Featured Publications

Labor, Employment and Benefits: Alert - February 6, 2012

The U.S. Supreme Court recently denied an employer’s request for review of a decision by the U.S. Court of Appeals for the Eighth Circuit, which held that tipped employees spending more than 20 percent of their time performing related but non-tipped duties must be paid the full minimum wage for that time, without the tip credit.

More

Construction: Alert - January 30, 2012

For almost 50 years, lessors have had the ability to limit their liability for liens that arose from improvements to the leasehold made by a lessee. However, in the most recent legislative session, the Florida Legislature enacted revisions to Florida Statute § 713.10 that provide a potential pitfall for lessors by inserting a provision that may allow a contractor to lien the lessor's interest even where there is a recorded document advising of the limitation of liens.

More

Search Our Library

Search

  • Print Article
  • Email this page to a friend
  • Print Newsletter / Alert
China
Newsletter - June 2008
 
In this Issue...
The Proposed CFIUS Rules
 
June 12, 2008
 
Francois Janson- New York

In April 2008, the U.S. Treasury issued proposed rules to implement the Foreign Investment and National Security Act (FINSA). FINSA, which became effective in October 2007, expanded the President’s authority under Section 721 of the Defense Production Act of 1950 (also known as the “Exon-Florio amendment”) to review, block or unwind all mergers, acquisitions and takeovers that result in foreign control of a U.S. business and that could adversely impact U.S. national security. FINSA broadened the types of transactions subject to enhanced review to include all acquisitions of businesses involved in critical U.S. infrastructure and those that result in a U.S. business becoming controlled by a non-U.S. government. Control is broadly defined as the power to determine important matters affecting an entity and notification of acquisitions of minority interests as low as 6 percent has been requested in the past.

The proposed rules generally codify the existing review framework. Parties may notify a transaction to the Committee on Foreign Investment in the U.S. (CFIUS) to obtain a declaration of no-action prior to closing a transaction. The process begins with an initial 30-day review, followed by a 45-day extension in the event CFIUS determines that the transaction may result in an unmitigated threat to national security, a U.S. business becoming controlled by a foreign government or foreign control over critical U.S. infrastructure that could impair national security. CFIUS may also exercise its review power if requested to do so by the lead government agency having jurisdiction over the matter. CFIUS may condition its approval to the signing of a mitigation agreement to minimize the adverse impact of a transaction. The proposed rules formalize the practice of engaging in pre-notice consultations with CFIUS. Parties are encouraged to consult with CFIUS prior to filing in order to obtain an early assessment of the issues raised by a particular transaction and discuss the information that CFIUS will require to process the request. The release states that CFIUS will publish additional guidance on the type of information that may be provided to facilitate its review.

With the increased media scrutiny over foreign investments in the U.S. the proposed rules will serve as a strong reminder of the need to address any national security issue as early as possible when planning a potential U.S. acquisition.

For more information, email Francois Janson at francois.janson@hklaw.com or call toll free, 1.888.688.8500.

Related Practices