For foreign companies investing in the United States, as well as for the U.S.-based businesses that they seek to acquire, obtaining clearance from the Committee on Foreign Investment in the United States (CFIUS) — which reviews the national security implications of certain foreign investments in the United States — involves a process that can be complex and opaque. The International Trade Group at Crowell & Moring includes lawyers who know the CFIUS process inside and out — through representing companies in the CFIUS process and in sitting on CFIUS through prior government service — and understand what companies need to do to gain approval for their transactions.
For more than two decades, Crowell & Moring has helped numerous clients navigate the CFIUS process, gaining extensive experience in all aspects of CFIUS. Members of the firm have substantial experience in government, including serving as deputy assistant U.S. trade representative for investment, which involved sitting on CFIUS on behalf of the Office of the U.S. Trade Representative, and as counsel to the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC).
Under the Defense Production Act of 1950, as amended by the Foreign Investment and National Security Act of 2007 (FINSA), CFIUS is responsible for reviewing whether certain mergers, acquisitions, or takeovers of U.S. businesses by foreign persons could raise national security concerns. As national security imperatives have changed over the years, our lawyers have helped clients respond in kind. While many of the firm's initial engagements involved the defense and aerospace sectors, in recent years the U.S. Congress and agencies of the executive branch have demonstrated increased, broad interest in the national security implications of nearly every kind of foreign investment in the United States. In particular, as the concept of national security has expanded in recent years to include ideas such as "critical technologies" and "critical infrastructure," and as those ideas have been codified in the CFIUS statutory framework, we have helped companies across an increasingly broad range of industries navigate an evolving CFIUS process.
We counsel companies on identifying U.S. national security implications early in the consideration of potential transactions, on determining whether to submit a voluntary notice to CFIUS, on undertaking the filing process, and, ultimately, on managing the many formal and informal considerations involved in obtaining CFIUS clearance. Based on our lawyers' experience with CFIUS while in government service, and our long record of helping clients through the approval process, we have strong ties and solid relationships not only with CFIUS staff at the Department of the Treasury, which chairs CFIUS, but also with their counterparts at other key CFIUS agencies, such as the departments of Defense, Homeland Security, Commerce, and Justice. Having had the experience of being "at the table" during countless CFIUS reviews, we understand how different agencies view their roles and responsibilities on CFIUS, how they interact with one another in evaluating transactions, and, ultimately, how to approach the committee in a manner that builds a consensus of CFIUS agencies in favor of approval.