Getting CFIUS Approval for Investments From and Deals With Foreign Businesses
Recent Regulatory Changes, Controls, and Mitigation Agreements
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
International
- event Date
Thursday, January 19, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE course will guide counsel to U.S. businesses seeking and accepting foreign investments on the Committee on Foreign Investment in the United States (CFIUS) approval process. The panel will discuss what parties need to do to be well prepared to get CFIUS approval for investments and deals. The panel will examine the recently issued CFIUS regulations and the requirements for mitigation agreements, as well as offer best practices for CFIUS approval.
Ms. Mildorf has nearly 20 years of experience representing clients in Committee on Foreign Investment in the United States (CFIUS) and foreign ownership, control or influence (FOCI) mitigation matters. She also advises clients on the US Outbound Investment Security Program and in national security reviews before Team Telecom. Ms. Mildorf has advised clients on CFIUS issues in thousands of transactions covering a wide variety of industries and investor countries. She strategically guides clients through assessing national security risks for deals, transaction structuring and jurisdictional considerations, negotiation of deal terms, all stages of the CFIUS filing and review process, engagement with relevant government officials, CFIUS mitigation negotiation and implementation, CFIUS inquiries regarding non-notified transactions, and CFIUS enforcement actions. Ms Mildorf also has extensive experience representing clients in FOCI mitigation matters. She has negotiated, prepared, and advised regarding compliance with, and implementation of, numerous FOCI mitigation arrangements, including Special Security Agreements, Proxy Agreements, Security Control Agreements, and FOCI Board Resolutions.
Mr. Boylan has more than 30 years of experience in advising public- and private-sector organizations on a broad range of international legal and business issues, including trade compliance, investment security and government contracting. He has been involved in all aspects of the Committee on Foreign Investment in the United States (CFIUS), from negotiating mitigation agreements for the government, sellers and buyers to establishing and leading compliance protocols for mitigated companies.
Mr. Brady practices in the firm’s Global International Trade group and is a member of the firm’s Foreign Direct Investment Reviews & US National Security/CFIUS practice. A former government official, he most recently served as Deputy General Counsel at the Department of the Treasury, where his responsibilities included managing significant oversight and investigations matters and providing legal and strategic counsel on a wide variety of issues about international affairs (including CFIUS), enforcement and intelligence (including sanctions and AML), banking and finance, and tax. He also previously held other senior-level positions in the federal government, including Associate Counsel to the President in the White House Counsel’s Office and Executive Secretary at the Treasury Department. Earlier in his career, he was an associate at White & Case, where his practice focused on government and internal investigations, corporate compliance matters, and complex civil litigation. His experience includes representing domestic and foreign clients in cases involving corruption, money laundering, fraud, and collusion.
With recent regulatory changes and heightened attention on national security, CFIUS continues to be a hurdle for cross-border M&A and counsel involved in cross-border deals should consider what it takes to get CFIUS approval as they structure these deals.
For example, U.S.-China relations have been a political hot topic over the last few years and have resulted in heightened scrutiny of Chinese investment in U.S. businesses--including a number of failed deals. However, this does not preclude deals from getting approved.
CFIUS approval for deals may require some mitigation in order to address national security concerns. The review process may also involve parallel mitigation processes. For example, deals involving foreign investment in a cleared government contractor that handles classified information typically requires a mitigation agreement with the Defense Counterintelligence and Security Agency (DCSA). Certain telecom transactions may also require mitigation conditions on Federal Communications Commission licenses. Anticipating and preparing for mitigation requirements is a key component of effective cross-border deal planning.
Companies and their counsel must anticipate potential CFIUS and other national security regulatory concerns and be prepared to structure successful deals that meet the parties' goals for the transaction.
Listen as our authoritative panel of CFIUS counsel examines what parties need to do to be well prepared to get CFIUS approval for investments and deals. The panel will examine the recently issued CFIUS regulations, related national security regulatory processes, and issues pertaining to mitigation agreements. The panel will offer best practices for getting investments/deals approved by CFIUS.
- FIRRMA and recent CFIUS regulations
- CFIUS trends and strategic considerations
- CFIUS mitigation agreements
- FOCI mitigation and team telecom considerations
- Best practices for being prepared
The panel will review these and other key issues:
- What steps can counsel take to anticipate CFIUS concerns?
- How can counsel identify and analyze potential mitigation pitfalls that could impact the deal?
- What best practices should counsel employ to evaluate the inclusion of controls and mitigation in the transaction structure?
