Category Archives: Committee on Foreign Investment in the United States (CFIUS)

Continuity and Change at the Intersection of National Security and Corporate Crime

by Marshall L. Miller

Photo of the author

Photo courtesy of the author

Much recent attention has centered on shifts in approach at the Department of Justice in the new Administration, but one area where we should expect as much continuity as change is at the intersection of corporate crime and national security. 

During two separate leadership stints at the Department of Justice, I oversaw corporate criminal enforcement—from 2014 to 2015 and again from 2022 to 2024.  The difference was night and day.  Where national security prosecutions were corporate crime outliers in the mid-2010s, by 2022 they represented a majority of DOJ’s major corporate criminal resolutions.  And then the number doubled from 2022 to 2023. Early signals indicate that national security will be a continued area of white-collar focus in 2025 and beyond.

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President Trump Issues “America First Investment Policy” Presidential Memorandum

by Jeffrey P. Bialos, Ginger T. Faulk,  Mark D. Herlach, and Nicholas T. Hillman

Photos of the Authors.

From left to right: Jeffrey P. Bialos, Ginger T. Faulk, Mark D. Herlach, and Nicholas T. Hillman. Photos courtesy from Eversheds Sutherland.

On February 21, 2025, President Trump issued a memorandum titled “America First Investment Policy” (the “Investment Memo” or “Memo”), in which the President aims to modify the U.S. Government’s approach to inbound and outbound foreign investment to address national security threats.

The Investment Memo reconfirms the United States’ longstanding commitment to open investment to encourage domestic development of key advanced technologies and takes steps to streamline investments by trusted allies and partners.  Among other things, it seeks to establish the “fast tracking” of certain investment and environmental reviews and seeks to minimize the use of “open ended” mitigation agreements.

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The CFIUS Colossus: CFIUS’s Expanding Authority Changes the Risk Calculus for M&A Transactions

by Stephenie Gosnell Handler, Michelle Weinbaum, Mason Gauch, and Chris Mullen

Photos of the authors

Left to right: Stephenie Gosnell Handler, Mason Gauch, and Chris Mullen. (Photos courtesy of Gibson Dunn & Crutcher LLP)

A new final rule from the U.S. Department of the Treasury will expand CFIUS’s authority to request information from parties related to a transaction, increases potential penalty amounts, and expedites mitigation agreement negotiations in certain situations. With the exception of modifying the time frame within which parties are required to respond to mitigation agreement proposals, CFIUS largely adopted the language of its April 2024 proposed rule.

On November 18, 2024, the U.S. Department of the Treasury (“Treasury”), as Chair of the Committee on Foreign Investment in the United States (“CFIUS” or “the Committee”) issued a final rule largely codifying a rule proposed in April 2024, with only a handful of small, yet meaningful, changes. As noted in the accompanying press release, the final rule: Continue reading →

Biden Administration Releases Proposed Rule on Outbound Investments in China

by Paul D. Marquardt and Kendall Howell

Photos of authors

From left to right: Paul D. Marquardt and Kendall Howell (Photos courtesy of Davis Polk & Wardwell LLP)

The Biden administration released its proposed rule that would establish a regulatory framework for outbound investments in China, following its advanced notice of proposed rulemaking released last August.

On June 21, 2024, the U.S. Department of the Treasury (Treasury) released its long-awaited notice of proposed rulemaking that would impose controls on outbound investments in China (the Proposed Rule). The Proposed Rule follows Treasury’s advanced notice of proposed rulemaking (the ANPRM) released in August 2023 (discussed in this client update) and implements the Biden administration’s Executive Order 14105 (the Executive Order), which proposed a high-level framework to mitigate the risks to U.S. national security interests stemming from U.S. outbound investments in “countries of concern” (currently only China). Like the Executive Order and ANPRM, the Proposed Rule reflects an effort by the Biden administration to adopt a “narrow and targeted” program and is in large part directed at the “intangible benefits” of U.S. investment (e.g., management expertise, prestige, and know-how), rather than capital alone.[1]

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CFIUS Issues First-Ever Enforcement and Penalty Guidelines

by Ryan Fayhee, Roy Liu, Tyler Grove, Anna Hamati, John Hannon, and Marcus Yu.

On October 20, 2022, the U.S. Department of the Treasury, as chair of the Committee on Foreign Investment in the United States (“CFIUS”), released the first-ever CFIUS Enforcement and Penalty Guidelines. CFIUS’s mandate is to identify and mitigate national security risks while maintaining the U.S.’s open foreign investment environment. Frequently it enters into mitigation agreements with parties to transactions; at other times it imposes mitigation conditions or orders (“CFIUS Mitigation”). These Guidelines provide the public with information on how the Committee assesses violations of the laws and regulations that govern relevant transactions, including violations of CFIUS mitigation agreements.

Specifically, the Guidelines describe three categories of conduct that may constitute a violation of an entity’s CFIUS obligations, the process the Committee generally follows in imposing penalties, and some of the factors it considers in determining whether a penalty is warranted and the scope of any such penalty, as well as the importance of self-disclosure of any conduct that may constitute a violation. The CFIUS authorizing statute, Section 721 of the Defense Production Act of 1950 (Section 721), allows CFIUS to impose monetary penalties and seek other remedies for violations of Section 721, the CFIUS regulations, and any mitigation orders, conditions, or agreements imposed by CFIUS. The Guidelines also highlight that CFIUS may use its subpoena authority to compel information from parties, and that CFIUS may also refer prohibited conduct to other U.S. government authorities, which may result in additional civil and/or criminal enforcement penalties depending on the nature of the misconduct. Continue reading →

How Final CFIUS Regulations Will Impact Technology Companies and Investors

by Les P. Carnegie, John H. Chory, Benjamin A. Potter, Rachel K. Alpert, and Erica S. Koenig

On February 13, 2020, two Final Rules published by the US Treasury Department implementing changes to the foreign investment review process administered by the Committee on Foreign Investment in the United States (CFIUS) became effective. The Final Rules include provisions pertaining to certain investments in the United States by foreign persons (PDF: 479 KB), as well as provisions pertaining to certain transactions by foreign persons involving real estate in the United States (PDF: 406 KB). This post provides an overview of the areas of the Final Rules that may affect technology companies and their investors.[1]

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