CFIUS

Taft has extensive experience counseling both U.S. and foreign clients on matters related to Committee on Foreign Investment in the United States (CFIUS) diligence, filings, and compliance, including related national security matters. We advise clients worldwide — including U.S. companies considering taking on foreign investment, U.S. and foreign investors, and private equity and venture capital firms — on the nuances of this complex area of law.

Taft’s CFIUS experience includes:

• Representing foreign and U.S. parties in CFIUS Declaration and Notice filings.
• Negotiating National Security Agreements (NSA) when CFIUS identifies national security concerns related to a foreign investment.
• Advising clients on ongoing compliance with NSAs, including creating NSA compliance policies and programs, performing NSA risk assessments, advising on handling NSA violations, and working with supervising government agencies.
• CFIUS-related due diligence on M&A transactions, including assessing “foreign person” status for investors, reviewing CFIUS jurisdiction and mandatory filing triggers, and advising on CFIUS risk factors and timelines.
• Advising clients on responding to inquiries from CFIUS’ non-notified transactions investigation team.
• Using our deep bench of professionals with subject matter knowledge from various industries and technologies commonly subject to CFIUS scrutiny — such as cybersecurity and computing, advanced materials and manufacturing, government contracting, transportation, critical infrastructure, aerospace and defense, and foundational and emerging technologies — to advise clients on CFIUS risks.
• Reviewing real estate transactions for CFIUS jurisdiction and risk factors.
• Advising clients on related foreign investment filing requirements, including Agricultural Foreign Investment Disclosure Act (AFIDA) and Bureau of Economic Analysis (BEA) regulations.
• Advising clients on export control (including EAR and ITAR) classification reviews and their implications for CFIUS “critical technology” and “TID U.S. business” definitions as applied to a U.S. business.

Taft’s CFIUS practice includes multiple former U.S. government officials from agencies involved in the CFIUS process, including the U.S. Department of State, Department of Justice, Department of Defense, Department of Commerce, and Department of Homeland Security. Since we understand the perspectives and national security concerns resident in the government, we can “speak their language” and serve as an intermediary and translator between the private sector and government. We take national security concerns seriously, and know our clients do as well, but we also can help the government understand our clients’ perspective on issues such as why a foreign investment might be good for supply chain security, why a company’s technology does not trigger a mandatory CFIUS filing, or why certain burdensome conditions can be eliminated from an NSA without harming national security.

Taft has particular experience assisting sophisticated small and medium-sized law firms that handle cross-border M&A deals, venture capital investments, and real estate transactions and require occasional CFIUS subject matter knowledge. We know how to work with lead counsel in a way that complements but does not commandeer their role — and with reasonable fee structures that allow for vetting of CFIUS matters and clarity for their clients without breaking their budget. When serving as co-counsel, we can provide a full scope of services ranging from a simple analysis of CFIUS jurisdiction to walking the client through a full-blown CFIUS filing.

Taft also advises clients on a wide range of related national security issues that often inform or arise during CFIUS reviews, including sanctions and export control compliance, criminal investigations and white-collar defense, FCPA and international anti-corruption, cybersecurity and data privacy, supply chain investigations, and import/export matters. We also regularly work with our global partner law firms in the Interlex Group and other relationships to advise on compliance with foreign investment national security laws of other jurisdictions.