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Staying Compliant With CFIUS and How to Advise Your Client When Making Foreign Investments

 

Understand the scope of CFIUS jurisdiction and be able to identify transactions that would trigger a mandatory filing or warrant a voluntary filing.

The Foreign Investment Risk Review Modernization Act (FIRRMA) of 2018 introduced a lot of changes to the review of foreign investments by the Committee on Foreign Investment in the U.S. (CFIUS). With the major overhaul of CFIUS regulations now complete, it is a de facto requirement that parties to an M&A transaction confirm whether their proposed acquisition would trigger CFIUS jurisdiction and require a mandatory filing with CFIUS. CFIUS jurisdiction was expanded in two major ways: first, in addition to acquisitions that will result in foreign control over a U.S. business, CFIUS now can review foreign minority investments in certain U.S. businesses handling critical technologies, critical infrastructure, or sensitive data of U.S. nationals. Second, certain real estate transactions are now also subject to CFIUS jurisdiction if the real estate is in close proximity to sensitive military installations or certain ports and airports. Business needs to understand the scope of CFIUS jurisdiction and be able to identify transactions that would trigger a mandatory filing or warrant a voluntary filing. Failure to file with CFIUS may result in penalties up to the value of the transaction or an order by the president to divest.
This topic will help M&A practitioners and all parties involved in an M&A transaction identify the factors that might trigger a CFIUS review, learn when a CFIUS filing is mandatory, and avoid the possibility of a penalty or unwinding of the transaction in the future. The material also explains the CFIUS procedure and timeline of review to help businesses budget time for regulatory approvals within the overall timeline of the transaction. Certain exceptions to CFIUS jurisdiction will be discussed. With CFIUS now having the resources to initiate reviews on its own, it is critical to ensure that the risk of future questioning or unwinding by CFIUS is properly evaluated and addressed prior to closing, to protect the value of the investment.

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Staying Compliant With CFIUS and How to Advise Your Client When Making Foreign Investments

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Staying Compliant With CFIUS and How to Advise Your Client When Making Foreign Investments

Faculty

Antonia I. Tzinova

Antonia I. Tzinova

Holland & Knight LLP

  • Partner at Holland & Knight LLP, Washington, D.C. office
  • Practices in the areas of international trade and national security, foreign direct investment, and industrial security
  • Advises on defense and high-technology exports, U.S. trade embargoes and economic sanctions, and customs matters
  • Regularly represents clients before the Committee on Foreign Investment in the United States (CFIUS) and advises on measures to mitigate Foreign Ownership, Control, or Influence (FOCI) in cross-border mergers and acquisitions of U.S. government and defense contractors
  • Counsels foreign investors on structuring investments in the defense, high-tech and critical infrastructure sectors of the U.S. economy
  • Recent transactions include advising on a complex CFIUS mitigation measure in a foreign acquisition of an exterior envelope facades designer and manufacturer; and a CFIUS review of a sovereign wealth fund investment in a North American railroad depot services provider; she has also advised on measures to mitigate FOCI in portfolio investments by private equity firms in government contractors performing on classified contracts, as well as advising dozens of clients on whether and how to approach the CFIUS review issue
  • Regularly presents at various conferences on the topic of CFIUS national security reviews and export controls, recent presentations include Trade and National Security: The Role of CFIUS on Investment, panelist, The Association of Women in International Trade (WIIT), April 27, 2021; CFIUS Outlook Conference Call: Focus on Industries and Foreign Countries' Security Reviews, The Capitol Forum, February 4, 2021; Regulatory Landscape for Mergers and Acquisitions Involving Foreign Interest (CFIUS, ITAR, FIRRMA, and NISPOM), Society for International Affairs 2020 Fall Virtual Advanced Conference, October 26 - 28, 2020; Meet the Experts: Status of CFIUS, French American Chamber of Commerce webinar, March 19, 2020; Breakfast on the Status of CFIUS, panelist, British American Business Association Trade & Policy Committee, December 12, 2019; Regulatory Issues Every M&A Lawyer Should Consider When a Client Is Making an Inbound Investment in the U.S., ABA Business Law Section Annual Meeting, September 13, 2019
  • Written or contributed to many publications on CFIUS, recent articles include CFIUS Under Biden Will Quietly Keep Nose to the Grindstone, Law360, November 8, 2020; contributor; Trump’s TikTok Dance: The Politicization of American Business, Financial Times, September 21, 2020; contributor; TikTok is the Tip of the Iceberg for CFIUS’ Data Concerns, Law360, August 7, 2020; contributor; Filing Fees Are Here: CFIUS Establishes Fee Structure, Holland & Knight Alert, May 1, 2020; New CFIUS Regulations Finally Take Effect, Holland & Knight Alert, February 13, 2020; Foreign Ownership of Real Estate: New Rules from CFIUS, Real Estate Finance Journal, Winter 2020; FIRRMA Expands CFIUS Jurisdiction in 2 Major Ways, Holland & Knight Alert, August 16, 2018; Exclusive Q&A on Foreign Investment, Corporate LiveWire, May 5, 2016
  • Member of the District of Columbia and Maryland bars; the U.S. Court of International Trade; Society for International Affairs; and member of the Board of Governors of the Washington Foreign Law Society (WFLS), 2012—present, and president of WFLS, 2017-2020
  • J.D. and LL.M. degrees in International Law and International Affairs, Sofia University Law School (Bulgaria); J.D. degree with honors, The George Washington University Law School
  • Can be contacted at 202-419-2661 or [email protected]
Libby Bloxom

Libby Bloxom

Holland & Knight

  • Business attorney in Holland & Knight's Dallas office and a member of the firm's International Trade Group
  • Focuses practice on a broad range of international trade regulatory and transactional matters, including foreign direct investment, industrial security, export control, sanctions, and customs matters
  • Has experience handling commercial transactions in areas such as procurement and disposition, distribution, technology and intellectual property transfer, licensing and outsourcing of business processes and professional services primarily in the aviation, supply chain management, and transportation industries
  • Prior to rejoining Holland & Knight, was an attorney in the Dallas office of a national corporate law firm
  • Previously, was an attorney in Holland & Knight's Washington, D.C., office
  • During law school, Ms. Bloxom worked as a research assistant focused on tax policy and the efficiency of cross subsidization
  • Prior to law school, served as a Peace Corps Volunteer in Eswatini, where she lived and taught at the Siteki Primary School for the Deaf
Dariya V. Golubkova

Dariya V. Golubkova

Holland & Knight LLP

  • Member of Holland & Knight's International Trade Group
  • Practice comprises a broad range of international trade regulatory and transactional matters
  • Prior to joining Holland & Knight, served as a federal judicial law clerk to the Honorable Claire R. Kelly of the U.S. Court of International Trade
  • Worked on civil actions contesting determinations of the U.S. Department of Commerce, U.S. Customs and Border Protection (CBP), and U.S. International Trade Commission
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Staying Compliant With CFIUS and How to Advise Your Client When Making Foreign Investments

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