CFIUS Basics For Real Estate Lenders

I. Introduction

President Trump's early August 2020 Executive Orders prohibiting transactions with ByteDance Ltd. (“ByteDance”), the Chinese owner of the popular social media app TikTok, and, separately, ordering the divestiture of ByteDance's U.S. business operations, have thrust the activities of a once-obscure Executive Branch interagency body – the Committee for Foreign Investment in the United States (“CFIUS”) – into everyday conversation. CFIUS's increasingly high-profile status reflects its expanded jurisdiction and authority under the 2018 Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”) and the Treasury Department's implementing regulations, which were made final earlier this year.¹The scope of transactions that now may come under CFIUS review is much broader, including the commercial real estate space. Lenders who operate in this market should familiarize themselves with CFIUS, its authorities, and its considerations, especially as