Kelley Drye’s CFIUS practice has extensive experience counseling companies dealing with the rules and practicalities of the CFIUS review process. We have advised numerous clients regarding the new Foreign Investment Risk Review Modernization Act (FIRRMA) changes to CFIUS. Our attorneys counsel U.S. and foreign companies from a range of industries, including companies active in defense and dual-use equipment production and use, software, and services, communications technology and networks, media, cloud computing and other internet services, real estate, aerospace materials, industrial equipment, lasers and sensors, electronics, and fluid handling and oilfield equipment and services, among many other sectors. We also provide assistance with matters subject to the Defense Security Service (DSS) and “Team Telecom” processes that require the approval and often mitigation of foreign ownership, control, or influence (FOCI) over U.S. government contractors, classified and export controlled data, and communications service providers.
Our CFIUS practitioners work alongside the firm’s M&A lawyers and subject matter and industry professionals across the firm to develop the most effective approach for each transaction. We assist clients in conducting pre-transaction due diligence to determine if a voluntary filing is recommended or not, pre-clearance of submissions with CFIUS, filing final CFIUS notifications and working with the designated lead agencies during initial reviews and follow-up investigations. We have experience negotiating any required mitigation agreements to address perceived national security risks associated with foreign ownership, control, or influence. We also have recent experience establishing trust agreements when divestment by foreign owners is required. In short, we have deep and broad experience with the entire CFIUS process involving both simple and highly complex matters in a variety of industries.
On occasion, members of Congress and staffers have requested information from domestic clients regarding CFIUS processes, or other government relations concerns that arise during the review process. Our government relations team has extensive experience in dealing with such matters, and we have significant experience with handling Foreign Agents Registration Act (FARA) concerns.
Kelley Drye’s interdisciplinary team includes a former member of the National Security Council staff who served on CFIUS, a former member of the U.S.-China Economic and Security Review Commission, former employees of the Department of Commerce, State Department, the Office of the United States Trade Representative (USTR), the Federal Communications Commission (FCC), as well as several individuals who formerly served in Congress or as Congressional staffers. We also engage with U.S. government agencies on national security matters on behalf of our clients, including the Departments of Treasury, State, Defense, Commerce, Justice, Homeland Security and Energy, the FCC, among others.
Our team understands what companies need to do to gain CFIUS approval for their transactions. To navigate the CFIUS process successfully, foreign companies wishing to invest in the U.S. market must be aware of a range of complex and sensitive legal, commercial, political, and public relations issues. The CFIUS review and investigation process can be opaque, unpredictable, and result in delays or potential changes to key elements of proposed investments. Nevertheless, CFIUS clearance is the only way to ensure that CFIUS will not force post-transaction unwinding or other mitigation steps, which, if required, are typically more disruptive than the review and investigation process.