President Trump’s time in office has been punctuated by rising tension with China on a host of economic issues. He’s received bipartisan criticism for the impact of tariffs on Chinese goods and the resulting retaliation against American exports.
Democrats and Republicans have also unified over concerns about how Chinese state-associated actors are using minority investments in critical technology companies to gain sensitive information — like IP and know-how — about startups, many of them VC-backed. Policymakers are worried this technology is being used to propel Chinese advancement in emerging technology like artificial intelligence and robotics.
These concerns led to passage of the Foreign Investment Risk Review Modernization Act (FIRRMA), which was signed into law by the president on August 13. NVCA has been at the table during FIRRMA’s consideration because it stands to have a significant impact on the venture and startup ecosystem.
Who in our industry needs to understand FIRRMA going forward? Many more than you might think. VCs with foreign LPs, VCs with foreign co-investors, or startups contemplating taking foreign capital are the prime examples, but given the shifting startup landscape in recent years, FIRRMA will leave a broad mark.
FIRRMA expands the power of the Committee on Foreign Investment in the U.S. (CFIUS) to scrutinize foreign investments into ‘critical technology’ companies for national security implications. Few in the startup world have dealt with CFIUS, but those who have understand its power and implications. It’s the opaque government entity that blew up the Broadcom – Qualcomm transaction for national security reasons and has been called the ‘ultimate regulatory bazooka.’
Before FIRRMA, CFIUS reviewed foreign investments for national security considerations when the investment resulted in foreign control of a U.S. entity. But minority investments used to obtain sensitive information about a company have been outside the scope of CFIUS because those investments generally don’t deliver control to the foreign investor. FIRRMA is intended to address this blind spot by greatly expanding the transactions that must be disclosed to CFIUS.
NVCA secured hard-fought changes to FIRRMA to lessen the impact on our industry. The bill has come a long way from when it was introduced. For example, under the original version we were concerned foreign LPs might need to file with CFIUS because they would not meet the exemption for passive investment. Furthermore, a sizeable chunk of foreign direct investments into startups would be picked up by the bill. Fortunately, key changes were made in the end.
Ultimately under FIRRMA the government will now be able to review—and potentially reject—any investment by a foreign entity in a critical technology company that gives the foreign entity:
- access to any material nonpublic technical information of the company;
- membership or observer rights on the company’s board or equivalent governing body; or
- any involvement in substantive decision-making of the company, other than through voting of shares
Under this approach, the typical venture fund ought to be able to avoid a CFIUS filing because its foreign LPs won’t meet the above factors. And many direct investments into startups will also avoid filing with CFIUS unless they’re leading to board seats, non-public information about the company, or decision-making capability.
Still, VCs, LPs, and startups raising capital will need to navigate FIRRMA going forward to make sure they don’t get tripped up by the new law. Doing so will likely trigger a CFIUS filing, leading to delay and expense. The fast-moving startup ecosystem will not welcome the uncertainty that comes with a 45-day initial review that is fraught with uncertainty and costs. And that expense is no small sum, as FIRRMA sets the CFIUS filing fee at 1 percent of the value of the transaction or $300,000 — whichever is less. And that doesn’t include legal fees.
It is imperative the venture industry remain vigilant on FIRRMA and related national security issues. The government is increasingly interested in how our world operates because emerging technology is impacting society and foreign capital is sometimes used to launch high-growth companies.
At NVCA, we are embracing this conversation and will hold a conference named “Emerging Technology Meets National Security” on November 14 in DC.
The NVCA will remain deeply engaged in FIRRMA as regulations are written that will define terms and set practices that affect the thrust of the bill. These issues are happening whether or not the venture industry is part of the conversation, but we only get a chance to impact decisions if we’re in the room.