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How Governmental Carrots and Sticks Impact Private Investment in Defense Tech and the Security Ecosystem

By Margaret A. Dale, Michael R. Hackett, Stephen Hibbard, William Komaroff, Timothy W. Mungovan, Dorothy Murray, Joshua M. Newville, Todd J. Ohlms, Robert Pommer, Seetha Ramachandran, Jonathan M. Weiss, Julia Alonzo, William D. Dalsen, Isaiah D. Anderson, James Anderson, Julia M. Ansanelli, Adam L. Deming, Adam Farbiarz, Reut N. Samuels & Hena M. Vora on May 2, 2024
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In response to rising geopolitical tensions – from the Middle East to the Taiwan Strait to the ongoing conflict in Ukraine –the Biden Administration is increasingly using economic incentives and sanctions to assist the United States’ foreign policy objectives or mitigate the risk of increased conflict.

Geopolitical risks primarily create financial instability by two paths:

  • First, governmental tools such as sanctions, asset freezing and controls on capital create financial uncertainty and risk. This path focuses on denying financial resources to a country or near state actor deemed hostile to U.S. or allied interests.
  • Second, the threat of conflict itself can disrupt supply chains as companies seek to protect themselves and their assets from becoming casualties of conflict. This can impact parties agnostic to, and unaligned in, a particular geopolitical conflict. Current examples include the diversion of 90% of shipping previously passing through the Red Sea and Suez Canal, the recent decision by numerous airlines to temporarily suspend service to multiple locations across the Middle East, and the impact on commercial fishing activity and related supply chains in the South China Sea as tensions simmer between China and the Philippines.

Because none of these conflicts are likely to end soon, asset managers should be on the look-out for how related governmental actions may affect investment decisions and increase regulatory risk. A review of recent actions, both in terms of carrots and sticks, is helpful to understand where future efforts may lie.

The Stick

With increased geopolitical instability, asset managers must be aware of potential government regulation and legislation as they make investment decisions. The Biden Administration’s current efforts are focused on China – specifically, limiting the transfer of technology to China that could be used by the Chinese military against the U.S. and its allies while ensuring the United States has a reliable supply chain of goods, especially semiconductors, should China make good on its threats to unify with Taiwan through force.

The CHIPS Act, a prominent example, funds US$52 billion into U.S. manufacturing of semiconductors. It is estimated that 90% of advanced chips designed by Apple, Broadcom and NVIDIA are manufactured by TSMC in Taiwan. A potential conflict between China and Taiwan, at a minimum, would disrupt the supply of those chips, and at worst, result in the outright destruction of the TSMC manufacturing facilities in such a conflict. According to Secretary of Commerce Raimondo, as a result of the CHIPS Act, the U.S. will manufacture 20% of the world’s most advanced logic chips in 2030 (up from 0% today). 

Secretary Raimondo has spoken about the importance of “deny[ing] China our most sophisticated technology.” The CHIPS Act forbids U.S. companies from selling certain semiconductor chips and equipment, and artificial intelligence technology to China. The Administration considers it “crystal clear” that such chips would be used to advance the Chinese military.

Increasingly focused on China, bipartisan Congressional efforts have focused on Tik Tok and its storage of Americans’ sensitive financial and personal data on servers in China. In addition, Treasury Secretary Yellen recently opened the door to higher U.S. tariffs on Chinese imports, especially those related to the Chinese overcapacities in green energy infrastructure, as well as potential sanctions on Chinese banks and companies if they aid Russian’s military in its ongoing invasion of Ukraine.

The Carrot

Equally important is for asset managers to be aware of where the government will incentivize innovation moving forward to mitigate geopolitical risk. Some of this innovation is logically in the defense space, but some touches on cybersecurity and societal goods more broadly.

In 2015, the Department of Defense launched an organization, the Defense Innovation Unit (DIU), focused on “accelerating the adoption of commercial and dual-use technology to solve operational challenges at speed and scale.” Headquartered in Mountain View, California, DIU (with additional offices in Austin, Boston, Chicago and in Northern Virginia) creates incentives to universities and private companies to create solutions in a plethora of areas, including artificial intelligence, cyber, energy, and machine learning.

Similarly, the Defense Manufacturing Community Support Program (DMCSP) makes long-term investments in facilities, workplace development, R&D and supports small businesses to strengthen the national security innovation ecosystem. Meanwhile, the Accelerate the Procurement and Fielding of Innovative Technologies (APFIT) program established by the National Defense Authorization Act of 2022 provided US$150 million in funding last year to small businesses and non-traditional defense contractors fielding technologies in designated criteria.

These are just three examples of the types of incentives the U.S. is using to encourage the development of technologies that might make a difference in future conflicts. Asset managers who are involved in defense, artificial intelligence, cybersecurity or energy should be aware of what government programs might be applicable to their investments and how to best leverage those programs.

We will continue to monitor developments as they relate to possible sanctions, regulations, and incentives from the government and their potential impact on asset managers. Given the number and nature of threatened or actual conflicts across the globe and given the actors involved in those challenges, there is no question that these developments on the world stage will impact managers’ investments decisions for the foreseeable future.

Read more of our Top Ten Regulatory and Litigation Risks for Private Funds in 2024.

Photo of Margaret A. Dale Margaret A. Dale

Margaret Dale is a versatile first-chair litigator who handles different types of complex business disputes for a wide variety of clients across many industries.

While her practice is diverse, she regularly handles privacy and data security matters, including regulatory investigations and class action…

Margaret Dale is a versatile first-chair litigator who handles different types of complex business disputes for a wide variety of clients across many industries.

While her practice is diverse, she regularly handles privacy and data security matters, including regulatory investigations and class action lawsuits stemming from data breaches. She also focuses on intellectual property, where she represents individual artists and arts-related organizations and museums. With respect to securities and corporate governance, Margaret handles SEC enforcement proceedings, shareholder and partnership disputes, stock option, warrant and preferred stock matters, escrow fights and Delaware 220 actions, as well as regulatory and internal investigations.

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Photo of Michael R. Hackett Michael R. Hackett

Michael R. Hackett is a partner in the Litigation Department and a member of the Asset Management Litigation practice. Mike is an experienced litigator and trial lawyer focused on sophisticated business disputes.

A significant portion of Mike’s practice concerns disputes and regulation involving…

Michael R. Hackett is a partner in the Litigation Department and a member of the Asset Management Litigation practice. Mike is an experienced litigator and trial lawyer focused on sophisticated business disputes.

A significant portion of Mike’s practice concerns disputes and regulation involving private funds, including private equity, venture capital, hedge, real estate and private credit funds, as well as other limited partnerships, where he regularly advises funds, fund sponsors, investment advisers and institutional and individual investors.

Mike’s experience representing private fund clients runs the gamut, from control contests within advisers, to disputes between limited partners and general partners, to representation of investment advisers in connection with regulatory examinations, investigations and enforcement matters. Mike also routinely represents fund sponsors and their portfolio companies, including in significant post-closing disputes.

In addition to his private funds practice, Mike represents public and private companies in a variety of complex commercial and securities litigation matters, including in the areas of corporate governance, fiduciary obligations, capital markets, financial services, and bankruptcy and insolvency.

Mike has been named a “Rising Star” by Massachusetts Super Lawyers, and was identified as an “associate to watch” by Chambers USA in 2017 and 2018.

During law school, Mike served as an intern judicial clerk to the Honorable William G. Young of the United States District Court for the District of Massachusetts.

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Photo of William Komaroff William Komaroff

Bill Komaroff is a partner in the Litigation Department and White Collar Practice Group. He has a nationwide federal practice focused on corporate defense and investigations, counseling and defending institutional and individual clients in connection with a broad array of complex government investigations…

Bill Komaroff is a partner in the Litigation Department and White Collar Practice Group. He has a nationwide federal practice focused on corporate defense and investigations, counseling and defending institutional and individual clients in connection with a broad array of complex government investigations, prosecutions and civil disputes.

Bill also has served as a member of the Criminal Justice Act Panel for the District Court for the Southern District of New York.

From 2003 to 2007, Bill served as an Assistant U.S. Attorney for the Southern District of New York and prosecuted tax fraud, money laundering, bank fraud, mail fraud and wire fraud cases, among others. He tried numerous cases to successful jury verdicts and argued cases before the Second Circuit Court of Appeals.

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Photo of Timothy W. Mungovan Timothy W. Mungovan

Tim Mungovan serves as chair of the Firm’s Litigation Department, co-head of Proskauer’s Commercial Litigation Practice Group and co-head of the Asset Management Litigation team. His practice is focused on solving complex business disputes in a variety of areas including securities, investment management…

Tim Mungovan serves as chair of the Firm’s Litigation Department, co-head of Proskauer’s Commercial Litigation Practice Group and co-head of the Asset Management Litigation team. His practice is focused on solving complex business disputes in a variety of areas including securities, investment management, corporate governance, fiduciary obligations, capital markets, financial services, bankruptcy and insolvency. A significant portion of Tim’s practice involves disputes and risk management for private investment funds (private equity, venture capital and hedge funds) and private credit vehicles.

Recently, Tim has been heavily involved in: representing the Financial Oversight and Management Board for Puerto Rico in litigation involving the restructuring of Puerto Rico’s finances; SEC investigations of advisers to private equity funds and venture funds; control contests within advisers to private equity and venture capital funds; debt restructuring disputes on behalf of private credit funds and business development companies (BDCs); and litigation on behalf of two publicly-listed biotech companies against a hedge fund manager and a venture fund manager, respectively.

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Photo of Dorothy Murray Dorothy Murray

Dorothy Murray is a partner in the Litigation Department specializing in investment and commercial dispute resolution. She supports clients across a wide range of sectors, including financial services, asset management/private equity, energy, telecoms, and maritime.

Dorothy represents clients in disputes arising from all…

Dorothy Murray is a partner in the Litigation Department specializing in investment and commercial dispute resolution. She supports clients across a wide range of sectors, including financial services, asset management/private equity, energy, telecoms, and maritime.

Dorothy represents clients in disputes arising from all aspects of their business, whether those disputes are post M&A, shareholder, employment, contractual, partnership or JV related.

Dorothy has experience managing litigation in common and civil law jurisdictions, and in commercial and investor state arbitration.  She is fluent with all the key divisions of the English High Courts and major arbitral institutional rules, including LCIA, ICC, LMAA, SCC, ISCID and UNICTRAL.  One of her particular interests is in the enforcement of arbitral awards.

In addition to representation in contentious matters, she uses her disputes experience to support clients at the transaction and pre‑action stages, working with companies and funds to identify, understand and mitigate personal and corporate liabilities and risks.

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Photo of Joshua M. Newville Joshua M. Newville

Joshua M. Newville is a partner in the Litigation Department in New York and a member of Proskauer’s White Collar Defense & Investigations Group and the Asset Management Litigation team.

Josh handles securities litigation, enforcement and regulatory matters, representing corporations and senior executives…

Joshua M. Newville is a partner in the Litigation Department in New York and a member of Proskauer’s White Collar Defense & Investigations Group and the Asset Management Litigation team.

Josh handles securities litigation, enforcement and regulatory matters, representing corporations and senior executives in civil and criminal investigations. In addition, Josh advises registered investment advisers and private fund managers on regulatory compliance, SEC exams and related risks.

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Photo of Todd J. Ohlms Todd J. Ohlms

Todd J. Ohlms is as a partner in the Litigation department and a member of the Asset Management Litigation Group. Todd has represented clients in business-critical litigation matters for over 25 years, and has tried several cases to verdict before juries and the…

Todd J. Ohlms is as a partner in the Litigation department and a member of the Asset Management Litigation Group. Todd has represented clients in business-critical litigation matters for over 25 years, and has tried several cases to verdict before juries and the bench. He has also participated in numerous arbitration proceedings, including counseling clients regarding disputes subject to international arbitration agreements.

Todd is often retained by private equity firms to counsel them and their portfolio companies on a wide range of matters and is frequently chosen to serve as outside general counsel to their portfolio companies. He also represents family offices in disputes related to their operating companies where sensitive and complex relationships often play as large a role in determining the result as the actual legal theories at issue.

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Photo of Robert Pommer Robert Pommer

Robert W. Pommer III is a partner in the Litigation Department and a member of Proskauer’s Securities Litigation, White Collar Defense & Investigations groups and the Asset Management Litigation team.

Bob’s practice focuses on a broad range of securities-related enforcement and compliance issues.

Robert W. Pommer III is a partner in the Litigation Department and a member of Proskauer’s Securities Litigation, White Collar Defense & Investigations groups and the Asset Management Litigation team.

Bob’s practice focuses on a broad range of securities-related enforcement and compliance issues. He represents private fund managers, financial institutions, public companies, and their senior executives in enforcement investigations and litigation conducted by the SEC, the U.S. Department of Justice, and other governmental entities and financial services regulators. He also conducts internal investigations and counsels investment advisers and public companies on regulatory compliance, corporate governance and other SEC-related issues.

Prior to his career in private practice, Bob served as Assistant Chief Litigation Counsel in the SEC’s Division of Enforcement for nine years. While there, he investigated and litigated several high-profile cases involving complex financial fraud and audit failures. Bob also worked on enforcement actions involving insider trading, investment adviser and broker-dealer issues, market manipulation and other violations of the federal securities laws.

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Photo of Seetha Ramachandran Seetha Ramachandran

Seetha Ramachandran is a partner in the Litigation Department.

She is a leading expert in anti-money laundering (AML), Bank Secrecy Act, economic sanctions and asset forfeiture matters. She represents banks, broker dealers, hedge funds, private equity funds, online payment companies, and individual executives…

Seetha Ramachandran is a partner in the Litigation Department.

She is a leading expert in anti-money laundering (AML), Bank Secrecy Act, economic sanctions and asset forfeiture matters. She represents banks, broker dealers, hedge funds, private equity funds, online payment companies, and individual executives and officers, in high stakes and sensitive matters. Her practice focuses on white collar and regulatory enforcement defense, internal investigations, and compliance counseling. In addition to her subject matter expertise, Seetha is an experienced trial and appellate lawyer, having conducted 10 criminal jury trials, argued 10 appeals before the U.S. Court of Appeals for the Second Circuit, and handled ancillary civil proceedings in forfeiture cases.

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Photo of Jonathan M. Weiss Jonathan M. Weiss

Jonathan Weiss is a partner in the Litigation Department. Jonathan represents both plaintiffs and defendants in a wide range of high-stakes litigation, including antitrust, class action, financial services, securities and other complex commercial litigation. Jonathan has won multiple noteworthy jury verdicts, including the…

Jonathan Weiss is a partner in the Litigation Department. Jonathan represents both plaintiffs and defendants in a wide range of high-stakes litigation, including antitrust, class action, financial services, securities and other complex commercial litigation. Jonathan has won multiple noteworthy jury verdicts, including the fourth largest jury award in the history of the State of Arizona (over $110 million), and has significant appellate experience briefing and arguing appeals in both state and federal courts across the nation.

Jonathan has been recognized as a “Rising Star” by Southern California Super Lawyers every year since 2011, and was recognized by Legal 500 U.S. in their 2015 leading lawyers in appellate litigation edition, noting his “incredibly dedicated” advocacy on behalf of his clients. Jonathan has also spent considerable time on pro bono matters, for which he has been honored by Public Counsel among other organizations.

In addition to his busy practice, Jonathan has taught courses on Ninth Circuit appellate advocacy throughout Southern California and has lectured at several universities nationally, including Harvard Law School, UCLA Law School, the University of Illinois and the University of Pittsburgh. Jonathan is also a member of the Pacific Council on International Policy.

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Photo of Julia Alonzo Julia Alonzo

Julia Alonzo is a senior counsel in the Litigation Department with a focus on securities and corporate governance litigation. She is experienced in complex securities and white collar litigation matters, including federal securities class actions, derivative lawsuits, internal investigations and federal white collar…

Julia Alonzo is a senior counsel in the Litigation Department with a focus on securities and corporate governance litigation. She is experienced in complex securities and white collar litigation matters, including federal securities class actions, derivative lawsuits, internal investigations and federal white collar defense.

Julia maintains an active pro bono practice, with a focus on immigration law, asylum and child welfare issues. In addition, she sits on the associate board of the Brooklyn Defender Services Family Defense Practice, which aims to provide interdisciplinary representation to low-income parents in Brooklyn Family Court.

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Photo of William D. Dalsen William D. Dalsen

Will Dalsen is an associate in the Litigation Department, practicing in the Patent Law, Intellectual Property, and Asset Management Litigation Groups.

Will practices in the area of complex intellectual property disputes, with a primary focus on patent infringement matters. He has litigated several…

Will Dalsen is an associate in the Litigation Department, practicing in the Patent Law, Intellectual Property, and Asset Management Litigation Groups.

Will practices in the area of complex intellectual property disputes, with a primary focus on patent infringement matters. He has litigated several high-profile patent infringement cases for some of the world’s leading technology companies, including Panasonic, Philips, Sony, Mitsubishi and Zenith Electronics.

His practice also includes complex commercial and securities litigation matters, in particular those involving private equity, venture capital and hedge funds. He has represented public and private corporations in contractual disputes, business tort cases, and government investigations. In addition, he advises funds, fund sponsors, investment advisers, and institutional and individual investors.

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Isaiah D. Anderson

Isaiah Anderson is an associate in the Litigation Department.

Isaiah Anderson earned his J.D. degree from New York University, where he was a Senior Executive Editor of the New York University Law Review, the Alumni Relations Committee Co-Chair for the Black Allied Law…

Isaiah Anderson is an associate in the Litigation Department.

Isaiah Anderson earned his J.D. degree from New York University, where he was a Senior Executive Editor of the New York University Law Review, the Alumni Relations Committee Co-Chair for the Black Allied Law Students Association (BALSA), the Community Chair for the Christian Legal Students Association (CLSA), and a member of the Asian-Pacific American Students Association (APALSA). While at NYU, he worked with the Center on Race, Inequality, and the Law on efforts to advocate for racial and economic justice.

Prior to law school, Isaiah worked as a litigation paralegal at another New York law firm, supporting two commercial litigation trial teams and working on several pro bono cases focused on education and immigration. At Proskauer, Isaiah continues to have an active pro bono practice and leverages his experience and studies in litigation for all his matters.

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Photo of James Anderson James Anderson

James Anderson is an attorney in the Litigation Department and a member of the firm’s Asset Management Litigation and Intellectual Property groups. Jim leverages his technological background and expertise to represent clients in sophisticated business and intellectual property disputes.

Jim has experience litigating…

James Anderson is an attorney in the Litigation Department and a member of the firm’s Asset Management Litigation and Intellectual Property groups. Jim leverages his technological background and expertise to represent clients in sophisticated business and intellectual property disputes.

Jim has experience litigating cases for clients in the technology, life sciences, and financial services industries, including a significant number of pharmaceutical, biotech, consumer electronics, and asset management clients. He has litigated cases in state and federal courts throughout the United States, as well as before the International Trade Commission and Patent Trial and Appeal Board.

In addition to his commercial litigation practice, Jim advises clients on intellectual property strategy spanning the full range of patent, trademark, and trade secret protections. He has developed and maintained intellectual property portfolios in a broad range of industries, including consumer products, medical devices, machining and fabrication equipment, and semiconductor devices. Jim is registered to practice before the United States Patent and Trademark Office.

Jim also maintains an active pro bono practice. He has been awarded for his work on behalf of victims of domestic violence and abuse.

Jim has a degree in Mechanical Engineering, with a concentration in energy, power, and fuel cell technologies, from the University of Connecticut. Prior to joining Proskauer, Jim served as a judicial intern in the U.S. District Court for the District of Connecticut and represented clients with the UConn Intellectual Property and Entrepreneurship Law Clinic.

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Photo of Julia M. Ansanelli Julia M. Ansanelli

Julia Ansanelli earned her bachelor’s degree from New York University and her J.D. from Touro Law Center, where she graduated as valedictorian of her division. During law school, she served as case note editor of the Touro Law Review and vice president of…

Julia Ansanelli earned her bachelor’s degree from New York University and her J.D. from Touro Law Center, where she graduated as valedictorian of her division. During law school, she served as case note editor of the Touro Law Review and vice president of Touro’s Latin American Law School Association. Julia also interned for the Honorable Magistrate Kathleen Tomlinson in the Eastern District of New York.

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Photo of Adam L. Deming Adam L. Deming

Adam Deming is an associate in the Litigation Department.

Read more about Adam L. Deming
Photo of Adam Farbiarz Adam Farbiarz

Adam Farbiarz is an associate in the Litigation Department.

Adam’s practice encompasses a wide range of complex commercial litigation and dispute resolution. He represents clients in corporate governance, securities, and M&A-related disputes. Adam has also litigated a number of highly technical contract performance…

Adam Farbiarz is an associate in the Litigation Department.

Adam’s practice encompasses a wide range of complex commercial litigation and dispute resolution. He represents clients in corporate governance, securities, and M&A-related disputes. Adam has also litigated a number of highly technical contract performance issues, including claims pertaining to the execution of a major construction project in Afghanistan, and the faulty implementation of a firmwide software build at a Fortune 200 company.

Before joining Proskauer, Adam founded and led a food service tech startup that continues to work with hundreds of restaurants in the New York City area and beyond.

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Photo of Reut N. Samuels Reut N. Samuels

Reut Samuels is an associate in the Litigation Department.

Read more about Reut N. Samuels
Photo of Hena M. Vora Hena M. Vora

Hena M. Vora is an associate in the Litigation Department and a member of the Asset Management Litigation practice. Her practice encompasses a range of complex civil and commercial litigation matters, including securities litigation and partnership disputes.

Hena has experience with various stages…

Hena M. Vora is an associate in the Litigation Department and a member of the Asset Management Litigation practice. Her practice encompasses a range of complex civil and commercial litigation matters, including securities litigation and partnership disputes.

Hena has experience with various stages of litigation, including pitching clients, coordinating discovery, drafting dispositive motions and trial memoranda, and preparing witnesses for depositions and trial. She also has experience conducting highly sensitive and confidential internal investigations.

Hena maintains an active pro bono practice and has been awarded for creating a partnership between Proskauer’s Boston office and Minds Matter Boston, through which she helps high school students from low-income backgrounds achieve college readiness and success.

Hena earned her J.D. from Emory University School of Law, where she received the Pro Bono Publico honor and a Transactional Law Certificate. In addition, she was a national competitor on the Moot Court Society and served as president of Emory’s South Asian Law Students Association. While at Emory, Hena served as judicial intern for Judge Denny Chin at the U.S. Court of Appeals for the Second Circuit.

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  • Posted in:
    Financial
  • Blog:
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  • Organization:
    Proskauer Rose LLP
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