Arnold & Porter LLP has extensive experience assisting both US and foreign companies in transactions subject to review by the Committee on Foreign Investment in the United States (CFIUS) pursuant to the 1988 Exon-Florio statute, as amended by the Foreign Investment and National Security Act of 2007 (FINSA). A number of our lawyers have worked on CFIUS matters as senior officials in the US government. They bring to our team insight into and experience with the review process. Our assistance to clients starts with advising on whether to seek a CFIUS review. Where a decision to seek review is made, we assist in preparing submissions to and working with CFIUS and its member departments and agencies. In addition, as is so often key to a successful CFIUS review and closing of a deal, we work with clients in educating Members of Congress, and, when appropriate, the media, about the benefits of the transaction. We have taken numerous transactions through successful CFIUS reviews, both for foreign and domestic clients, in a variety of industries where Exon-Florio was potentially a major hurdle to a transaction. We also assist clients in coordinating Exon-Florio reviews with antitrust, export control, securities, and other regulatory processes.
In cases involving government contractors that deal with classified information, the CFIUS review process includes ensuring that the planned foreign investment will be in full accord with the industrial security regulations of the US Department of Defense (DOD). Those regulations impose special security obligations on government contractors working with classified information or technology if they become subject to foreign ownership, control, or influence (FOCI). On behalf of numerous clients, we have worked on a variety of arrangements to enable US companies that will become subject to FOCI, to retain or obtain work for the US government involving classified information. This typically involves negotiating specific agreements with the Defense Security Service (DSS), often in tandem with the CFIUS review process. When CFIUS has been under a deadline to make a decision within a short timeframe, we have often had to work very rapidly with our clients and DSS to ensure that the Exon-Florio review process would not be derailed by FOCI concerns. The successful negotiation of FOCI "mitigation" arrangements is often the linchpin to obtaining CFIUS approval without the need for an extensive Exon-Florio investigation.
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