Mayer Brown’s National Security and International Trade practices have years of experience with the CFIUS process. Mergers, acquisitions and joint ventures involving a foreign party’s acquisition of all or part of a US business often are subject to review by the Committee on Foreign Investment in the United States (CFIUS). This multi-agency committee, chaired by the Department of the Treasury, was created to perform national security reviews of in-bound foreign investments and was given the authority to block foreign investments or force divestitures of foreign investments that were not cleared through a formal review process.
As the scope of what is considered national security has expanded in the years since the 9/11 attacks, CFIUS has become a key regulatory hurdle for transactions involving not only the US defense sector, but also those involving businesses in energy, infrastructure, manufacturing, technology, telecommunications, transportation, finance and real estate. As part of the initial assessment of the sale or purchase of any US business, it is advisable to consider whether an investment may be subject to CFIUS review. If CFIUS review is warranted, then early planning of the legal, political and media strategy for achieving CFIUS clearance is essential.
Mayer Brown’s National Security and International Trade practices have years of experience with the CFIUS process and with related national security reviews that may be required. With US government service veterans who have experience in and before the involved agencies—including Treasury, State, Commerce, Defense and Justice, among others—we can help identify circumstances in which it is essential to proactively engage the committee. We assist both foreign acquirers and US businesses to evaluate a proposed transaction from a CFIUS perspective, shape an effective strategy for addressing any likely CFIUS concerns, prepare the official notification to CFIUS, help respond to CFIUS questions and concerns, and negotiate with CFIUS over any mitigation measures that CFIUS proposes. We also counsel clients on related national security reviews, such as those associated with classified facilities or with products and technologies that have military applications.
Lawyers in Mayer Brown’s International Trade practice have extensive experience advising investors, sellers and targets about national security restrictions that fall under the purview of CFIUS. Some members of our team participated in CFIUS reviews while serving in the US government. Our work includes the following:
- Helping to assess whether prospective transactions raise national security issues.
- Advising on how to structure transactions to mitigate national security concerns while achieving business objectives.
- Implementing all phases of regulatory clearance under the CFIUS process, including developing the basic message to be conveyed to CFIUS, preparing the notification to CFIUS, making presentations on behalf of proposed transactions and negotiating mitigation agreements to satisfy CFIUS concerns.
- Establishing compliance programs to govern classified facilities, sensitive technologies and other elements of a US business that may pose security concerns.
- Helping to anticipate and address government relations and public relations issues that may complicate the successful completion of the regulatory review process.
Over the years, we have advised on scores of transactions involving national security restrictions. Among the notable transactions on which we have provided advice are the following:
- Sinochem Group’s $1.5 billion purchase of interests in Texas’ Wolfcamp shale properties held for drilling by Pioneer Natural Resources Company.
- The acquisition of a joint venture in the seismic technology field, with majority ownership by a Chinese state-owned enterprise.
- Two separate acquisitions by a private Chinese solar company of US solar businesses.
- Deutsche Börse’s $9.5 billion acquisition of the New York Stock Exchange (subsequently blocked by EU antitrust concerns).
- The acquisition of one of the largest US steel operations, the Sparrows Point facilities in Baltimore, by the Russian firm OAO Severstal.
- A US energy distributor’s transactions with three separate foreign investors forming two REITs to develop and acquire electricity and gas transmission, storage and distribution assets.
- The acquisition of the leading oil and gas land drilling business in the United States, Grey Wolf, by the Canadian firm Precision Drilling.
- The first transaction seeking to privatize a major US airport, Chicago Midway, by a consortium of investors including Middle Eastern and Asian entities, some state-owned (did not close due to financing difficulties).
- The privatization of certain terminal operations at the Port of Portland by a Philippines-based company.
- The $450 million acquisition of a US firm focused on infectious disease diagnostics, which had classified government contracts, by a French firm.
- The acquisition by a Chinese consortium, including government instrumentalities, of a US Internet services company.
- The $2.6 billion privatization of the Caribbean’s busiest airport, Luis Muñoz Marin International Airport in San Juan, Puerto Rico, by a Mexican-led consortium.
- The acquisition by French private equity investors of a US firm specializing in airport ground support equipment and services.