Morgan Lewis lawyers have advised clients on crucial issues related to the review of cross-border investments for national security reasons since 1988, when such review by the Committee on Foreign Investment in the United States (CFIUS) became a more established process. Morgan Lewis's CFIUS team brings depth, breadth, and focus to CFIUS reviews, identifying the critical issues that can make or break these transactions.
We regularly counsel US and non-US clients on the intricacies of the foreign direct investment (FDI) review process in the United States and consistently advise on the more global impact that CFIUS reviews may have on cross-border investments. Working seamlessly across jurisdictions, we help clients evaluate and manage complex—and sometimes conflicting—national security requirements in the United States and in other countries conducting national security reviews.
Our CFIUS practice focuses on the full life-cycle of cross-border investments, from due diligence and documentation to engagement with CFIUS government agency members and preparation of CFIUS submissions. This comprehensive approach is based on the depth of our CFIUS lawyers’ backgrounds and draws on their decades of experience. We provide strategic, practical advice on the sensitive issues and business considerations that impact the decision of whether, when, and how to engage with CFIUS or submit a notice.
As a comprehensive practice, we cover the full range of issues and requirements associated with the CFIUS process, including the following:
Our CFIUS team includes former government, military, and corporate practitioners who have a unique understanding of the interrelationships that exist among investments, national security, and related equities—seasoned technical practitioners who support the essential export controls analysis necessary to virtually every CFIUS matter.
Our team includes the former acting chief of the US Department of Justice’s Foreign Investment Review Section, as well as lawyers who have served in the US Marine Corps and US Navy and who have been appointed to Federal Advisory Committees directly engaged with advising the US Departments of Defense, State, and Commerce on CFIUS-related issues, including export controls.
This deep bench has experience in all phases of the CFIUS process across a range of industries (from high tech and emerging technology to aerospace, finance, and real estate). Based on the insights gained from decades of engagement in the process, we excel in the development of creative solutions to address CFIUS’s risk assessments while ensuring that transactions can clear the CFIUS process expeditiously and align with both industry and government interests.
Our lawyers are recognized subject matter authorities. Our team members sit on various federal government advisory committees in the national security field, have testified before the US Congress on the most recent legislative changes embedded in the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA), and directly participated in developing the implementing regulations for FIRRMA. We have also been called upon to serve as subject matter experts in CFIUS-related studies conducted by the Government Accountability Office, Council on Foreign Relations, and Center for Strategic and International Studies.
Over the course of the last 10 years, members of our CFIUS practice have handled more than 100 CFIUS submissions, consulted on hundreds of transactions, and advised clients on how to assess the risks and benefits associated with CFIUS filings and engagement.
Our comprehensive approach, which starts when an investment is first considered, results in the management of CFIUS challenges, an assessment of where issues may arise, and a focus on minimizing unexpected CFIUS concerns, all of which contribute to deal certainty in an environment where the government’s decisions are not always known.
With experience handling matters before CFIUS and the individual member agencies, including the US Departments of Justice, State, Commerce, Treasury, Homeland Security, Energy, and Defense, we bring a nuanced perspective to identifying national security concerns and managing government expectations.
Morgan Lewis remains unique in its ability to manage all aspects of national security issues, from classified to unclassified. We bring a detailed understanding of the US government’s approach to national security issues—whether in the CFIUS, export controls, sanctions, or other government process arena—and marry that understanding with the knowledge of our transactional colleagues to provide cogent, consistent, and practical advice.
In the CFIUS context, when national security issues arise, our lawyers have experience developing and negotiating mitigation agreements, identifying deal areas where mitigation may be needed, and working with relevant agencies—in particular, the US Departments of Defense and Justice, as well as the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector (formerly known as Team Telecom)—to move a deal to closure. We actively assist with mitigation agreement management and compliance, helping clients navigate mitigation requirements once a deal clears CFIUS or Team Telecom. This includes working with remediation or technical consultants retained to assist our clients’ implementation of specific technical mitigation strategies required as a condition of clearance.
Our approach provides deal efficiencies and certainty to an amorphous process and highlights the strategic capabilities we bring to any cross-border investment. We do not, however, take a cookie-cutter approach to CFIUS reviews—we strategize as partners with our clients to develop and implement effective approaches for each transaction.
We advise on cross-border issues that arise under other countries’ FDI review regimes. The United Kingdom, Canada, Australia, Japan, Germany, China, and the European Union maintain FDI review frameworks that can affect how deals are structured and where filings may need to be made. We have handled some of the initial FDI national security filings made under recent FDI laws in France, Japan, Germany, and the United Kingdom.
As with cross-border antitrust filings, our CFIUS team considers the implications of all jurisdictions where issues may arise and works closely with Morgan Lewis colleagues around the globe. As cross-border investments increase in complexity, and US allies, non-US allies, and partners enhance their FDI national security review regimes, we provide the holistic advice needed to identify, address, and remediate issues in a number of jurisdictions.