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 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 do not outsource critical technology analyses, government contracts diligence or sanctions assessments, and we do not allocate or track credit for originating, managing or working on client matters.

Our lawyers have deep experience in their respective focus areas. The team includes two former CFIUS officials and in-house counsel responsible for export controls, sanctions and government contracts 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 constantly informed and refined by our exposure to an unparalleled volume and diversity of cross-border transactions. We advise more than 300 different 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 position in the market has made our CFIUS team 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.

Areas of practice

Strategic CFIUS counseling

We provide strategic CFIUS counseling for all types of businesses and investors 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 the parties, corporate deal teams and opposing counsel to put our clients in the best possible position for success.

  • Prepare CFIUS filings and 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 with respect to 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