The last few weeks have included summary posts of industry segmented examples of CFIUS-reviewed transactions. The survey disclosed one transaction in which a U.S. public company became subject to a review that CFIUS, rather than the transaction participants themselves, initiated. On July 8, 2010, AOL Corp, headquartered in New York, completed the sale of its ICQ instant messaging business to Digital Sky Technologies Limited, now known as Mail.ru Group Limited. Mail.ru is the largest Internet company in the Russian-speaking world and one of the leading Internet companies in Russia.Subsequent to the completion of the sale, CFIUS contacted Mail.ru. Mail.ru and AOL then submitted a joint voluntary filing to CFIUS commencing a national security review of the completed transaction. In its SEC filing made on February 2, 2011, AOL predicted that “As a result of this process, it is probable that we will agree to provide certain network infrastructure and other operational services to Mail.ru at a level and for a period in excess of our contractual obligations under the original transaction agreements as well as other modifications to the parties’ respective obligations under the transaction agreements.” As of that date, the CFIUS process was “ongoing.” There are at least two takeways from AOL’s sale of ICQ. First, the “voluntary” filing program should incline transaction participants to be as conservative as possible in assessing whether their proposed transaction implicates U.S. national security. Second, a business seemingly as removed from U.S. national security as instant messaging may have security implications, probably because of the growing role of messaging in the U.S. communications network; indeed, there may be a presumption that telecommunications technologies involve national security concerns for the U.S.
It would be helpful if CFIUS republished some of its earlier guidance and explained to transaction participants and advisors, on a more granular or specific basis, some of the linkages it draws to U.S. national securities or examples of government control. Until that guidance is forthcoming, participants will be forced to rely on anecdotal evidence, press reports and surveys such as the one presented above, supplemented by the judgment of experienced professionals.