Page 78 - The CFIUS Book

THE CFIUS BOOK
l Other industries that collect personal information about individuals in the United States
5.3. Three trends in CFIUS enforcement
Considering the enforcement of CFIUS in recent years and the legislative changes, we expect the following trends in CFIUS enforcement in 2019:
1. Increased presidential review
Presidential review of CFIUS transactions has increased in recent years. That increase started before Donald Trump was elected on a campaign in which a central theme was the threat of foreign economic activity on the United States. That fact, combined with the increase in presidential review we have already seen and the expanded presidential authority under FIRRMA, strongly suggests there will be an increase of presidential review of transactions in the near future.
2. Increased use of blocking power
Related to increased presidential review, we expect an increase in the blocking of transactions in 2019. Already in 2017, there were an increased number of blocked transactions. Moreover, FIRRMA explicitly authorizes CFIUS to suspend certain covered transactions for the period of the review. In addition, FIRRMA expanded the review period and introduced more factors for CFIUS analysis. Both provisions are likely to lead to more blocked transactions.
3. More withdrawals and refilings
Also related to increased presidential review, we expect to see increased CFIUS scrutiny result in more withdrawals and refilings. This is because many parties may begin to question the likelihood of CFIUS clearance given the current political climate and the recent spotlight on the Committee’s review process. In some cases, that doubt may lead parties to withdraw and refile, in order to provide time to reassess the transaction, address structuring concerns, or consider mitigation agreements.
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