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CFIUS & Foreign Investment

Contacts

Stephan E. Becker
Partner, Washington, DC
T: +1.202.663.8277
Nancy A. Fischer
Partner, Washington, DC
T: +1.202.663.8965
Christopher R. Wall
Partner, Washington, DC
T: +1.202.663.9250
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Pillsbury’s International Trade practice lawyers are recognized leaders in advising both U.S. and non-U.S. clients on the regulation of foreign investment in the U.S.

Pillsbury’s International Trade lawyers regularly assist U.S. and non-U.S. companies in making submissions to the Committee on Foreign Investment in the United States (CFIUS), responding to government questions, and negotiating “mitigation agreements” terms when CFIUS seeks to impose conditions on foreign acquisitions of U.S. entities. Drawing on extensive experience across a broad range of regulatory systems, we provide comprehensive guidance, navigating clients through the complex interaction of multiple areas of regulation and compliance often involved in CFIUS reviews.

We advise on foreign investments in the U.S., handle CFIUS notifications under the Defense Production Act of 1950, as amended, and we represent clients in complex, high-profile investigations. Our lawyers are experienced in matters involving government control, highly sensitive technologies, intricate regulatory regimes, transportation, communication and energy infrastructure, and cleared companies. We assist with security clearances and advise on the impact of the “foreign ownership, control, or influence” (FOCI) rules of the National Industrial Security Program Operating Manual (NISPOM) and similar FOCI rules administered by the U.S. Department of Energy (DOE) for nuclear restricted data. Additionally, we regularly assist non-U.S. clients in structuring their U.S. operations to minimize the impact of FOCI mitigation rules on their businesses.

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Our lawyers help clients anticipate issues that the Department of Defense’s Defense Counterintelligence and Security Agency (DCSA)DCSA (formerly DSS) may have and propose solutions based on our extensive prior experience negotiating with DCSA. We advise on potential proxy holders or outside directors to ensure that the business model is successful and help clients when structuring the control plans (Electronic Communications Plan, Technology Control Plan and Board-approved operating procedures) required by DCSA in a way that optimizes the U.S. entity’s and foreign parent’s ability to communicate on routine business functions.

Representative Experience

  • Successfully advised a European government-owned aerospace corporation on foreign ownership restrictions, involving extensive negotiations with DCSA, CFIUS and the State Department. Assisted with the Technology Control Plan and Electronic Communications Plan and the Special Security Agreement.
  • Advised an Australian-owned investment bank in connection with at least 15 CFIUS filings, including the first port transaction in the wake of the Dubai Ports World controversy.
  • Represented a Japanese multinational corporation in acquiring a large U.S. entity involved in activities regulated under the International Traffic in Arms Regulations (ITAR). Assisted in the negotiation of a mitigation agreement with CFIUS and in satisfying requirements imposed by the Directorate of Defense Trade Controls (DDTC) in connection with the pre-notification requirements of the ITAR.

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  • Semiconductors
    • Represented a Japanese investor through both the declaration and notice process in connection with a minority investment in a U.S. semiconductor company.
    • Counseled a U.S. semiconductor company on CFIUS issues related to the proposed acquisition by a multinational publicly traded Swedish entity.
    • Advised a U.S.-based semiconductor company on CFIUS matters in connection with the proposed strategic investment from a Chinese partner.
    • Advised a U.S. semiconductor company on CFIUS matters in connection with potential foreign investments, including whether particular investments may be considered covered transactions.
    • Assisted a U.S.-based investment fund regarding a post-transaction CFIUS inquiry.
    • Counseled an investment fund with global investor base on CFIUS implications of multiple investments across a variety of funds. Provided guidance on fund structure and requirements in light of the recently enacted CFIUS pilot program.
    • Assisted a Chinese investor group in connection with potential acquisition of U.S. semiconductor company, including in-depth discussions and negotiations with CFIUS regarding potential mitigation options.
    • Successfully navigated the CFIUS review process for a Chinese government-owned client in acquiring a global semiconductor equipment provider. Advised our client on structural and other corporate transactional matters to minimize potential national security concerns. Obtained CFIUS approval on behalf of a U.S. semiconductor manufacturer in connection with acquisition by an Israeli company. Negotiated Department of Defense (DOD) mitigation agreement and helped achieve compliance with that agreement. Provided regulatory counseling to a group of Chinese investors in a potential acquisition of a semiconductor company. Advised our client on transaction structure to address potential CFIUS issues and successfully obtained CFIUS clearance.
    • Represented a Japanese investor through both the declaration and notice processes in connection with a minority investment in a U.S. semiconductor company.
    • Assisted a U.S.-based semiconductor company to evaluate CFIUS risks of potential investors and engaged CFIUS in a pre-notice consultation.
    • Advised a seller of power management integrated circuits for consumer electronics in connection with CFIUS review of potential acquisition by a Chinese-owned joint venture, and successfully obtained CFIUS clearance.
    • Provided a U.S.-based semiconductor company with CFIUS risk assessment of potential foreign investors. Assisted the company with CFIUS filing in connection with potential acquisition by a Japanese company.
    • Advised an Asian-based buyer in the potential acquisition of a U.S.-based semiconductor manufacturer. Advised the buyer on how structural changes to the transaction might impact the CFIUS review process. Conducted due diligence concerning the export control classifications of the seller’s product lines.
    • Advised a Japanese investment firm participating as a consortium partner in connection with the proposed acquisition of a large semiconductor company. This matter focused particularly on minority investments and share purchase agreement negotiation.
  • Technology & Information Technology
    •  Counseled and assisted a U.S. company on CFIUS matters in connection with acquisition of a foreign technology company. This matter presented unique CFIUS issues as the foreign seller could potentially obtain an ownership interest in the U.S. buyer as compensation for the transaction.
    • Assisted a U.S.-based technology company with CFIUS notification related to investment by a large Japanese financial institution, and related advice concerning a proposed joint fund.
    • Represented a foreign retail exchange dealer in connection with its proposed acquisition by a private equity firm. The transaction involved an analysis of potential national security concerns in connection with access to consumer personal financial information in combination with the proposed acquisition by a private equity firm with certain Asia-based funds.
    • Counseled dozens of U.S. and non-U.S.-based emerging technology companies on implications of new CFIUS pilot program.
    • Provided CFIUS guidance to a potential acquirer of a U.S. technology company subject to a National Security Agreement with CFIUS.
    • Assisted a Japanese company regarding CFIUS implications on a proposed IP assignment and technology transfer agreement.
    • Assisted a Chinese company with CFIUS filing in connection with potential acquisition of U.S.-based provider of optical circuit switches.
    • Successfully obtained CFIUS approval for a U.S.-based seller of technical surveillance solutions by a UK-based buyer. Assisted the seller in conducting a review of its U.S. government contracts and advised on potential FOCI concerns.
    • Advised a large Japanese trading company on CFIUS matters in connection with a proposed joint venture with a defense company. Conducted risk assessments and counseled on various other investments, including implications under the CFIUS pilot program.
    • Counseled an India-based partnership entity on CFIUS matters in connection with investment in a U.S.-based technology company.
    • Assisted a U.S. company that was being purchased by a UK company in defending its ability to maintain its clearance despite the foreign company’s decision to move forward with closing before DCSA had reviewed and approved interim FOCI mitigation procedures. Convinced DCSA that interim FOCI mitigation procedures could be established quickly and worked with the companies and DCSA to achieve that. Prepared mitigation procedures acceptable to DCSA and obtained approval for the proposed proxy holders.
    • Successfully obtained CFIUS approval on behalf of a U.S. IT services provider in its acquisition by an Australian company, obtaining CFIUS approval and proposing a Special Security Agreement (SSA) with DCSA to mitigate FOCI.
    • Successfully obtained CFIUS approval for a U.S.-based cloud contact center software firm. Assisted the seller in conducting a review of its export control classifications and procedures in order to facilitate the CFIUS review process and enhance the company’s export compliance.
    • Assisted a Chinese company with CFIUS issues in connection with potential acquisition of a U.S.-based technology company.
  • Manufacturing
    • Prepared CFIUS assessment for a German entity with significant Chinese shareholders in connection with the proposed acquisition of a U.S.-based automotive supplier.
    • Conducted CFIUS assessment and advised on transaction structure in connection with a potential acquisition by a Chinese state-owned entity of a German manufacturing entity with a U.S. subsidiary.
    • Represented a Japanese multinational corporation in acquiring a large U.S. entity involved in activities regulated under the ITAR. Assisted in the negotiation of a mitigation agreement with CFIUS and in satisfying requirements imposed by the DDTC in connection with the pre-notification requirements of the ITAR.
    • Successfully obtained CFIUS approval on behalf of a U.S.-based manufacturer/distributor of chemicals and diagnostics products regarding an acquisition by a China state-owned enterprise. Assisted the seller in conducting a comprehensive review of its export control compliance matters and its sales to various U.S. government agencies to facilitate CFIUS review process.
    • Advised a Chinese-based manufacturing client, ultimately owned by the Chinese government, to navigate the CFIUS process and address concerns regarding potential business in sanctioned countries and the impact that may have on acquiring a U.S. company.
    • Represented an Italian company on CFIUS matters in connection with its acquisition of a U.S. testing company, including detailed analysis of potential application of the CFIUS pilot program.
    • Assisted a U.S. construction company prepare and submit CFIUS filing in connection with potential foreign acquisition by an Australian company.
    • Assisted a U.S. technology company in obtaining CFIUS clearance for its purchase by Spanish investors.
    • Prepared CFIUS assessment for a German entity with significant Chinese shareholders in connection with the proposed acquisition of a U.S.-based automotive supplier.
  • Telecommunications
    • Assisted a subsidiary of a German-based entity with the acquisition of a DOD-cleared satellite communications contractor. The representation included filing a notification with CFIUS as well as FOCI mitigation arrangements with DOD.
    • Successfully represented a U.S. satellite communications company in connection with an acquisition by an Australian global communications company. This matter involved comprehensive representation before multiple U.S. government agencies, including CFIUS, DCSA, DDTC and the FCC. We successfully obtained clearance from CFIUS, and we helped the company set up FOCI mitigation instruments acceptable to DCSA, such as a Proxy Agreement, an Affiliated Operations Plan, a Technology Control Plan and an Electronic Communications Plan.
    • Successfully advised a foreign government-owned satellite corporation based in Europe on the foreign ownership restrictions implicated by the DCSA and CFIUS. Extensive negotiations with DCSA, CFIUS and the State Department were required to achieve a successful outcome. Assisted the company with the necessary Technology Control Plan and Electronic Communications Plan and advised the client on an ongoing basis regarding compliance with the Social Security Administration (SSA). Worked with the company and a specialized board search firm to identify key board members to serve as outside directors.
    • Advised a radio station owner in connection with asset acquisition by a Chinese-owned buyer.
  • Financial
    • Monitored and counseled a major Japanese financial institution regarding proposed legislative changes to the CFIUS review process.
    • Advised an Australian-owned investment bank on multiple CFIUS matters, including acquisitions of various U.S. businesses.
    • Advised a global hedge fund on how CFIUS review and U.S. policy could impact sensitive mergers and acquisitions.
    • Advised an Australian-owned investment bank in connection with at least 15 CFIUS filings, including the first port transaction in the wake of the Dubai Ports World controversy.
    • Advised various private equity groups on their acquisitions of cleared companies on CFIUS issues and to ensure that the FOCI level was at or below the level that would require a Special Security Agreement (SSA) or Proxy Board.
    • Provided analysis and assessment of CFIUS regulations for Chinese-based entities.
    • Conducted FCPA due diligence for a private equity firm’s potential acquisition of spinoff of a major defense contractor.
  • Energy
    • Monitored and counseled a major U.S. energy company regarding proposed legislative changes to the CFIUS review process.
    • Assisted a Japanese gas company filed with CFIUS in connection with its proposed acquisition of a natural gas-fired combined cycle cogeneration plant in the U.S.
    • Represented a major U.S. energy company in successful defense against foreign takeover of U.S. energy firm.
    • Acted as CFIUS counsel to a South Korean company regarding a pilot program investment in a U.S. nuclear energy company.
    • Represented a state-owned Middle Eastern entity in its acquisition of a majority interest in a liquefied natural gas terminal.
    • Advised a foreign company regarding CFIUS issues in connection with a U.S. wind farm transaction.
    • Advised a nuclear engineering firm on possible FOCI mitigation agreements acceptable to the DOE to maintain or obtain facility clearance where the company was foreign owned and controlled.
  • Real Estate
    • Assisted a Chinese state-owned enterprise to obtain CFIUS clearance with no required mitigation in connection with the acquisition of an interest in a joint venture real estate development project.
  • Security Services
    • Successfully advised a European government-owned aerospace corporation on foreign ownership restrictions involving extensive negotiations with DCSA, CFIUS and the State Department. Assisted with the Technology Control Plan and Electronic Communications Plan and the Special Security Agreement (SSA).
    • Assisted a U.S. security screening company obtain CFIUS clearance in connection with potential foreign acquisition. Advised the company on compliance with related notifications to other U.S. agencies, including DCSA.
    • Advised a Japanese logistics company in connection with CFIUS issues associated with the acquisition of a U.S. transportation and logistics company.
    • Advised multiple companies in connection with foreign acquisitions on compliance with the DCSA and CFIUS rules and process. Assisted clients with the E-FCL process to submit personal clearances for their employees and proposed outside director candidates, as well as SF328 and other DSS required information and forms.
  • Life Sciences
    • Successfully obtained CFIUS approval on behalf of a U.S.-based manufacturer and distributor of life sciences, fine chemical and diagnostics products in connection with an acquisition by a wholly owned subsidiary of a China state-owned enterprise. We assisted the seller in conducting a comprehensive review of its export control compliance matters and its sales to various U.S. government agencies in order to facilitate the CFIUS review process.

Practice Area Highlights

  • Pillsbury’s International Trade practice is nationally ranked by Chambers USA and internationally recognized by Chambers Global for our Export Controls & Economic Sanctions, CFIUS, and Trade Remedies & Trade Policy work.
  • Pillsbury received U.S. News/Best Lawyers recognition for International Trade & Finance.
  • Recognized in 2024 by The Legal 500 U.S. for the breadth of our International Trade capabilities across three categories: CFIUS; Customs, Export Controls and Economic Sanctions; and Trade Remedies and Trade Policy. Client testimonial hails the Pillsbury International Trade team as “…a well-unified, collaborative team that leverages each other’s knowledge based to demonstrate ‘big picture’ understanding as well as specialized advice within categories of issues.”

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