In what likely portends enforcement actions in the near future,
the U.S. Department of the Treasury published its first ever CFIUS
Enforcement and Penalty Guidelines (the “Guidelines”).
The Committee on Foreign Investment in the United States
(“CFIUS”) has long been authorized to impose penalties
for noncompliance with mitigation agreements and orders, and more
recently, for failure to make mandatory filings. Although the
guidelines do not change these authorities, they represent the
first time CFIUS has provided the public with a framework for how
it thinks about potential violations and the process for assessing
penalties.
The Guidelines are the latest addition to a mosaic of increased
visibility, attention to, and resources for CFIUS monitoring and
enforcement since the enactment of the Foreign Investment Risk
Review Modernization Act of 2018 (“FIRRMA”), including,
among other things, CFIUS's enhanced efforts to identify and
pursue non-notified transactions.
