James D. Rosener, a partner in the Commercial Department of Pepper Hamilton, was quoted in the April 18, 2018 The American Lawyer - International article, "How Lawyers Used CFIUS Review to Defeat Broadcom’s Takeover of Qualcomm."
Given recent trends, more parties should consider floating a merger before the panel early, some transactional lawyers said. "It is a voluntary application, so you don't have to make it, but more practitioners are saying that they'd rather send in a letter to the CFIUS officer at the Treasury and see what they think," said James Rosener, a partner in the commercial department of Pepper Hamilton and head of its international practice group.
"Getting an approval is pretty insulating, because if you don't do it, you are subject to mandatory divestment where you haven't gotten that approval. It is a fairly draconian measure but permissible under Exon-Florio," Rosener said.
Rosener said the use of CFIUS to knock out a deal also signals its availability as yet another tool that can be used by U.S. officials to discourage foreign direct investment in industries or companies that the administration wants to protect. "It is not even a thinly disguised effort," he said. Given the broadening definition of national security to include data on individuals in the U.S., for instance, many more transactions will come under CFIUS scrutiny so clients should expect the review and plan proactively, he said. "Mitigation agreements continue to be the typical solution to allow the transaction to go forward," he said.