Musk disclosed on Thursday that Saudi Arabia's Prince
Alwaleed bin Talal, Qatar's sovereign wealth fund and Binance, the world's
biggest cryptocurrency exchange founded by Chinese native Changpeng Zhao, were
part of a group of investors that will help him fund the acquisition of
Twitter.
This could give the Committee on Foreign Investment in the
United States (CFIUS) an opening to scrutinize the deal for potential national
security risks, six regulatory lawyers not involved in the transaction and
interviewed by Reuters said. CFIUS is a panel of government agencies and
departments that reviews mergers and acquisitions for potential threats to U.S.
security.
"To the extent that Musk's proposed acquisition of
Twitter includes foreign investment, it very well could fall under CFIUS
jurisdiction," said Chris Griner, chair of law firm Stroock & Stroock
& Lavan LLP's national security practice.
A spokesperson for the U.S. Treasury Department, which
chairs CFIUS, declined to comment on whether the national security panel
planned to scrutinize Musk's Twitter deal.
Spokespeople for Musk, bin Talal, Qatar and Binance did not
immediately respond to requests for comment.
Former President Donald Trump's administration turned to
CFIUS in 2020 in a bid to force TikTok's Chinese parent ByteDance to divest the
short video app. His successor Joe Biden abandoned that effort after ByteDance
agreed to changes on how the data of U.S. users are stored and protected.
The regulatory lawyers interviewed by Reuters said the risk
of CFIUS blocking Musk's deal is small because he will control Twitter under
the proposed takeover and the foreign investors are acquiring relatively small
stakes.
They added that their assessment would change were Musk to
give the foreign investors influence over the company, through a seat on its
board or other means.
The risk is not negligible, however, given that the business
of handling personal data by social media companies such as Twitter is
typically viewed as critical infrastructure by CFIUS, the lawyers said.
"One of the items that's considered sensitive personal
data, is non-public electronic communications. So that would be email,
messaging or chat communications between users. Twitter allows you to do
that," law firm Vinson & Elkins LLP partner Richard Sofield said.
One area of potential scrutiny for CFIUS, the lawyers said,
could be Musk's business dealings with foreign governments hostile to free
speech or keen to overtake the United States technologically. Tesla Inc, the
electric car maker he leads, relies heavily on China, for example, to
manufacture and sell its vehicles.
China blocked Twitter in 2009 but many Chinese officials
have been active on the social media platform. Some of them have complained
that the company's efforts to restrict misinformation have targeted them
unfairly.
"One of the considerations would be whether or not
there will be an opportunity for China to leverage its business activity in
order to achieve a desired outcome," Sofield added.
BROADCOM PRECEDENT
There is precedent for CFIUS shooting down a deal based on
the risk that an acquirer's business ties could compromise them, the lawyers
said. Trump blocked chip maker Broadcom Inc's $117 billion acquisition of U.S
peer Qualcomm Inc 2018 after CFIUS raised concerns about the deal.
Broadcom was a publicly listed company with U.S.
shareholders that was headquartered in Singapore, but the White House fretted
that Broadcom's relationship with "third-party foreign entities"
would set the U.S. back in its technology race with China.
Nevena Simidjiyska, a regulatory lawyer at law firm Fox
Rothschild LLP, said it was possible CFIUS would look into whether Musk or
other U.S. investors in the Twitter deal can be influenced by foreign entities
in a similar way.
"CFIUS may determine that even U.S. investors in
Twitter fall under CFIUS review if they are controlled by foreign
parties," Simidjiyska said.
Musk's Twitter deal does not face the most common type of
regulatory risk seen in mergers and acquisitions — pushback from antitrust
regulators. The world's richest man has no media holdings, and regulatory
experts have said they do not expect the deal to face significant antitrust
scrutiny. -Reuters
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