What is a CFIUS filing, when should it be made, and what happens if a party fails to file?

In passing the Foreign Investment and Risk Review Modernization Act in 2018, Congress provided CFIUS with increased resources to review transactions occurring in the global marketplace to determine whether they are subject to CFIUS’s jurisdiction and raise national security issues. This review results in what we call the “non-notified” practice of CFIUS. Essentially, if the CFIUS analysts see reporting of a transaction that they believe raises national security concerns, they will call the transaction parties (mainly on the buy-side) to ask questions about the transaction to determine whether CFIUS would have jurisdiction to review the transaction and whether there is reason for concern.