Representative Matters

Some Examples of Representative Matters:

• Counsel for the acquisition of the assets of a Somalia company that provided support to a number of international organizations. Conducted extensive due diligence on key personnel, including interviews, investigation, review of UN, OFAC and other records, drafting of consulting agreements including extensive FCPA compliance provisions, drafting of all transaction documents, including asset purchase agreement and transition services agreement, conduct of due diligence with legacy workforce to ensure procedures were compliant with FCPA.  Special escrow provisions were used to address the fact that certain assets were geographically isolated and could not be inspected or be available pre-closing due to actions of enemy/terrorist forces.  Also took steps to minimize the disruption on the transaction caused by two other terrorist attacks.

 

• Counsel for the sale of a line of business, including export-controlled software assets, to a foreign company. Drafted all transaction documents, including the asset purchase agreement and transition services agreement. Ensured export control requirements were met.

 

• Counsel to one of the 5 largest defense contractors on issues related to the complex structuring of a foreign defense company being established in fulfillment of an offset obligation.

 

• Counsel on a number of complex financial structured transactions leveraging the Foreign Military Sale (FMS) process for the sale of defense articles to a foreign country. Sales ranged from several hundred million dollars to multi-billion-dollar sales.

 

• Counsel to one of the 5 largest defense contractors on complex issues related to the sale of fighter aircraft to a foreign country.

 

• Served as Federal Monitor for a defense contractor convicted of engaging in export controls violations. Ensured the contractor adhered to its Administrative Compliance Agreement, which ultimately resulted in the rehabilitation of the contractor. Being able to use on your Android device was a real breakthrough for many online traders. Conducted training of workforce, monitoring of hotline, and inspections of workplace, and submitted periodic reports.

 

Representative Engagements

Korea F-35 Foreign Military Sales (FMS) Letter of Offer and Acceptance

Due to differences in Korean government procurement law and U.S. government Foreign Military Sales (FMS) policy, it appeared that the U.S. government would not be able to make an offer the F-35 fighter to the Republic of Korea in response to its Request for Proposals for its fighter competition.  Following discussions with his Korean counterparts, Derek drafted some language for the FMS Letter of Offer and Acceptance that addressed Korean concerns while still being consistent with U.S. law and policy. Further, Derek developed a strategy to enable FMS offers to participate effectively in competitions.  As a result, the F-35 could be offered, and it was ultimately selected by the Government of the Republic of Korea. Additionally, the strategy developed by Derek became the standard approach to enable FMS offers to participate in competitions in other countries.

 

Deferred Payment Plan for an F-35 Purchase

A country required a complex financing structure in order to be able to leverage its buying power using U.S. government Foreign Military Financing (FMF) grants in order to be able to purchase the F-35 fighter.  Derek worked to get White House approval of the offer to the country’s government, provided an opinion on the interpretation of certain law that was essential to the transaction, and worked with the contractor, the contractor’s outside counsel, bank counsel, and the country’s government, providing the leadership necessary to achieve timely completion of the transaction.

 

Kingdom of Saudi Arabia F-15 Purchase – Largest FMS Purchase in History

The Kingdom of Saudi Arabia was interested in making a very substantial ($29 billion) purchase from the United States through the FMS process.   Careful negotiation by the U.S. team, including Derek, was required in order to achieve success.  This included negotiations by very senior members of the U.S. government with the King of Saudi Arabia and his immediate advisors.  Derek, together with the Deputy General Counsel of the Department of Defense and the Under Secretary for Policy, crafted language – on a very exceptional “one time” basis.  This language was critical to obtaining the Saudi agreement to purchase the aircraft, weapons, and related items and services.

 

Interim Rule on Offsets for DFARS

Aerospace and defense contractors were very frustrated with the Defense Federal Acquisition Regulation Supplement (DFARS) rules that had the effect of requiring U.S. government Contracting Officers to determine the reasonableness of the cost of offsets that were included in Foreign Military Sales (FMS) Letters of Offer and Acceptance (LOAs).  At the same time, certain elements within the U.S. government were concerned that offset costs were being inflated by contractors.  Both sides were pushing for change, but in diametrically opposed directions.  Derek therefore established a DoD Offsets Working Group, which included representatives from the 3 Military Departments, as well as all interested defense agencies. Interested U.S. government departments other than DoD were also invited to participate.  Additionally, industry association representatives were invited to provide their input to the group.  Each Military Department or Agency within the group was asked to develop position papers based considering various options to the address the offset option.  Derek sent a questionnaire to foreign governments to elicit their input, and also had the group conduct historical research, and consider industry input when developing options.  Eventually, the Under Secretary for Acquisition, Technology, and Logistics decided to form a senior level working group for the issue, and Derek became a legal advisor to the group (along with the senior contracting lawyer for the entire Department of Defense).  Together, they drafted an interim rule for the DFARS designed to address both industry and DoD concerns.

 

European Commission Interpretation of Directive on Defense and Security Procurement 2009/81/EC

The European Commission of the European Union was considering the implementing guidance it should issue for the Directive on Defence and Security Procurement 2009/81/EC (the “Directive on Defence Procurement”).  A number of actors within the European Union and within the European Commission were pushing for guidance that would have the effect of significantly limiting FMS purchases by European Union Member States.  Derek met with the European Commission Director General for Public Procurement and provided him with supporting papers and analysis indicating FMS offers could effectively participate in competitions and that, when subcontracting was taken into account, defense trade was, to a large extent, reciprocal.  Derek subsequently supported the Under Secretary for Acquisition, Technology and Logistics’ designated representative at a meeting of European Union senior defense acquisition representatives in Latvia at which all European Union Member States took positions supportive of, or complementary to, the U.S. view.  As a result of these efforts, the European Commission decided not to issue guidance that would adversely affect FMS purchases.

 

U.S. Government Unmanned Aerial System (UAS) Export Policy and the Arms Trade Treaty

Derek was senior DoD counsel for the drafting and development of the U.S. government policy on the export of Unmanned Aerial Systems.  As such, he made a number of important contributions to the policy.  Derek was also a major contributor to the U.S. position during the negotiation of the United Nations Arms Trade Treaty.  In particular, Derek provided support to the legal negotiating team to ensure that the agreed text would not impose additional burdens upon the United States and did not impinge upon Second Amendment rights, as the United States has the “gold standard” with regard to export control systems.

 

Japan F-35 Export Policy

In the context of the F-35 global logistics system, Derek negotiated with Japan an arrangement in which Japan would agree to relax to an extent its restrictions on defense exports in return for such exports being subject to U.S. export controls, including restrictions on end-use and end-use monitoring.  This was the first significant relaxation of Japan’s defense export policy since the end of World War II.

 

US – Russia Afghanistan Air Transit Agreement

Derek served as U.S. government counsel for the delegation negotiating one of the deliverables for the 2009 U.S.-Russia “Reset” Summit.  His delegation was responsible for negotiating an agreement that would allow U.S. Air Force transport aircraft (both Air Force owned and chartered) to fly through Russian airspace to deliver troops and cargo to Afghanistan. The negotiations were contentious and required creative thinking and problem-solving.  The Presidents of both countries were personally interested in the outcome of the negotiations.  The agreement was completed in time for the Summit as a result of a series of intense negotiations in Moscow, and ultimately in excess of 195,000 U.S. troops are estimated to have flown through Russian airspace to and from Afghanistan.

 

Joint Strike Fighter Production, Sustainment, and Follow-on Development MOU (JSF PSFD MOU) and Associated Agreements and Arrangements

Derek was counsel for the negotiation of the 9-country JSF PSFD MOU.  A complex multilateral document that forms the backbone for the F-35 international partnership, a program estimated at over $1 trillion over 45 years.  Derek was also counsel for a number of the bilateral agreements under the MOU, and for some of the multilateral implementing arrangements.  In particular, Derek was deeply involved in the development and negotiation of the FMS policy that pertains to the F-35 program. This policy is more complex than the standard FMS policy due to the significant international component in the F-35 program.

 

Iraqi Economic and Business Law Reform

Derek was Chief of Commercial Law Reform for the Coalition Provisional Authority in Iraq.  In this capacity, he supervised a team of 19 lawyers who, consistent with UN Security Council Resolutions, drafted laws or amendments to laws to enable Iraq to transition from a planned to a modern market economy.  The drafts were coordinated with the World Bank, the IMF, and the 3 main Coalition governments, translated into Arabic and coordinated with the Iraqi Governing Council.  Ultimately 30 laws were enacted affecting every aspect of the Iraqi economy – including the Company Law, the Tax Law, the Banking Law, the Anti-Money Laundering Law, the National Budget Law, and the Central Bank law, to name a few.  The laws are still in effect in Iraq, with the result that the Iraqi private sector has grown from only a few hundred private companies to over 70,000 private companies.

 

All Security Cooperation-related legislation from FY2007 through FY2012 and much of it from FY2013 – FY2015

Derek provided substantive legal review or was a principal drafter of all Security Cooperation-related legislation in the annual National Defense Authorization Acts, Department of Defense Appropriations Acts, and Department of State, Foreign Operations, and Related Programs Appropriations Acts from Fiscal Year 2007 through Fiscal Year 2012 and much of that legislation from Fiscal Years 2013 through 2015.  Derek also reviewed or was a principal author of a number of pieces of stand-alone legislation during these periods.  Derek briefed and answered questions of the congressional staff of the Senate and House Armed Services Committees, Defense Appropriations Subcommittees, Intelligence Committees, Foreign Relations Appropriations Subcommittees, as well as the Senate Foreign Relations Committee and the House Foreign Affairs Committee on numerous occasions.  He also briefed and answered questions of staff of individual Members of Congress, and on occasion, the Members themselves.  Additionally, Derek has participated in the drafting of a number of Executive Orders.