Covington & Burling LLP operates as a limited liability partnership worldwide, with the practice in England and Wales conducted by an affiliated
limited liability multinational partnership, Covington & Burling LLP, which is formed under the laws of the State of Delaware in the United States
and authorized and regulated by the Solicitors Regulation Authority with registration number 77071..
David Fagan co-chairs the firm’s top ranked practices on cross-border investment and national security matters, including reviews conducted by the Committee on Foreign Investment in the United States (CFIUS), and data privacy and cybersecurity.
David has been recognized by Chambers USA and Chambers Global for his leading expertise on bet-the-company CFIUS matters and has received multiple accolades for his work in this area, including twice being named Dealmaker of the Year by The American Lawyer for 2016 and 2019. Clients laud him for providing “excellent advice,” “know[ing] everything there is to know about CFIUS” and being “extremely well regarded” by key regulators. (Chambers USA)
In the foreign investment and national security area, David is known for his work on matters requiring the mitigation of foreign ownership, control or influence (FOCI) under applicable national industrial security regulations, including for many of the world’s leading aerospace and defense firms, private equity firms, and sovereign investors, as well as telecommunications transactions that undergo a public safety, law enforcement, and national security review by the group of agencies known as “Team Telecom.”
David’s practice covers representations of both foreign and domestic companies before CFIUS and related national security regulators. The representations encompass matters in which the principal assets are in the United States, as well as those in which there is a smaller U.S. nexus but where solving for the CFIUS issues – including through proactive mitigation and carve-outs – is a critical path for the transaction. David is also routinely called upon to rescue transactions that have run into challenges in CFIUS, and to negotiate solutions with the U.S. government that protect national security interests, while preserving shareholder and U.S. business interests.
Reflecting his work on U.S.-China investment issues and his experience on complex U.S. national security matters intersecting with China, David is regularly engaged by multi-national companies, including the world’s leading technology companies, to advise on strategic legal projects, including supply chain matters, related to their positioning in the emerging competition between the U.S. and China. David also has testified before a congressional commission regarding U.S. national security, trade, and investment matters with China.
In the privacy and data security area, David has counseled companies on responding to some of the most sophisticated documented cyber-based attacks on their networks and information, including the largest documented infrastructure attacks, as well as data security incidents involving millions of affected consumers. He has been engaged by boards of directors of Fortune 500 companies to counsel them on cyber risk and to lead investigations into cyber attacks, and he has responded to investigations and enforcement actions from the Federal Trade Commission (FTC) and state attorneys general. David has also helped clients respond to ransomware attacks, insider theft, vendor breaches, hacktivists, state-sponsored attacks affecting personal data and trade secrets, and criminal organization attacks directed at stealing personal data, among other matters.
In addition, he routinely counsels clients on preparing for and responding to cyber-based attacks on their networks and information, enhancing their supply chain and product development practices, 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. He also frequently advises clients on transactional matters involving the transfer of personal data.
Representative CFIUS, FOCI, and Team Telecom Matters:
Advent International and Oberthur Technologies in securing CFIUS and FOCI approval for the $2.6 billion acquisition of the Identity and Security solutions business of Safran.
Altice in securing CFIUS and Team Telecom approvals for its $9.1 billion acquisition of Suddenlink and its $17.7 billion acquisition of Cablevision.
ASML in securing CFIUS approval of its $3.1 billion acquisition of Hermes Microvision.
BAE Systems in securing CFIUS and FOCI approval for multiple acquisitions, including its $300 million acquisition of the Intelligence Services Business of L-1 Identity Solutions and the $4.1 billion acquisition of Armor Holdings.
Brooks Automation in securing CFIUS approval for its $675 million divestiture of its Semiconductor Cryogenics Business to Atlas Copco.
Carlyle Group in securing CFIUS and FOCI approval on multiple matters, including its $8 billion acquisition of Veritas Technologies (with co-investment by GIC Private Limited).
CenturyLink in securing Team Telecom and FOCI approval of CenturyLink’s $34 billion merger with Level 3, and in securing CFIUS approval of the $2.2 billion sale of its Savvis Data Center business to BC Partners.
China Oceanwide in securing CFIUS approval for its nearly $1 billion acquisition of International Data Group and related funds transactions.
Creat Group in securing CFIUS approval for its $1.5 billion acquisition of Biotest AG.
Deutsche Telekom in securing CFIUS, Team Telecom, and FOCI approvals for the approximately $26 billion merger of T-Mobile with Sprint.
Elbit Systems of America in securing CFIUS and FOCI approval for multiple acquisitions, including its $350 million acquisition of Harris Corp. Night Vision Business.
General Electric in securing CFIUS approval for the $2.6 billion sale of its Industrial Solutions business division to ABB Verwaltungs Ltd.
Genworth Financial in securing CFIUS approval for the proposed acquisition by China Oceanwide, valued at $2.7 billion.
GKN in securing CFIUS and FOCI approval for the $11 billion takeover by Melrose Industries.
GlobalFoundries, a subsidiary of Mubadala Development Company, in securing CFIUS and FOCI approval for the $650 million sale of its Avera business to Marvell Technology, and in securing CFIUS and FOCI approval of its acquisition of the IBM Microelectronics Division, valued at more than $1 billion.
Intersil in securing CFIUS approval for its $3.2 billion acquisition by Renesas.
Lenovo in securing CFIUS approval for its $2.1 billion acquisition of the x86 Server Business from IBM.
Merck KGaA in securing CFIUS approval for its $6.5 billion acquisition of Versum Materials.
Midea Group in securing CFIUS approval for its $5 billion acquisition of KUKA Systems.
Nexen in securing CFIUS approval of its $15 billion acquisition by the China National Offshore Oil Corp.
NXP Semiconductor in securing CFIUS approval for its $2.7 billion sale of its Standard Products business (known as Nexperia) to JAC Capital and Wise Road Capital.
Qualcomm in securing CFIUS and Presidential orders blocking Broadcom’s $117 billion hostile takeover attempt via a proxy fight for the board.
Shell in securing CFIUS approval for the separation of the Motiva Joint Venture with Saudi Aramco.
Source Photonics in securing CFIUS approval for acquisition by consortium investors led by Asia IO.
Takata Corp. in securing CFIUS approval for the $1.6 billion acquisition of its airbag business by Key Safety Systems/Ningbo Joyson.
Tyco International in securing FOCI approval for its $16.5 billion merger with Johnson Controls.
WS Atkins in securing CFIUS and FOCI approval for its $2.75 billion acquisition by SNC Lavalin.
Representative Privacy, Data Security, and Cybersecurity Matters:
Advised the board of directors for a Fortune 500 company in the investigation and response to one of the largest documented cyber infrastructure attacks.
Advised a leading technology company on investigations and responses to advanced persistent threats, development of vulnerability disclosure policies, and development of information sharing programs.
Advised a service provider in the financial services industry on investigating and responding to one of the largest attacks on ATMs in U.S. history.
Advised multiple clients’ C-suites on developing supply chain practices to address government procurement requirements and competing laws and policies in the U.S. and China.
Advised a Fortune 500 industrial company in conducting table top exercises to test incident response procedures and in addressing vulnerability identification by U.S.-CERT.
Represented multiple Fortune 500 companies in connection with FTC and state attorney general investigations of data security practices, including various security breach incidents that have involved third-party hacker intrusions, data tape and laptop losses, inadvertent disclosures, and employee theft and data sales. These investigations have covered matters that range from the loss of more than 100,000 Social Security numbers to the disclosure of millions of bank account and credit card numbers.
Advised multiple communications service providers on compliance with law enforcement process requests for data and responding to leaks of information by Edward Snowden.
Represented multiple clients in governmental audits of their information security practices.
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