Very significant news from the White House: “Order Regarding the Acquisition of Certain Real Property of Cheyenne Leads by MineOne Cloud Computing Investment I L.P.”
My quick take:
-The Biden Administration announced its first prohibition of a transaction under CFIUS authorities.
-Based upon the limited facts contained in the President’s Executive Order, it seems a clear national security justification underpinned his decision— ‘the presence of specialized and foreign-sourced equipment potentially capable of facilitating surveillance and espionage’ within a mile of a strategic missile base, with that equipment tracing back to ultimate owners who are Chinese nationals.
-It’s a great case study . . . exactly why we expanded CFIUS jurisdiction to certain real estate transactions through FIRRMA in 2018.
– It’s the first Presidential prohibition under CFIUS authorities that is based on the Committee’s real estate jurisdiction.
– This is the 8th Presidential prohibition in the nearly 50-year history of CFIUS . . . Bush ‘41 (1), Obama (2), Trump (4), Biden (1).
– This is the *7th out of 8* Presidential prohibitions involving a national security threat identified back to a Chinese acquirer or investor.
– The case developed post-closing, and was a result of a CFIUS “non-notified” transaction investigation . . . And it was precipitated by a public tip to CFIUS . . . This case shows why in 2019 and 2020 we created and resourced a dedicated non-notified investigation team at Treasury.
– The President’s order requires very significant steps to remedy the threat: divestment in 120 days, but ALSO the removal of equipment and the tear-down/reversal of utility improvements, repairs, excavations, new construction, etc.
– Curious . . . why the owners of MineOne decided to take their chances with a presidential referral rather than abandoning the deal? . . . The Treasury press release seems to indicate that the parties’ conduct during the investigation may have increased the US Government’s concerns: “In all CFIUS reviews, the parties’ conduct can impact the Committee’s assessment of what steps or actions are needed to resolve national security risks.” and: “CFIUS expects complete, accurate, and timely information, particularly when serious national security issues are on the line.” I may be reading into it, but it seems noteworthy that the government took the time to expressly make comments about something so self-evident.