Fair Play: Watch Out Sprint, Walmart. Cross-Border Deals Get Complicated

  • United States
  • 05/21/2018
  • Bloomberg Law

When Congress fights annually about whether to shut down the government, it’s hard to take the elected officials seriously. Congress has a 16 percent approval rating as of last week, according to Real Clear Politics.

But skeptics should be on notice that lawmakers are very serious about passing legislation to strengthen national security reviews of transactions between U.S. companies and foreign companies. The new law they come up with will add another layer to the already complex government screening of transactions that involve foreign entities.

That could affect a lot of major pending deals. Sprint Corp. and T-Mobile Inc. both have foreign parent companies, in Japan and Germany, respectively. Their $26.5 billion deal isn’t likely to close before the pending measure becomes law. Likewise, Walmart Inc.’s plans to buy a 77 percent stake in the Indian e-commerce company Flipkart Online Services could get caught up in the expanded review process. That deal is slated to close by the end of the year, but lawmakers could move faster.

Two congressional committees – one in the House and one in the Senate – are voting Tuesday on bills to expand the review authority of the Committee on Foreign Investment in the U.S., or CFIUS. CFIUS is a secretive panel of reviewers from several U.S. agencies that look for any kind of threat from a foreign owner of U.S. technology or intellectual property.

CFIUS can give a thumbs up or a thumbs down to any cross-border deal without explanation. Its reviews are separate from antitrust regulators, who look at proposed mergers to determine if competition would be harmed. The legislation would expand CFIUS’ purview such that it could more easily capture questionable deals with companies in countries like China that are known for trying to poach valuable U.S. technology.

Once the committees vote, the next stops are the House and Senate floors before heading to the White House for the president’s signature. Senate leaders are considering attaching their version to a must-pass defense policy bill that is approved every year with bipartisan support. The House could follow suit or pass its own stand-alone version, allowing negotiators to tweak the differences between the two as they finalize the defense bill.

This is major legislation with bipartisan support and a clear sense of urgency behind it, illustrated by the swift way the two committees scheduled votes. The Senate Banking Committee released a draft version on May 11 and scheduled a committee vote shortly thereafter. The House Financial Services Committee didn’t release their version until late last week. The public announcement of the committee vote didn’t come until late May 17.

Lawmakers involved in crafting the bill say they hope to get it passed before the August break. That’s generally the schedule that the defense policy bill follows as well, so there’s a chance it could happen like they say it will.

The bills are written broadly to cover all kinds of transactions. They both have language calling for extra scrutiny of deals that involve “cumulative market share or a pattern of recent transactions” by foreign persons such that they any type of “infrastructure, energy asset, critical material, or critical technology.”

Food could be considered “critical material.” “Critical technology” could mean anything from the 5G wireless coverage to smart grid power meters to automobiles. Transactions under the microscope won’t have to be major mergers, either. Both bills include language to bolster the Commerce Department’s export control system to alert authorities when joint ventures or technology transfers (which are often routine) are being used to mask a foreign person or entity gaining a controlling ownership of a valuable U.S. asset.

Lawmakers’ intent is to give the government the tools to catch and stop deals that could in some way cede an American technical advantage to a foreign country. But the net they are casting will include a lot more transactions than that.

What’s Happening
On Monday, Justice Department Deputy Attorney General Rod Rosenstein will be a keynote speaker at a Compliance Week conference in Washington.

On Tuesday, the Senate Banking Committee and the House Financial Services Committee will mark up their versions of a CFIUS expansion bill.

Quote of the Week
“Consolidation can fuel economic growth through the achievement of synergies and economies of scale, but it can also have unintended and negative consequences for consumers.”

—Sen. Jim Lankford (R-Okla.), chairman of the Senate Appropriations Committee’s subcommittee with jurisdiction over the Federal Trade Commission, at a hearing on the FTC’s budget

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