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.
Our representative list of CFIUS engagements includes advising:
Energy and Natural Resources
- a U.S. energy company in its proposed sale of a solar energy business to a Chinese investor
- a U.S. energy company in its proposed sale of U.S. oil and gas assets to a Chinese investor
- a Chinese investment company in its acquisition of U.S. oil and gas assets
- a U.S. energy company in its sale of interests in an LNG project to a French investor
- a Canadian investment fund in its acquisition of U.S. renewable energy assets associated with a U.S. military base
- a Russian investor in proposed investments in U.S. oil and gas assets
- an Asian gas and power company in a joint venture with a large, U.S. independent oil and gas company
- a Hong Kong investment company in its potential investment in certain U.S. energy facilities
- Pegasus Capital Partners, a private equity firm and member of a consortium of partners that purchased a rare earth mining operation from Chevron Corporation
- Valero Energy Corporation, the largest oil refiner in North America, in the sale of an oil refinery in Krotz Springs, Louisiana, to Alon USA Energy, a U.S. subsidiary of Alon Oil, an Israeli corporation
- Astra Oil Trading NV, a Netherlands corporation, in the sale of its 50 percent interest in a Texas oil refinery to a Brazilian company
- Husky Energy, Inc., a Canadian company majority owned by Hong Kong interests, in a 50/50 joint venture with BP Products North America Inc., in which Husky Energy contributed approximately US$2.5 billion in cash to the joint venture and BP Products North America contributed assets of an oil refinery outside of Toledo, Ohio
- Husky Energy, Inc., a Canadian company majority-owned by Hong Kong interests, in its acquisition of Lima Refining Company (Ohio) from Valero Energy Corporation
- Astra Group, a Belgian entity that, in two separate transactions, acquired a crude oil refinery in the state of Washington and sold half of its interest in a Texas refinery to a Brazilian company
- EnCana Corporation, a Canadian company that established two joint ventures, one in Canada and one in the United States, with ConocoPhillips
- CNOOC Ltd., a Chinese offshore oil and producer, in its aborted attempt to acquire Unocal, a U.S.-based global energy company.
- a Chinese software company in its proposed acquisition of a U.S.-based robotics company
- International Data Group, Inc., a technology research and media company, on its sale to China Oceanwide Holdings Group Co., Ltd., a conglomerate with investments in banking, media and technology
- a Russian entity in relation to a proposed investment in an early-stage satellite company
- a specialty insurance provider in relation to the proposed sale of a U.S. semiconductor company to a Chinese consortium
- a global maritime technology company in its potential sale to a French navigation company
- a U.S.-headquartered medical diagnostic company in the sale of a division to a U.K. private equity fund
- Azima Services, Inc., a privately held software and services company focused on industrial machine reliability, in its acquisition of DLI Engineering Corporation from ABB Ltd, a Swiss corporation
- Bain Capital Investors, LLC, a U.S. private equity firm, with respect to its acquisition of 3Com Corporation together with a minority investment by Huawei Tech. Investment Ltd, a Hong Kong company and wholly owned subsidiary of Shenzhen Huawei Investment & Holding Co., Ltd. of the PRC
- Zeus Holdings Limited, a Bermuda corporation formed by a consortium of U.S. and foreign private investment funds, in its acquisition of Intelsat, a U.S.-based Bermuda corporation that owns and operates a global communications satellite system.
Aerospace and Defense
- an aerospace and defense company in the divestiture of a portion of its interest in an IT outsourcing joint venture to an Indian technology company
- United Technologies Corporation in its sale of its EcoPower business unit to ST Aerospace, a Singapore company
- a major U.S. aerospace company in its sale of an aerospace business unit to a large Japanese company
- a major U.S. aerospace company in its sale of an aerospace business unit to a large French company
- a major U.S. aerospace company in its sale of certain aerospace assets and technology to a large French company
- a maritime company providing services to the U.S. military in its sale to a Canadian private equity fund
- Landmark Aviation, a U.S. aerospace company that was one of two portfolio companies in the aerospace sector owned by Carlyle Group, a U.S. private equity firm, in the sale of those businesses to Dubai Aerospace Enterprises
- CAE Inc., a Canadian manufacturer of commercial and military flight simulators and visual systems that acquired SimuFlite Training International, Inc., a subsidiary of General Electric Credit Corporation
- Racal Electronics PLC, a British defense and telecommunications company with significant U.S. assets, that merged with Thomson-CSF, a French defense company that subsequently changed its name to Thales.
- an Italian transportation manufacturer in its purchase by a Japanese manufacturing conglomerate
- an Italian transportation controls manufacturer in the acquisition by a Japanese manufacturing conglomerate of the approximately 40 percent interest in the company owned by an Italian high-tech industrial group
- Daimler AG, a German company and the largest manufacturer of commercial vehicles in the world, in its investment in Tognum AG, a German company with U.S. subsidiaries in the “off-highway business”
- Foseco plc, a public limited company incorporated in England and Wales, in its sale of all issued and to-be-issued ordinary share capital in Foseco plc, including its wholly owned U.S. subsidiary, Foseco Metallurgical Inc., to Cookson Group plc, a public limited company incorporated in England and Wales.
- various global investment firms on the CFIUS risks associated with pending transactions
- a Chinese conglomerate in its acquisition of a U.S. insurance company
- a Chinese entity in a proposed investment in the U.S. entertainment business
- a diversified company in expediting a CFIUS decision, which we concluded successfully, that allowed the company to close the sale of 51 percent of an agribusiness to investors that included a Chinese joint venture partner
- Iomai Corporation, a U.S. pharmaceutical company, in its acquisition by Intercell AG, an Austrian biotechnology corporation focused on the design and development of vaccines
- The Nasdaq Stock Market, Inc., a U.S. national securities exchange, with respect to the investment by Borse Dubai
- Neptune Orient Lines, a Singapore shipping company that sold its oil tanker business, including its U.S. assets, to Malaysian International Shipping Corporation
- a U.S. company providing services to sensitive sectors of the U.S. government in its tie-up with an Indian-backed entity.