CFIUS

Unique among CFIUS practices today, our team is a cohesive, multidisciplinary group of lawyers with decades of combined experience in the subject areas necessary to help clients navigate national security issues in a post-Foreign Investment Risk Review Modernization Act (FIRRMA) environment.

Our CFIUS, export control, government contracts and sanctions lawyers are organized under a single practice group and operate as a unified team – a structure that allows us to offer clients efficient, responsive and comprehensive service. We conduct critical technology analyses, government contracts diligence and sanctions assessments in-house.

Our lawyers have deep experience in their respective focus areas. The team includes two former CFIUS officials and a former in-house counsel responsible for export controls and sanctions matters. Our US-based team coordinates closely with our UK-based foreign direct investment team, ensuring seamless coverage of FDI issues across the globe.

Our experience is continually informed and refined by our exposure to an unparalleled volume and diversity of cross-border transactions involving venture financings and tech and life sciences companies. We advise 300+ clients each month in virtually every industry and technology vertical. Through our close partnership with Cooley’s market-leading emerging companies, venture capital, fund formation, capital markets, and M&A practices, we represent all types of clients – from pre-commercial startups to Fortune 100 companies, global multinationals, sovereign wealth funds and everything in between. Our CFIUS team is among the most active and experienced in the US when it comes to counseling companies and investors, representing clients in formal national security reviews, and addressing post-closing CFIUS inquiries.

Cooley’s CFIUS team is part of our CooleyREG offering, through which we combine an understanding of the impact of disruptive advancements – and the regulatory issues that impose risk and slow progress – to help our clients navigate an increasingly complex regulatory landscape.

Areas of practice

Strategic CFIUS counseling

We provide strategic CFIUS counseling for every type of business and investor at all stages of development, including with respect to company and fund formation, pre-transaction planning, and post-closing risk mitigation.

• Conduct CFIUS jurisdiction assessments – including analyses of investor nationalities, classifications of company technologies, assessments of sensitive data and transaction structure issues
• Develop full-spectrum CFIUS and CFIUS-adjacent diligence programs (i.e., covering export controls, sanctions, anti-money laundering, anti-corruption and government contracts issues) to assess national security and business risks
• Design transaction structures to mitigate or eliminate CFIUS and business risks (e.g., by limiting foreign investor rights, divesting sensitive assets or contracts from a transaction, working with government customers and other stakeholders, or forgoing high-risk investments entirely in favor of alternative funding)
• Advise corporate teams and transaction parties regarding transaction risk allocation (e.g., negotiating appropriate CFIUS representations and disclosures, closing conditions, covenants, side letters, post-closing compliance obligations, and other provisions to protect client interests)

Representations before CFIUS

When parties decide that a formal CFIUS filing is required or otherwise warranted, we work closely with them, corporate deal teams and opposing counsel to put our clients in the best possible position for success.

• Prepare CFIUS notices and declarations, as well as navigate clients through the formal CFIUS assessment, review and investigation process
• Coordinate with company government customers and other stakeholders to minimize business disruptions arising from foreign investment issues and the CFIUS review process generally
• Negotiate national security agreements and other mitigation instruments with the government and counterparties
• Manage post-closing compliance obligations where parties have entered into mitigation terms as a condition to CFIUS approval

Post-closing ‘non-notified’ CFIUS inquiries

As CFIUS commits more resources to enforcement actions, transactions are increasingly vulnerable to post-closing CFIUS scrutiny. We have advised scores of clients on such “non-notified” inquiries since FIRRMA’s implementation in early 2020.

• Conduct CFIUS jurisdiction assessments to determine whether CFIUS has the authority to request a formal filing with respect to a closed transaction
• Advise parties on their obligations to respond to CFIUS non-notified inquiries
• Represent parties in the preparation of their filings and navigate them through the process when a formal CFIUS filing is required