Ken Nunnenkamp represents and assists clients in international trade, national security and related matters before US government agencies, including the US Departments of State, Commerce, Homeland Security, Defense and Treasury and in federal courts. His practice encompasses internal investigations and disclosures (voluntary disclosures and responding to government demands); federal court defense against government actions; compliance counseling and training; transactional due diligence (including both domestic and cross-border transactions) and statutory submissions to US government agencies.
Ken lectures regularly on CFIUS, export investigations and export control and compliance issues. He is an author of numerous articles and book chapters, and serves as a resource for general and industry publications regarding export, economic, and national security issues. Ken served in the Marines as a JAG officer and represents veterans pro bono before the Board of Veterans Appeals, the US Court of Appeals for Veterans Claims, the Federal Circuit and various military discharge review boards.
Ken’s internal investigations practice includes the complete conduct of internal investigations into actual or potential compliance issues arising under the International Traffic in Arms Regulations (ITAR), Export Administration Regulations (EAR), Office of Foreign Assets Controls Regulations, US Customs Regulations and Foreign Trade Regulations. His investigative expertise includes all aspects of internal investigations (i.e., fact gathering, witness interviews, Board of Directors counseling,preparation of reports for submission to US government agencies, and settlement of enforcement actions) reflecting three decades of litigation and investigation experience in trade regulation, Foreign Corrupt Practices Act matters and intellectual property. The hallmark of Ken’s investigation practice has been, and continues to be, the ability to provide comprehensive investigation management and execution, from the preparation of the investigation plan, to the preparation, filing and resolution of voluntary and directed disclosures, US government investigations and subpoenas related to export and import matters. Ken has represented and assisted clients with the voluntary disclosure process (including resolution and negotiation of settlements) for export and import violations before the US Departments of State, Commerce, Treasury and Homeland Security (including Customs and Border Patrol).
With significant US federal court litigation experience in district and circuit courts across the country, Ken represents clients in civil enforcement matters brought by US government agencies and works with criminal counsel when those matters involve criminal stakes. Ken’s litigation experience was developed representing clients in civil litigation and trials in administrative trials and appeals, and in various US courts in international trade, intellectual property and related civil matters. He has litigated matters before the International Trade Commission, US district courts and other US administrative agencies. That experience allows Ken to provide comprehensive assistance to clients facing trade and national security enforcement actions on multiple fronts, from agencies that may include the US Departments of Justice, Homeland Security, Federal Aviation Administration and Customs.
Ken has helped numerous clients establish, or improve, trade and sanctions compliance programs. Companies of all sizes require effective trade compliance policies and procedures. The need to create export management programs may arise following transactions, as part of a corrective action plan or as companies expand their global footprint. Companies with existing compliance programs often require qualified reviews of their export management systems. The need to continuously monitor a compliance program requires regular assessments and/or audits. The decision to review or audit a program may arise for a variety of reasons, including compliance corrective actions, business changes and acquisitions and divestitures. Ken has both created and audited company export management systems, small and large. Working with clients to understand their business scope and needs, Ken has tailored export compliance programs of all sizes over the years.
Ken has extensive experience, working with transaction counsel, handling trade due diligence and preparing transactions for review by the Committee on Foreign Investments in the United States (CFIUS). Trade due diligence requires an assessment and examination of often latent issues. Today’s dynamic, fast-paced transactions require experienced counsel capable of quickly identifying potential problems and pitfalls. Working with both buyers and sellers, Ken has participated in hundreds of transactions ranging from a few million dollars to billions of dollars, for clients that are both public and private. These transactions require an ability to quickly identify and assess potential transactional risks, and devise transaction protections for the client that are appropriate to the situation.
In today’s regulatory climate, companies can be required to provide information to a variety of US government agencies. Often, these requests involve industrial and trade information that companies, even public companies, do not routinely release to the public. Understanding and navigating these requests can be challenging. But failing to respond can sometimes be costly, as various statutes provide subpoena authority for the agency information collections, and failing to respond can result in uncomfortable results. Understanding how these statutes and regulations work, Ken has aided companies with responses to various Executive and Congressional information requests and filings, including those under section 332(g) of the Tariff Act, BE-13 filings with the US Department of Commerce, or ITAR registrations and 122.4 notices with the US Department of State.
In addition to due diligence, today’s overwhelming number of cross-border transactions require experienced counsel to shepherd transactions with national security issues through the CFIUS process. Ken’s experience with CFIUS and the separate agencies involved in the CFIUS review process allows for a strategic approach to the resolution of national security issues and concerns arising from investments in US companies and businesses by non-US companies, and acquisitions of US businesses and assets by foreign entities. Ken’s experience with CFIUS includes almost every industry and transactions from more than 15 countries, including China, Germany, Japan, the UK, Canada and Indonesia.
- On behalf of a multinational public manufacturing company, conducted an internal investigation of alleged conduct in the US and Latin America which was not permitted under the FCPA and numerous other federal regulatory schemes.
- Investigated foreign national, technical data and hardware export violations for a Fortune 50 aerospace defense company.
- Spearheaded complex administrative export investigations before multiple US government agencies and specific US Attorneys, whose offices expressed interest in potential criminal indictment.
- Investigated, advised and assisted a Fortune 50 rocket-missile-propellant company in disclosing export violations to the US Attorney and the US Department of State.
- Represented SAP AG before CFIUS in its acquisition of Concur Technologies, Inc.
- Represented Q-Free SA, of Norway, before CFIUS and DDTC regarding its acquisition of Open Roads Consulting, Inc.
- Represented numerous companies in voluntary disclosures and enforcement actions before the Federal Aviation Administration’s Drug Abatement division relating to compliance and enforcement under Part 40 and Part 120.
- Represented Sumitomo Bakelite Co., Ltd. before CFIUS and the US Department of State in the US$265 million acquisition of Vaupell Holdings, Inc., a global leader in highly engineered thermoplastic and composite products for the aerospace, defense, medical and commercial markets.
- Represented Saka Energi Fasken LLC, a subsidiary of PT Saka Energi Indonesia, an Indonesian state-owned upstream oil and gas entity, before CFIUS in the US$175 million acquisition of a 36 percent working interest in the Eagle Ford and Olmos shale formation rights to approximately 8,300 acres in Webb County, Texas.
- Represented Idemitsu Kosan Co., Ltd. before CFIUS in its indirect acquisition from SAM Holdings Ltd. of a 33 1/3 percent interest in Petrogas Energy Corp., a Canadian company specializing in energy supply, logistics and marketing with operations in Canada and the US, for CA$440 million (US$400 million).
- Advised Morgenthaler Private Equity regarding import and export issues in connection with its sale of portfolio company Avtron Aerospace, Inc., a leading designer and manufacturer of electrical, electronic and hydraulic aircraft component test solutions for the global commercial and military aerospace markets, to CapitalWorks.
- Advised Jefferies Finance LLC, as administrative agent, regarding OFAC compliance issues in connection with the negotiation and documentation of US$350 million of senior secured credit facilities provided to Internap Network Services Corporation, a global supplier of IT infrastructure services, in connection with its acquisition of iWeb Group Inc., a global provider of Internet hosting services and IT infrastructure.
- Advised The Riverside Company regarding export diligence in connection with the acquisition and related financing by portfolio company Eemax Holding Company of EcoSmart Green Energy Products, Inc., a manufacturer of tankless water heaters and related products and accessories.
- Advised SAP AG regarding export diligence and CFIUS in connection with its acquisition of hybris AG.
- Advised Resilience Capital Partners LLC regarding export diligence in connection with its acquisition and related financing of Aerospace Products International, Inc., a logistics company that distributes parts to airplane maintenance crews for military, commercial, private and corporate aircraft.
- Advised Harris Corporation, an international communications and information technology company, regarding ITAR and government contract issues in connection with the sale of its global Broadcast Communications Division to The Gores Group for US$225 million consisting of US$160 million in cash, a US$15 million subordinated promissory note and up to US$50 million in an earnout.
- Advised RockWood Equity Partners LLC regarding export and import diligence in connection with the acquisition by portfolio company Astrex Electronics Inc. of substantially all of the assets of TIM-CO/CAL-RF, a California corporation that distributes electronic components and cable assemblies.
- Advised Woodward, Inc. Regarding export due diligence in the acquisition of the hydraulic thrust reverser actuation systems business of GE Aviation Systems, a subsidiary of General Electric Company, for US$200 million.
- Represented Connell Limited Partnership before CFIUS and DDTC in its sale of America's largest maker of die components, Dayton Progress Corporation, and its components business (AD Components Business) of The Anchor Danly Company, to MISUMI Group Inc. for ¥15.6 billion (US$200 million).
- Advised ABB regarding ITAR, export and related diligence in its acquisition of Tropos Networks Inc., a Silicon Valley-based company that develops and markets wireless technologies and products for distribution area communication networks.
- Represented SAP AG before CFIUS in its acquisition of Syclo, a leading provider of enterprise mobile applications and technologies.
- Advised Avtron Holdings, LLC regarding export and import matters in connection with the sale of its portfolio company Avtron Loadbank, Inc., a leading global provider of power test and measurement devices for critical applications, to Emerson Electric Co., a manufacturer and provider of engineering services for a wide range of industrial, commercial and consumer markets.
- Addressed complex foreign national, privacy and European export issues for a Fortune 100 defense contractor.
Activities and Affiliations
- 2016 Export Controls and National Security Briefing Series: CFIUS Reviews Post-Ralls: What Has Changed...and What Has Not, Tysons Corner, Virginia (June 29, 2016).
- 2016 Export Controls and National Security Briefing Series: When to Pull the String: When and How to Look for Systemic Violations in Export Investigations, Tysons Corner, Virginia (March 23, 2016).
- 2014 Export Briefing Series: Conducting Effective Export Audits and Assessments Webinar (November 18, 2014).
- 2014 Export Briefing Series - CFIUS: Preparing your transaction for Cross-Border National Security Review Washington, DC (May 15, 2014).
- 2014 Export Briefing Series - Consequences of Export Reform: Part II Washington, DC (March 25, 2014).
- 2013 Export Briefing series - The CFIUS Risk/Reward Analysis for Buyers and Sellers Washington, DC, Webinar (November 12, 2013).
- 2013 Export Briefing Series - Dissecting Export Enforcement Under Export Reform: How to Prepare for and Address U.S. Government Inquiries and Investigations Washington, DC (September 17, 2013).
- 2013 Export Briefing Series - CFIUS: Identifying the Trends and Transitions Washington, DC (May 7, 2013).
- 2012 Export Briefing: CFIUS: Mistakes You Don't Want to Make and How "Government-Assisted Due Diligence "SM (GADD) Can Help You - Part II Washington, DC (July 10, 2012).
- 2012 Export Briefing Series: CFIUS - A Primer for Foreign Companies Acquiring U.S. Assets or Businesses – Part 1 Washington, DC (June 15, 2012).
- The "Responsible Corporate Officer" Doctrine: Relevance to Export Compliance Decisions and Associated Liability Risks Washington, DC (March 22, 2012).
- 2011 Export Briefing - Export Essentials for In-House Counsel and Compliance Personnel: What Every In-House Counsel and Export Compliance Personnel Should Know to Advise Their Clients on US Export Laws and Regulations Washington, DC (December 14, 2011).
- Executive Roundtable Series - National Security and Export Control Reform, Take Two. Or Three. Or Four ... ? Washington, DC (October 20, 2011).
- 2011 Export Briefing - Knock, Knock. Who's There? Export Enforcement: Effectively Addressing Government Inquiries, Administrative Subpoenas Washington, DC (September 29, 2011).
- Member, Law360 Advisory Board for Aerospace and Defense
Prior and Present Employment
- Ken served in the US Marine Corps and as a JAG officer (1982-1990). He actively represents veterans pro bono before the Board of Veterans Appeals, the US Court of Appeals for Veterans Claims, the Federal Circuit and various military discharge review boards. After law school, Ken served as law clerk to Judge Philip B. Baldwin, US Court of Appeals, Federal Circuit (1988-1989).