Two years ago, regulations implementing the Foreign Investment Risk Review Modernization Act (FIRRMA) went into effect, significantly expanding the jurisdiction of the Committee on Foreign Investment in the United States (CFIUS) and introducing other notable changes. To assist with navigating this complex regulatory framework, we introduced the CFIUS FIRRMA Tool, which provided a step-by-step analysis of a contemplated transaction in order to assist users in determining how FIRRMA would apply to their transaction. We are now pleased to introduce the CFIUS FIRRMA Tool 2.0, which has a refreshed look and adds standalone functions to greatly enhance the tool’s utility for investors and industry.
White & Case CFIUS FIRRMA Tool 2.0
As we previously reported, FIRRMA’s implementing regulations became effective on February 13, 2020, and significantly expanded CFIUS’s jurisdiction. Since then, CFIUS has experienced an unprecedented increase in filings as FIRRMA has captured more transactions, with many investors and businesses finding their transactions within the scope of CFIUS’s jurisdiction. In addition, as we reported last year, CFIUS has substantially increased its efforts to identify and review non-notified transactions of interest, raising the stakes for investors with investments subject to CFIUS jurisdiction.
To help investors and industry manage this significant risk, the White & Case CFIUS Tool 2.0 provides an online, step-by-step analysis of a contemplated transaction in order to assist users in determining whether the transaction could be subject to CFIUS's jurisdiction under FIRRMA and if mandatory filing requirements would apply. In addition, the tool now offers standalone functions to determine whether a target business qualifies as a TID US business (i.e., a US business dealing in critical technologies, critical infrastructure, or sensitive personal data), and to determine whether a foreign investor qualifies as an excepted investor (i.e., an investor with certain nationality requirements who may be exempt from CFIUS’s expanded jurisdiction or mandatory filing requirements). As before, the tool’s full jurisdictional assessment includes an embedded TID US business assessment and assists in determining whether CFIUS may have jurisdiction to review a voluntary filing or whether a filing may be mandatory. The standalone TID US business function focuses solely on the key jurisdictional question of whether the target business is a TID US business, which has important implications regarding whether the parties to a transaction must or should submit a CFIUS filing. The standalone excepted investor function focuses solely on whether the foreign investor is an excepted investor, which may exempt the transaction from certain portions of the CFIUS regulations.
The potential penalties for failing to comply with FIRRMA are significant—including potentially up to the value of the transaction for failure to satisfy mandatory filing requirements. Therefore, an accurate and thorough jurisdictional analysis is critical to any transaction possibly within FIRRMA’s scope. To that end, our CFIUS FIRRMA Tool 2.0 continues to guide the user through the essential elements of CFIUS’s jurisdiction under both FIRRMA’s investment regulations and its real estate regulations in order to assist the user in determining whether the transaction could fall within the scope of CFIUS’s jurisdiction, and its enhanced functionality offers quick guidance on key threshold jurisdictional questions. Please note that the CFIUS FIRRMA Tool 2.0 is intended as a guide for informational purposes only—it is not a substitute for legal advice, does not constitute legal advice, and does not provide a conclusive determination. Further, this tool is subject to change based on regulatory changes and further guidance from CFIUS. Users should engage CFIUS counsel to discuss regulatory compliance with specific transactions.
Brittany Henderson (White & Case, Law Clerk, Americas Competition - Trade, Washington D.C.) contributed to the development of this publication.
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