The Committee on Foreign Investment in the United States (CFIUS or the “Committee”) is an interagency committee, chaired by the U.S. Department of the Treasury, that reviews foreign investments in U.S. businesses to identify and address U.S. national security concerns. CFIUS has the authority to recommend that the President block pending transactions and order divestment of completed deals. To address this risk, parties to a transaction may submit a joint voluntary notice to the Committee so that it can review and clear the deal to proceed. If national security risks are identified in this process, the Committee may require that the parties agree to mitigation terms before the transaction may proceed.
The CFIUS practice at Akin Gump Strauss Hauer & Feld LLP consists of seasoned practitioners, former high-ranking national security and foreign policy officials who have been involved in the CFIUS process, and policy advisors with experience in managing the political aspects of these transactions. Our team has extensive experience in advising and representing clients during all stages of a transaction, including in identifying CFIUS risks, advising clients through the CFIUS review process, negotiating mitigation agreements, obtaining clearance from the Committee and addressing political risk that may arise in relation to the deal.
At the outset, Akin Gump’s CFIUS lawyers focus on identifying whether the transaction is subject to CFIUS review and assessing the extent to which it presents potential U.S. national security risks. This analysis involves not only a jurisdictional assessment of the structure of the transaction, which can capture investments in non-U.S. companies with U.S. operations, but also analyzing potential concerns that CFIUS may identify through the lens of its evolving national security criteria. Certain transactions may face increased scrutiny because, for instance, they involve particular buyers or assets in certain sensitive U.S. industries, including energy and natural resources, aerospace and defense, infrastructure, technology or U.S. government contracting. Akin Gump’s CFIUS team works with clients to proactively assess, and develop a strategy for addressing, the CFIUS risk in the transaction.
Since the Committee can compel parties to submit a notification at any stage of the deal, including after closing, our team may conclude that filing a voluntary notice with CFIUS is warranted based on our regulatory and political calculation of the proposed transaction. In such cases, we will engage with the Committee to promptly explain the proposed transaction, provide information about the parties and solicit comments from CFIUS members regarding potential concerns. Such proactive engagement is essential in cases where transactions are particularly complex or contentious, especially considering the limited time that CFIUS has to determine the necessity of a full investigation.
Clients engaged in potentially controversial transactions benefit from the firm’s multifaceted approach in which not only members of the international trade team, but also lawyers in our national security, public law and policy, telecommunications, media and technology, energy, government contracts, cybersecurity, corporate and other relevant practices, engage with CFIUS, Congress and executive branch officials, and the media to address potentially sensitive aspects of a transaction. We also work across practices to coordinate strategies on parallel regulatory reviews that may be required for a transaction.
Our lawyers have represented both buyers and sellers before CFIUS, successfully guiding them through the review process and, in many cases, obtaining clearance of the transaction by CFIUS during the initial 30-day review. When mitigation measures are necessary, our team will work with the various stakeholders to develop a solution that addresses U.S. national security concerns while preserving the goals of the parties to the transaction.
In addition, our CFIUS team advises third-party investors regarding CFIUS risks that may be present in transactions. For instance, our lawyers are seasoned at advising investment funds and passive investors regarding how a CFIUS review may impact the timing and outcome of a pending transaction based on public information.
Relevant Supporting Practices
The international trade practice at Akin Gump offers an array of services designed to optimize our clients’ ability to engage in the cost-efficient and timely exchange of goods and services across borders, in full compliance with applicable laws and regulations. Our lawyers and advisors assist clients with issues before the departments of State, the Treasury, Commerce, Justice and Homeland Security, including U.S. Customs and Border Protection, among other governmental bodies in the United States and abroad.
Ever-evolving national security and foreign policy priorities increase risks for companies with international business interests. Without experienced legal guidance, even routine business transactions can run afoul of U.S. export control, sanctions and anticorruption laws. In the current political climate, companies confronted with enforcement actions also face the possibility of damage to their relations with government officials, their stockholders and the general public. These international trade issues are intertwined with CFIUS matters and are handled seamlessly by CFIUS and international trade practitioners.
Public Law and Policy
Akin Gump’s bipartisan public law and policy practice comprises more than 75 lawyers and other professionals who practice exclusively on legislative, policy and regulatory matters, including many former members of Congress and other lawyers with considerable experience in government service, many of whom also engage in outside political activities in both major U.S. political parties. These practitioners are able to assist our clients in building and maintaining relationships with current members of Congress who are in key leadership positions. Our public law and policy practice is consistently ranked as one of the top government relations practices in Washington, D.C.
Our public law and policy practice teams with our CFIUS practitioners in politically sensitive transactions to develop a strategy for engaging with policy-makers and stakeholders to address potential risks that may arise at any point in the transaction life cycle. This strategy often involves engagement with CFIUS members, high-ranking agency officials, congressional committees or individual legislators with interests in specific transactions. Along those lines, the firm approaches such sensitive cases with an integrated and coordinated team to address the full spectrum of regulatory, policy and political issues that may be implicated by the transaction.
Akin Gump is known internationally for its sophisticated, diverse and full-service energy law practice, encompassing transactional, dispute and regulatory matters, with lawyers and offices that are actively engaged on oil and gas, renewable and other energy matters and in key global energy “capitals.” Our energy practice consists of an outstanding firmwide team of more than 250 lawyers who frequently represent public and private companies, sponsors and portfolio companies in project finance and development, joint ventures, mergers, acquisitions and divestitures in both U.S. and foreign markets; issuers and underwriters in a wide variety of public and private equity and debt offerings; borrowers and lenders in bank lending transactions; and non-U.S. clients in the energy sector in investments in North America. We also advise on a wide variety of energy-related project construction, development, operations and finance matters. Our energy team works closely with our CFIUS practitioners to address CFIUS risks as they arise in energy deals involving non-U.S. investment in the United States.
Telecommunications, Media and Technology
Akin Gump provides a multidisciplinary approach to address the increasing consolidation, competition and regulation that our global telecommunications, media and technology clients face. We help our clients pursue opportunities and navigate and manage risks in challenging business and political landscapes. Our lawyers serve as transactional counsel to top-tier telecommunications companies throughout the world, as well as new technology companies and other industry service providers. Along those lines, our team has deep experience with Team Telecom issues that involve restrictions on non-U.S. ownership of Federal Communications Commission licenses and that also arise in parallel to CFIUS issues.
Infrastructure and Transportation
Akin Gump’s infrastructure and transportation practice advises public- and private-sector clients in the United States and globally on innovative strategies for financing and developing large infrastructure projects. We have brought together in one practice lawyers from various disciplines who can deliver to project development clients a complete and fully integrated set of services. We have advised clients on transportation; hospital and health care; energy and utility; private and military housing; commercial, hotel and resort; and other types of development projects. Because critical infrastructure is a heightened risk area under the CFIUS laws, we have integrated CFIUS practitioners into our infrastructure and transportation team, particularly on matters involving foreign investment in the United States.
Akin Gump’s government contracts lawyers draw from a wide range of resources and technical experience to represent clients in all aspects of government procurement. We are experienced in the federal, state and local procurement processes, laws, regulations and dispute-resolution practices. We provide a full range of legal services to clients that do business with governmental entities, and we advise clients on complying with complex government regulations, including novation issues that may arise in CFIUS mitigation.
Moreover, we provide guidance on compliance with the Foreign Ownership Control and Influence regulations administered by the Defense Security Service (DSS) of the U.S. Department of Defense, particularly in the context of transactions that involve government contractors where CFIUS issues are also at play. Along those lines, we closely coordinate our strategies for engaging with DSS and CFIUS and developing mitigation strategies, as needed.
Cybersecurity, Data Protection and Privacy
Critical infrastructure companies—in industries including energy, chemical, financial services, commercial facilities, food and agriculture, communications, government facilities, critical manufacturing, health, dams, IT, defense industrial, nuclear, emergency services, transportation and water—need to be aware of cybersecurity developments in the federal government and with regulators. Akin Gump’s cybersecurity team offers several services to ensure that clients are legally prepared for the cyber threats that you face—from M&A cybersecurity due diligence assessment to third-party vendor contract and security reviews.
We advise clients on legal issues related to critical infrastructure cybersecurity risk management. The voluntary National Institute of Standards and Technology Framework for Improving Critical Infrastructure Cybersecurity was developed pursuant to President Obama’s Executive Order 13636, “Improving Critical Infrastructure Cybersecurity,” and presents a new set of risk management issues for companies in industries that are responsible for critical infrastructure services. Akin Gump lawyers are intimately involved in these impacted industries, including energy, utilities, national security, communications and information technology, health care, food and transportation. Since cybersecurity issues are often critical in the CFIUS risk calculus, we leverage our experience in this area to assess CFIUS risks and develop mitigation strategies, as needed.