Impact of FIRRMA on Private Equity Funds: Expanded CFIUS Review of Foreign Investments, New Filing Requirements

Structuring Investments to Minimize CFIUS Risk

Recording of a 90-minute CLE webinar with Q&A


Conducted on Wednesday, October 17, 2018

Recorded event now available

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Program Materials

This CLE webinar will examine the impact of newly enacted CFIUS reforms on private investment funds. The panel will discuss the regulatory hurdles and filing requirements created under the Foreign Investment Risk Review Modernization Act (FIRRMA) and how best to structure foreign investments in private equity and other investment funds to minimize CFIUS risk.

Description

FIRRMA, included as part of the National Defense Authorization Act for Fiscal Year 2019 (NDAA), was signed into law in August 2018. It expands CFIUS oversight beyond controlling transactions to a more nuanced category of non-controlling transactions with foreign entities. Going forward, private equity firms must carefully examine the level and nature of foreign ownership in a broader range of investments in U.S. companies.

CFIUS will have approval authority over non-controlling investments in companies involved with critical technology, critical infrastructure and sensitive data regarding U.S. persons. It will also have authority to review changes in investor rights that could lead to a covered transaction as well as certain real estate transactions and transactions that evade or circumvent CFIUS jurisdiction.

Subject to the satisfaction of specific management control and other criteria, foreign limited partners in private equity, venture capital, and hedge funds can qualify for an exclusion from CFIUS jurisdiction. Counsel must have a thorough understanding of the types of foreign investment that are and will be subject to review, and exemptions available to funds whose foreign investments meet exemption criteria.

In addition, FIRRMA changes the CFIUS regime from a voluntary system to one where filings will be mandatory in certain circumstances. Such filings must be made for transactions where a foreign government acquires a “substantial interest” in a U.S. business. CFIUS may also require mandatory filings for investments in U.S. companies involved in certain critical technologies.

Listen as our authoritative panel discusses these and other reforms to CFIUS procedures and authority under FIRRMA, and the implications of those reforms for the structuring of private equity funds and joint ventures involving foreign investors.

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Outline

  1. CFIUS: Authority before recent reform; M&A review
  2. FIRRMA: Policy concerns with other types of foreign investment
  3. Expanded CFIUS authority
    1. Non-controlling investments in companies involved in critical technology, critical infrastructure and sensitive personal data
    2. Deals involving real estate in close proximity to sensitive U.S. government facilities and air or sea ports
    3. Changes in investor rights that would result in control of a U.S. business or a covered non-controlling investment
    4. Transactions intended to evade or circumvent
  4. Carve-outs for investment funds
  5. Mandatory and voluntary declarations
  6. Other significant changes

Benefits

The panel will review these and other high priority issues:

  • How does FIRRMA expand CFIUS’s authority to review foreign investment in the United States?
  • What types of investment are of most concern to CFIUS under the new regime?
  • How should investment funds respond to this new law?

Faculty

Davis, Christian
Christian C. Davis

Partner
Akin Gump Strauss Hauer & Feld

Mr. Davis’ practice focuses on U.S. law and policy affecting international trade and business. He advises clients...  |  Read More

Kaniecki, Chase
Chase D. Kaniecki

Atty
Jones Day

For nearly 10 years, Mr. Kaniecki has helped clients achieve their goals in and navigate complex issues associated with...  |  Read More

Mancuso, Mario
Mario Mancuso, P.C.

Partner
Kirkland & Ellis

Mr. Mancuso leads the firm’s International Trade and National Security Practice. A former senior member of the...  |  Read More

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