DealLawyers.com Blog

If you’re looking for an overview of what CFIUS is all about, check out this recently updated “CFIUS Overview” from Cooley. It addresses, among other things, CFIUS’s jurisdiction, mandatory filings and the voluntary review regime, types of CFIUS filings, and filing fees.  This excerpt addresses the differences between Declarations and Notice filings and their respective advantages and disadvantages:

Declarations – Advantages and Disadvantages. A Declaration is a short-form summary document with an expedited 30-day “assessment” period. Declarations require far less (and far less detailed) information than Notices and do not require the parties to pay a filing fee to the Treasury.

The 30-day assessment period is not always sufficient for CFIUS to identify and resolve national security issues arising from the underlying transaction, however, meaning that filing a Declaration can result in an indeterminate outcome (e.g., a request from CFIUS for a Notice filing). Consequently, while Declarations offer the prospect of a relatively quick and inexpensive CFIUS process, they can – in practice – cost the parties more time and money if CFIUS requests a Notice after the Declaration assessment concludes. Similarly, parties that receive a “no action” outcome must decide whether to consummate their transaction and live with the possibility of another CFIUS review in the future.

Notices – Advantages and Disadvantages. A Notice is a more comprehensive and detailed submission with lengthier “review” and “investigation” periods that collectively can last between 45 and 105 days – and sometimes much longer. Notices require payment of filing fees based on the value of the underlying transaction.

– John Jenkins