contracting By Twitter Likely To Backfire

Alan Pemberton is quoted in a Law360 article regarding President Trump’s use of Twitter to involve himself in the federal contracting process. According to Pemberton, "I'm not aware of a president doing quite what President Trump has done." He adds, "It's important to remember that the president certainly has considerable power in the bully pulpit, but ...

Lockheed Martin Facing Twin Pressures on F-35 Price

Sandy Hoe is quoted by The Wall Street Journal in an article regarding Donald Trump’s focus on the defense sector and his ability to negotiate military deals. According to Hoe, "The president doesn't have the authority just by fiat to negotiate a contract or the terms of a contract."

Trump Policies Could Drive Away Foreign Military Sales — Or Not, Experts Say

Peter Lichtenbaum was a panelist at the National Defense Industrial Association event “Reforming the Security Cooperation Enterprise” and is quoted in a National Defense article regarding the effect the Trump administration may have on foreign military sales. According to Lichtenbaum, it will take some determined efforts to educate the next administration on how ...

Six Covington Lawyers Named Law360 MVPs

WASHINGTON—Law360 has named six Covington lawyers as MVPs in their respective practice areas. The awards single out lawyers from across various practice areas based on their “success in high-stakes litigation, complex global matters, and record-breaking deals.” The Covington lawyers recognized as Law360 MVPs are: Shara Aranoff, International Trade. Ms. ...

Gov’t Contracts Policy Developments Of 2016: Year-In-Review

Jay Carey is quoted in a Law360 article providing a review of significant government contracts policy developments in 2016. Commenting on the 2017 National Defense Authorization Act, Carey says, “I think the provision that puts a thumb on the scale against using LPTA [the lowest price technically acceptable model] is important, and in the long run beneficial not ...

Gov't Contracts MVP: Covington & Burling's Jay Carey

Law360 selected Jay Carey as a 2016 Government Contracts MVP and profiled his involvement in a number of major bid protests by federal contractors in a variety of industries, such as UnitedHealth’s challenge to $58 billion Tricare contracts. According to Carey, “One of the things I really enjoy about it is that every protest is a challenge in terms of learning ...

U.S. Needs to Bolster Nuclear Arsenal and Missile Defense, Experts Say

Senator Jon Kyl participated in a panel at the Reagan National Security Forum and is quoted in a National Defense article regarding U.S. nuclear arsenal and missile defense. According to Kyl, the bill to upgrade the nuclear enterprise will be “massive.” “We’ve allowed it to atrophy and we’ve allowed a lot of obligations to pile up that should have been taken ...

Former Chief of Staff to the Deputy Secretary of Defense Joins Covington

WASHINGTON—Zachary Mears has joined Covington as a Senior Advisor in the Aerospace, Defense, and National Security industry group and the Public Policy and Government Affairs practice. Dr. Mears previously served as the Chief of Staff to the Deputy Secretary of Defense and Deputy Chief of Staff to the Secretary of Defense. He advised the Secretary and Deputy ...

DOD Updates Cyber Reporting Rule for Contractors

Susan Cassidy is quoted in a Federal Contracts Report article regarding the Defense Department’s updated cyber incident reporting rule. According to Cassidy, the rule succeeded in clarifying some industry concerns, but did not address them all. “They didn't take an opportunity to clarify everything you might have hoped they would.” For example, when asked ...

Covington Named China Law & Practice “Regulatory & Compliance Firm of the Year”

SHANGHAI—China Law & Practice has named Covington as “Regulatory & Compliance Firm of the Year” at its annual award ceremony. The leading Chinese legal publication also recognized Shanghai partner Eric Carlson as “Regulatory & Compliance Lawyer of the Year” and the firm for its role in the “Outbound Deal of the Year,” China National Tire & Rubber’s $7.8 billion ...

Aaron Lewis Among LA’s “Most Influential Minority Lawyers”

LOS ANGELES—The Los Angeles Business Journal has recognized Aaron Lewis as one of the “Most Influential Minority Lawyers” in Los Angeles. The inaugural list names 40 “stellar minority lawyers in the LA region,” highlighting recent success in their respective areas of practice. The Los Angeles Business Journal highlighted Mr. Lewis’s recent significant ...

After pushback last year, Pentagon tries again with commercial items rule

Susan Cassidy is quoted in an Inside Defense article regarding the DOD’s proposed rule change to implement sections of the National Defense Authorization Acts for Fiscal Years 2013 and 2016 relating to commercial item acquisitions. According to Cassidy, "They were going to take out the 'of a type' commercial item, and that's been a big deal with DOD for a long ...

The Morning Risk Report: Australia Sees Cybercrime, Money Laundering Link

Michael Chertoff is quoted in a Wall Street Journal article regarding the launch of Australia’s specialized cyber unit in response to increased money laundering efforts by hackers and other terrorists. According to Chertoff, the move by Australia reflects the reality that financial transactions are increasingly taking place outside the traditional financial ...

Data-centric Security: Risks and Emerging Threats in Government

Michael Chertoff appeared on Federal News Radio for a panel discussion on the current cybersecurity environment and the evolution of data-centric security. “What’s different now is because of modern data analytics, the ability to take huge volumes of data at enormous scale and then to be able to analyze and make use of that data is something that’s brand new.”

Covington's Brexit Task Force Provides Insights on Latest Developments

Our Brexit Task Force is staffed by senior lawyers and advisors across London, Brussels, and Washington to monitor events and to keep clients apprised of legal, regulatory, and policy developments. We are advising clients across a wide range of businesses and industries on the impact and implications of Brexit, including on strategic policy and regulatory ...

UK Votes to Leave the EU

The UK has voted to leave the European Union in an advisory referendum. 52% leave - 48% remain. Were the UK to leave the EU, this would have significant implications for the UK and for international businesses operating in the UK. The longer term impact of the decision on the regulatory framework for the UK will depend, in part, on the relationship that the UK ...

Proposed Legislation Targets Perceived Injustices in Defense Contract Protests

Hunter Bennett is quoted in a National Defense article regarding proposed legislation that would penalize contractors who challenge the government with frivolous protests to hold a job until the protest is settled. Bennett, wondering if these provisions “simply go too far,” write, “Clearly aimed at curbing the practice of incumbent contractors filing meritless ...

Protest reform ideas abound, but much of industry says, 'No, thanks'

Jay Carey is quoted in an Inside Defense article regarding the defense industry’s reaction to protest reform ideas being proposed by Capitol Hill and the Pentagon. According to Carey, the defense industry has a more “balanced view of protests.” “They're coming at it not only as a company that sometimes files protests, but as a company that wins awards and has ...

Senate defense policy bill would block GAO protests for task orders

Jay Carey is quoted in an Inside Defense article regarding the defense policy bill approved by the Senate Armed Services Committee which would block GAO protests for task orders. According to Carey, if the bill is passed, it would mean that there is "no effective oversight of task order awards -- which are now a huge part of the procurement process." He ...

Senate Defense Bid Protest Provision Concerns Contractors

Jay Carey is quoted in a Federal Contracts Report article regarding contractor concerns sparked by the Senate version of the National Defense Authorization Act (NDAA), which includes a “loser-pays” provision in bid protests. “I think contractors should be quite concerned” with the Senate version of the NDAA as it now stands, says Carey. “Protests are a critical ...

Thornberry predicts NDAA debate on contractor protest process

Jay Carey is quoted in this Inside Defense article discussing House Armed Services Committee Chairman Mac Thornberry’s expectation that lawmakers will debate proposals to reform the way defense contractors protest losing bids. Carey, disagreeing with Thornberry’s view, says it is inaccurate to characterize contractor protests as being out of control. “Some folks ...

Industry Mergers: DoD in Uphill Fight Against Market Forces

Scott Freling is quoted in this National Defense article exploring the DOJ and FTC joint statement on preserving competition in the defense industry. According to Freling, the interagency truce should “provide some comfort” to defense contractors that mergers and acquisitions can go forward, albeit “under the right circumstances.” Brown adds, the statement ...

DC judge overstepped in rejecting Fokker DPA, appeal court says

Steven Fagell is quoted in this GIR article regarding a recent Court of Appeals decision that a lower court overstepped its authority by rejecting a DOJ settlement with Dutch aerospace company Fokker. According to Fagell, “The ruling will likely clip the wings of any US district judge looking to second-guess the Justice Department's charging decisions in ...

Mark Plotkin and David Fagan Named “Dealmakers of the Year” by The American Lawyer

WASHINGTON, DC - The American Lawyer has named Covington partners Mark Plotkin and David Fagan as “Dealmakers of the Year.” The annual feature showcases “the lawyers behind the most significant work” in dealmaking. In its profile of Mr. Plotkin and Mr. Fagan in the magazine’s April 2016 issue, The American Lawyer praises the pair’s strategy that steered ...

Leading Government Contracts Lawyer Joins Covington

WASHINGTON, DC - Peter Hutt II has joined Covington as a partner in the Government Contracts practice. “Further enhancing Covington’s standing within the defense community as a leader in the False Claims Act and government cost accounting standards fields remains a key priority for the firm,” said Jennifer Plitsch, co-chair of the firm’s Government Contracts ...

Defense Leaders to Discuss Next Steps in Private Sector Outreach

Peter Lichtenbaum is quoted in this National Defense Magazine blog post discussing the push by the Pentagon to attract innovative technology firms and to create new business relationships with the commercial tech sector. Although conversations between government officials and tech leaders are occurring, there are some doubts about the future success of these ...

Pentagon acquisition reform can save lives, experts say

Co-chair of both the International Trade and Finance practice and Aerospace and Defense Industry Group Peter Lichtenbaum discusses the Pentagon’s defense acquisition reform to ensure more efficient transfer of technology to the armed services. Lichtenbaum stresses the importance by saying that in the past decade of war, American lives were needlessly lost ...

Crash Leaves Lufthansa Wide Open to U.S. Litigation

Covington's Dan Suleiman, who was Asiana Airlines Inc.’s lead litigator in the National Transportation Safety Board’s investigation of the July 2013 crash at San Francisco International Airport, is quoted: "The facts, once they’re clear, could support wrongful death or negligence claims but a settlement is the most likely outcome, said Daniel Suleiman, ...

The FAA is completely confused about what constitutes “commercial” drone use

Covington's Brian Smith is quoted regarding commercial drone use: The broad definition of “commercial” in the context of drone flying likely has a lot to do with the confusion as well. “The FAA has traditionally adopted a very broad view of activities that constitute commercial operations,” says lawyer Brian D. Smith of Covington & Burling LLP. “In short, ...

Covington Co-Hosts Program on Cyber Espionage

WASHINGTON, DC, September 27, 2013 — Covington & Burling and George Washington University’s Cybersecurity Initiative yesterday co-hosted a program that examined the growing threat of economic and cyber espionage and the need to protect trade secrets. In conjunction with the event, Covington and GW’s Cybersecurity Initiative released an issue brief on the legal ...

Congressional Leader Howard Berman Joins Covington

WASHINGTON, DC, March 14, 2013 — Congressman Howard Berman, a widely respected leader in the U.S. Congress, is joining Covington & Burling’s global public policy and government affairs practice. The addition of Rep. Berman, the former chairman of the House Foreign Affairs Committee, comes a week after Sen. Jon Kyl joined Covington’s public policy and government ...

Senator Jon Kyl Joins Covington

WASHINGTON, DC, March 6, 2013 — Senator Jon Kyl, who recently left Congress as the second-highest ranking Republican in the U.S. Senate, is joining Covington & Burling’s global public policy and government affairs practice. “Senator Kyl’s deep knowledge and extraordinary legislative skills from his years as a senior leader in Congress make him ideally suited to ...

Susan Cassidy Joins Covington’s Expanding Government Contracts Practice

WASHINGTON, DC, July 2, 2012 — Covington & Burling is bolstering its government contracts practice by adding Susan Cassidy as a partner in its Washington, D.C. office. This marks Covington’s second high-profile addition to its government contracts practice in recent months and underscores the firm’s strong commitment to expand in this area of law. Robert Nichols ...

Washingtonian Names 34 Covington Attorneys ‘Best Lawyers’

WASHINGTON, DC, November 30, 2011 — Washingtonian magazine has named 34 Covington & Burling attorneys as “Best Lawyers” in its December issue. The biennial list, compiled by the magazine’s editorial staff, identifies leading lawyers in the Washington area. Of the approximately 800 “Best Lawyers” identified in the issue, Washingtonian included profiles of 31 ...

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Covington Advises Elbit Systems in $120 Million Acquisition

Jon Kyl Returns to Covington

Top Senate Armed Services Committee Counsel Joins Covington

Covington Named “Dealmakers of the Year” by The American Lawyer