Oberheiden P.C. is a law firm that focuses on compliance and defense for corporations on CFIUS matters.
- CFIUS is a U.S. quasi-governmental agency that analyzes and reviews proposed or pending foreign investments into U.S. businesses for possible national security implications and threats.
- CFIUS has the enhanced authority and jurisdiction from FIRRMA to review certain covered transactions involving any foreign entity that could result in foreign ownership or control of a U.S. business.
- Despite this common objective of CFIUS to scrutinize proposed foreign investments for U.S. national security threats, the scope of its powers over the years since its inception in 1975 has drastically changed.
- CFIUS coordinates complex review procedures, handles multiple requests for additional information, and imposes mandated mitigation measures in order for a proposed transaction to be approved.
- Consider placing an experienced team of attorneys on your side to advise you on the legal, regulatory, and compliance-related issues regarding CFIUS authority.
Experienced Defense Team Regarding CFIUS Matters
The sophistication of the Internet and rise in technological advances have resulted in an increase in IP thefts and crimes. This risk is exacerbated by foreign direct investment in U.S. businesses.
This has led to massive legislative reform to counteract these national security threats. However, it can sometimes be challenging to stay up to date with such changes, especially if your business is considering foreign direct investment in its operations.
The CFIUS review is a complicated process and can result in many unforeseeable implications, including disadvantageous mitigation measures or increased federal government scrutiny regarding your proposed business transactions concerning foreign investment.
At Oberheiden, P.C., our CFIUS attorneys can advise you on matters relating to the CFIUS review process, including mitigation measures for foreign investments between foreign parties and your business.
Do not wait to get in touch with a qualified attorney today. Put Oberheiden, P.C. on your side to advise you on these issues surrounding CFIUS reviews and CFIUS authority.
Definition of CFIUS
Committee on Foreign Investment in the United States (“CFIUS”) is a U.S. quasi-governmental agency that scrutinizes proposed or pending foreign investments into U.S. businesses for potential U.S. national security threats.
It exercises delegated authority to review certain covered transactions such as mergers, acquisitions, or takeovers involving any foreign entity that could result in foreign control of a U.S. business.
On August 13, 2018, President Trump signed the NDAA 2019 into law, which incorporated the Foreign Investment Risk Review Modernization Act (“FIRRMA”).
Briefly, FIRRMA reformed the review process used by CFIUS to scrutinize and approve foreign direct investment into U.S. businesses. It did this mainly by strengthening the authority and jurisdiction of CFIUS to review covered transactions that could present undue national security risks for the United States.
The Composition of CFIUS
CFIUS is chaired by the Secretary of the Treasury. In addition, the Department of the Treasury’s website notes that CFIUS is composed of the heads of the following governmental departments:
- Department of the Treasury (as the chair)
- Department of Justice
- Department of Homeland Security
- Department of Commerce
- Department of Defense
- Department of State
- Department of Energy
- Office of the U.S. Trade Representative
- Office of Science & Technology Policy
Notices from parties to a proposed foreign investment to CFIUS are processed by the Staff Chairperson of CFIUS. This Staff Chairperson is also the Director of the Office of Investment Review and Investigation within the Department of the Treasury.
Additional governmental offices that observe and participate in the CFIUS review process include the Office of Management & Budget, the Council of Economic Advisors, the National Security Council, the National Economic Council, and the Homeland Security Council. Additionally, there is an agency in the DoD called the Defense Counterintelligence and Security Agency (formerly the Defense Security Service), which overlaps with CFIUS process from time to time.
Brief History of CFIUS
While CFIUS’s most basic duty has always been to analyze whether foreign direct investment in the United States poses a threat to U.S. national security interests, its powers and duties over the years since its inception via executive order in 1975 have drastically changed.
President Ford created CFIUS by Executive Order in 1975 as a result of escalating pressure from Congress over concerns regarding the increase in investments by the Organization of the Petroleum Exporting Countries (“OPEC”) in U.S. assets.
CFIUS originally operated as an advisory committee but was then amended and vested with more regulatory powers through the 1988 Exon-Florio Amendment to the Omnibus Trade and Competitiveness Act. This Amendment gave the President the authority to block certain foreign investments and was passed in response to concerns over the increase in Japanese foreign direct investment.
Congress then replaced the executive order and codified CFIUS in the Foreign Investment National Security Act of 2007 (“FINSA”). FINSA was passed as a direct response over a 2005 acquisition involving Dubai Port World, an UAE state-owned entity. It transformed the CFIUS review process to allow for greater congressional oversight, increased transparency over proposed foreign investments, and enhanced CFIUS scrutiny.
In 2018, CFIUS underwent a massive transformation and reform through the Foreign Investment Risk Review Modernization Act (“FIRMMA”). FIRRMA enhanced the powers and authority and broadened the jurisdiction of CIFIUS regarding covered transactions that are subject to CFIUS review.
Thus, CFIUS is constantly changing to adapt to new technologies and emerging foreign economies—both in relation to national security.
Matters Our CFIUS Defense Team Will Handle
At Oberheiden, P.C., our team of CFIUS attorneys are competent to handle the following matters regarding the CFIUS review process, CFIUS requests for information, and CFIUS-mandated mitigation measures:
The above list is broad and only representative of the matters our attorneys are competent to handle. If you have questions regarding additional matters as relevant to the CFIUS review process or a proposed foreign investment, contact our team of attorneys today.
Why Clients Choose Oberheiden, P.C.
At Oberheiden, P.C., our attorneys have extensive experience in the review process used by CFIUS to scrutinize foreign direct investment into U.S. businesses that pose national security risks to the United States.
We can help you decide not only whether it is advisable to file a notice with CFIUS regarding a proposed foreign investment but also how to structure such notice and respond to CFIUS requests for additional information.
We are competent to advise our clients on the authority of CFIUS, as substantially reformed by FIRRMA and modified by the new final regulations.
In today’s evolving world with increasingly sophisticated technology, international trade, and emerging economies—such as China—it is essential to retain as early as possible a team of attorneys skilled in national security issues and CFIUS rules, procedures, and regulations.
Skilled Legal Representation
It is critical that a defense team remains up-to-date on all relevant information throughout their client’s representation. Our team of defense attorneys are experts in national security matters, beginning with the investigative stages and extending to litigation and appeal.
We have a high success record defending and advising our clients on national security issues regarding proposed transactions involving foreign parties. This includes, for instance, M&As or takeovers that involve the transfer of assets to foreign parties.
At Oberheiden, P.C., our team of national security attorneys has the litigation experience needed to promptly respond to regulatory changes and represent our clients with dedication and passion.
Knowledge of Emerging National Security Issues
As mentioned, the scope and duties of CFIUS were substantially reformed by FIRRMA. One of the most critical changes is the broadened jurisdictional authority to review other foreign investments that are deemed “non-controlling.”
At Oberheiden, P.C., our CFIUS attorneys can anticipate and quickly adapt to national security laws and CFIUS regulations during the early stages of its promulgation.
Our team of national security attorneys is poised to advise our clients on the potential implications of proposed foreign investments in their businesses as well as the expected CFIUS review process for obtaining CFIUS clearance.
At Oberheiden, P.C., we have a unique combination of highly talented attorneys. Our attorneys include former FBI agents, former U.S. attorneys, and former prosecutors.
We draw upon this interdisciplinary background to deliver personalized and hand-tailored defense strategies and advice to the specific needs of our clients.
We take a proactive approach to our law practice that is aimed at helping our clients succeed and understand the legal implications of their proposed transactions involving foreign direct investment.
CFIUS reviews and procedures can be a complicated issue, especially considering the massive reforms introduced by FIRRMA. We understand that it is hard to stay abreast of such legal, regulatory, and compliance changes.
If you have questions regarding the evolving powers of CFIUS, you need the advice of a skilled attorney.
The CFIUS law firm of Oberheiden, P.C. has the experience needed to properly advise you on the scope and extent of CFIUS authority. This includes the CFIUS review process and how FIRRMA enhanced the authority of CFIUS.
Call us at 888-680-1745 or contact our office for a free consultation to help receive advice on these emerging issues.
Further Reading on CFIUS
- The Ultimate Guide to CFIUS Compliance
- FAQs on the Foreign Investment Risk Review Modernization Act (FIRRMA) and the CFIUS Pilot Program
- Three Common Triggers for CFIUS Review of Acquisitions By Foreign Entities
- What Triggers A CFIUS Review?
- CFIUS and China
- CFIUS Final Regulations under FIRRMA
CFIUS Attorney: Regulations, Defense & Compliance | Federal Lawyer