Del. Chancery Says No Turning Back After Buyout Notice

In an effort to maintain my sanity by providing some non-pandemic content, I stumbled across the Chancery Court’s recent decision in Walsh & Devlin v. White House ...

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Debt Restructurings May Trigger CFIUS Review

Unfortunately, there’s likely to be an avalanche of debt restructurings over the coming months, and a Ropes & Gray memo says that some of them may trigger CFIUS ...

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Antitrust: HSR Early Terminations Back on the Table

That was fast. A couple of weeks ago, I wrote about the FTC’s implementation of temporary e-filing procedures and its decision to deny HSR early termination requests ...

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Proxy Contests: Will COVID-19 Put Them on Ice?

A Sidley memo says that one of the consequences of the coronavirus outbreak may be a decline in proxy contests during the current season. As this excerpt points out, the ...

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COVID-19 And M&A: Impact On Public Deals

We’re starting to see some information on how COVID-19 has affected the deal market, along with some speculation about what it may mean for M&A going forward. ...

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Activism: Preparing For The New Environment

Earlier this week, I wrote about the possible resurgence of poison pills in response to the unprecedented market volatility resulting from the COVID-19 pandemic. A ...

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Antitrust: More COVID-19 Implications For Merger Review

I wrote last week about the FTC’s decision to not grant early termination of the HSR waiting period while its COVID-19 driven temporary e-filing rules are in effect. ...

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Poison Pills: Has Their Time Come Again?

There are a lot of companies that have seen their stock prices fall through the floor as a result of the market’s ongoing meltdown. I know this because so many of them ...

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COVID-19: Impact On MAC Language

I’ve previously written about the possible use of the COVID-19 pandemic as a MAC trigger and the negotiation of specific carve-outs to MAC clauses addressing the ...

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Cyan Agonistes: Del. Supreme Ct. Upholds Federal Forum Provisions

In its 2018 Cyan decision, the SCOTUS unanimously held that class actions alleging claims under the Securities Act of 1933 may be heard in state court. It also held that ...

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Where Are All The Busted Deals?

Given the havoc that COVID-19 has wreaked on the world economy, you might have expected to see a spike in terminations of pending deals during the current month, but ...

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COVID-19: Delaware Supreme Court Declares Judicial Emergency

It’s hard to find a single aspect of daily life that hasn’t been disrupted by the COVID-19 pandemic. A recent blog from Francis Pileggi reports that this includes ...

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HSR: No Early Termination Under Temporary FTC Filing Protocols

On Friday, the FTC announced the implementation of a temporary e-filing system for HSR notifications in response to the COVID-19 pandemic. While this temporary system is ...

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Corwin: Delaware Chancery Adds A Pinch Of MFW To The Recipe

It seems fair to say that companies have gotten comfortable with the Corwin cleansing process over the past several years. If you provide your shareholders with full and ...

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Controllers: Minority Blocking Rights May Confer Control Status

There’s been a lot of action in Delaware recently about when holders of less than a majority equity stake in an enterprise may be regarded as controlling shareholders. ...

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National Security: Treasury Proposes CFIUS Filing Fee

The Foreign Investment Risk Review Modernization Act, or FIRRMA, authorizes CFIUS to establish a filing fee not to exceed the lesser of 1% of the transaction value or ...

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Antitrust: Vague Covenants Lead to “Broken Deal” Lawsuits

Deals involving significant antitrust risk usually contain fairly elaborate covenants governing the parties respective rights and obligations with respect to the HSR ...

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What Does a Tight Insurance Market Mean for M&A?

Insurance companies have taken it on the chin in recent years when it comes to claims experience, so many businesses find that policy costs and retention are up sharply ...

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Coronavirus: Implications for M&A Transactions

Earlier this week, I wrote about the possibility that the coronavirus might be used as a MAC trigger, and noted that some sellers have already negotiated specific ...

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Frenemies: Xerox’s Not Particularly Hostile Bid for HP

Xerox finally launched its long-threatened tender offer for HP earlier this week. The tender offer involves a combination of cash and stock, and while it certainly ...

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MFW: Viable Derivative Claim Impairs Committee Independence

Delaware’s MFW doctrine provides a path to business judgment review for controlling shareholder deals, but it requires the parties to jump through a lot of hoops ...

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Coronavirus: Will It Be Used As A MAC Trigger?

There are lots of pending deals involving companies whose business prospects have been made substantially less certain due to the ongoing impact of the coronavirus. ...

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Letters of Transmittal: What Do They Look Like 5 Years After Cigna v. Audax?

The Delaware Chancery Court’s 2014 decision in Cigna v. Audax, (Del. Ch.; 11/14) was anticipated to result in big changes to the way dealmakers approached efforts to ...

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Activism: “More M&A in Activism and More Activism in M&A”

Schulte Roth recently published its “2020 Shareholder Activism Insight” report, and it had some interesting things to say about M&A activism. After noting that ...

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M&A Trends: A Review of the Last Decade

A recent study from SRS Acquiom & Bloomberg Law addresses some of the major trends in private company deal terms over the past decade. Overall, the conclusion is one ...

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Antitrust: FTC Ratchets Up Scrutiny of M&A Non-Compete & No-Poach Clauses

A recent Sidley memo says that the FTC has been ratcheting up its scrutiny of non-compete & “no-poach” clauses in acquisitions agreements. Here’s the ...

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M&A Activism: Working With Activist-Affiliated Directors

An IR Magazine article by Sullivan & Cromwell’s Melissa Sawyer and Marc Treviño offers some practical guidance on working with an activist-affiliated director’s ...

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Minority Controllers: Blame Corwin

In a couple of recent blogs, I’ve referenced Professor Ann Lipton’s commentary about how Delaware’s Corwin doctrine has warped its approach to controlling ...

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Earnouts: Court Rejects Claim Based on Conduct of Business Covenant

A recent Delaware Superior Court decision provides some insight into how courts interpret contractual limitations on a buyer’s right to manage the post-closing conduct ...

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ESG: The Next Big Thing in M&A?

So far, concerns about ESG issues have generally focused on corporate governance and disclosure. But a Wachtell Lipton memo says that ESG considerations may be about to ...

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Appraisal: Score One for DCF!

Every now and again, the Delaware Chancery Court issues an appraisal decision that reminds everybody that despite the trend toward a “deal price minus synergies” ...

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Controllers: The Heat is On in Delaware for Minority Shareholders

In my recent article about the Chancery Court’s Essendant decision, I mentioned that plaintiffs have increasingly been asserting “controlling shareholder” claims ...

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Due Diligence: Mitigating M&A OFAC Risk

An international target’s compliance with U.S. sanctions regulations is often one of the more challenging due diligence issues confronting potential buyers. But a ...

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Fiduciary Duties: Del. Chancery Upholds Exercise of “Superior Proposal” Out

In his recent decision in In re Essendant Inc. Stockholder Litigation, (Del. Ch.; 12/19), Vice Chancellor Slights dismissed fiduciary duty claims arising out of a target ...

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Acquisition Agreements: The “Ordinary Course of Business” Covenant

Any acquisition agreement that doesn’t provide for a simultaneous sign & close is going to have some sort of covenant obligating the seller to conduct business in ...

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Controllers: Chancery Refuses to Dismiss “Control Group” Claim

In Garfield v. BlackRock Mortgage Ventures, (Del. Ch.; 12/19), the Delaware Chancery Court held that a plaintiff challenging a corporate reorganization had adequately ...

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FTC Announces New HSR Thresholds

So far, winter hasn’t been too bad here in Northeast Ohio, although I don’t think anyone is predicting that the buzzards will make an early return to Hinckley. ...

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Appraisal: Chancery Says No Refund on Prepayments

Delaware amended its appraisal statute in 2016 to allow companies to prepay appraisal claimants in order to stop interest from accruing, but there is no provision in the ...

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Books & Records: Del. Chancery Decision Broadens Inspection Rights

A Nixon Peabody memo reviews the Chancery Court’s recent decision in Lebanon County Employees’ Ret. Fund v. AmerisourceBergen, (Del. Ch.; 1/20), which involved a ...

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Private Equity: Funds Headed for the Exits More Quickly in 2019

According to a PitchBook article, average PE fund hold times for portfolio companies fell to 4.9 years during 2019, the first time that number’s fallen below 5 years ...

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Public Deals: Guide to Buying a U.S. Public Company

Latham recently put together a 20-page guide to acquiring a U.S. public company. It’s targeted at foreign buyers, but it’s a useful and digestible reference guide ...

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Cross-Border: Glass Half Full for U.S – Western Europe Deals

According to a White & Case “M&A Explorer” article, the dollar value of deal traffic between the U.S. & Western Europe rose by 12% to $312.9 billion ...

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Game On! Xerox Launches a Proxy Fight for Control of HP Board

I’ve previously discussed Xerox’s efforts to corral HP into a deal.  While Xerox has been understandably reluctant to make a hostile tender offer for HP, yesterday ...

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Delaware: Review of 2019’s “Unsung Heroes”

Francis Pileggi recently posted his 15th annual review of key Delaware decisions on his Delaware Corporate & Commercial Litigation Blog.  With some exceptions, ...

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M&A Negotiation: “Let’s Get Everybody in a Room. . . “

If you’ve spent any time at all doing deals, you’ve had the experience where somebody on the deal team insists that all that’s needed to get a deal done is to ...

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Antitrust: DOJ & FTC Issue Draft Vertical Merger Guidelines

Vertical mergers involve combinations of companies involved in different stages of the supply chain for a product or service, and it has been nearly 40 years since the ...

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National Security: Treasury Adopts Final FIRRMA Regs

On January 13, 2020, the Treasury Department issued final regulations implementing the Foreign Investment Risk Review Modernization Act, or FIRRMA.  Here’s an excerpt ...

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Advance Notice Bylaws: Del. Supreme Court Upholds Strict Bylaw Deadline

On Monday, the Delaware Supreme Court issued its decision in BlackRock Credit Allocation Income Trust v. Saba Capital, (Del; 1/20) in which it reversed an earlier ...

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Antitrust: What to Expect in 2020

A recent Wachtell Lipton memo reviews U.S. M&A antitrust enforcement during 2019 and gazes into the crystal ball to predict what 2020 may bring.  Here’s an ...

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Auditor Independence: Proposed Rule Changes are Good News for Dealmakers

A recent blog from Weil’s Howard Dicker & Lyuba Goltser reviews the potential benefits to PE funds, IPOs & participants in M&A transactions associated with ...

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Chancery Court Refuses to Dismiss Duty of Care Claims Against GC

In Morrison v. Berry, (Del.; 12/18), the Delaware Supreme Court reversed an earlier Chancery Court ruling and refused to dismiss a shareholder plaintiff’s claims ...

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M&A Disclosure: Fed Ct. Rejects Claims Based on Fairness Opinion Description

Over the years, descriptions of fairness opinions in proxy statements have proven to be fertile ground for disclosure litigation.  However, in Hurtado v. Gramery ...

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Antitrust: High Tech Means High Scrutiny

A recent  Sullivan & Cromwell memo highlights the increasing scrutiny that antitrust regulators in the U.S. & abroad are applying to transactions involving ...

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Termination Fees: An Overview of the “Naked No Vote” Fee

Last month, I wrote about the inclusion of a so-called “naked no vote” termination fee in the merger agreement for Google’s pending acquisition of Fitbit. At the ...

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MACs: Even After Akorn, They Still Don’t Come Easy

It used to be one of corporate law’s great truisms that the Delaware courts had never endorsed an attempt to terminate a merger based on a “Material Adverse ...

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M&A Indemnity: Does Your Clause Cover Direct Claims?

Does a clause that purports to indemnify a party for losses sustained due to the other party’s breach of reps, warranties or covenants in the agreement cover direct ...

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Buyer Dodges Advancement Claim From Former Seller Officer

Most merger agreements involving public company targets include a covenant from the buyer obligating it to cause the survivor to continue to indemnify & advance ...

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Antitakeover: The Shadow Pill Flexes Its Muscle

Remember a few weeks back when I wrote about Xerox’s bear hug letter to HP’s board? In the closing paragraph of that letter, Xerox said that if HP didn’t agree to ...

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The Rise of M&A Tax Liability Insurance

A recent Woodruff Sawyer report covers a variety of developments on the transactional insurance front.  Here’s an excerpt addressing tax liability insurance, which is ...

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Attorney-Client: NY Appellate Court Says Seller Retains Privilege

We’ve discussed quite a bit about issues surrounding who owns the seller’s attorney-client privilege after the deal closes. The default rule in Delaware is that it ...

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Antitrust: Regulators Aren’t Just Worried About Your Arch-Rival

Hertz & Avis. . .Coke & Pepsi. . .  Red Sox & Yankees. . . BoJack Horseman & Mr. Peanutbutter. .  . When you think about your competitors, it’s ...

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Activism: Give Peace a Chance?

A WSJ article says that some recent arrangements between companies and some heavy-hitters in shareholder activism suggest that there may be a peace offensive underway.  ...

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Private Equity: 1st Cir. Reverses Sun Capital Decision

Last month, the 1st Circuit Court of Appeals reversed the 2016 Sun Capital decision, in which a Massachusetts federal court imposed joint & several liability on 2 PE ...

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2019 MAC Survey

Nixon Peabody recently posted its 2019 MAC Survey, and the results suggest that the terms of MAC clauses continue to move in a buyer-friendly direction. Here’s an ...

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Fairness Opinions: Don’t Jump the Gun!

Clients are sometimes very impatient with lawyers’ emphasis on getting the “process” right and frequently aren’t shy about expressing their displeasure about ...

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Private Equity: 2020 Limited Partner Survey

Intralinks’ annual Limited Partner Survey always makes for interesting reading.  This excerpt discusses LPs growing interest in co-investment opportunities: When ...

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Termination Fees: Google & Fitbit’s “No Vote Fee”

A simple failure by the seller’s shareholders to approve the deal is an unusual termination fee trigger. In fact, according to the latest ABA Deal Points survey, this ...

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Antitrust: FTC Provides Guidance on HSR “Avoidance Devices”

Earlier this year, I wrote about the FTC’s $5 million settlement with Canon & Toshiba arising out of their efforts to structure the sale of the Toshiba Medical ...

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Hostile Deals: Xerox Gives HP a “Bear Hug”

Xerox turned up the heat on its unlikely bid for HP yesterday when it sent a letter to HP’s board stating its case for a deal & threatening to “take its ...

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D&O: Common Law & Statutory Claims Aren’t Covered “Securities Claims”

A few months ago, I blogged about a Delaware Superior Court decision holding that a D&O policy’s duty to defend “securities claims” extended to appraisal ...

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Does Common Institutional Ownership Deter Competing Bids?

In the era of the index fund, common institutional ownership among large public companies is almost ubiquitous. As I’ve previously discussed, this has raised a number ...

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Books & Records: Del. Chancery Says Proxy Fight Not a “Proper Purpose”

Last week, in High River Limited Partnership v. Occidental Petroleum, (Del. Ch.; 11/19), the Chancery Court held that an intent to launch a proxy fight was not a ...

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M&A Outlook: Dealmakers Curb Their Enthusiasm

According to Dykema’s “15th Annual M&A Outlook Survey,” dealmakers aren’t quite as upbeat about the prospects for M&A activity during 2020 as they were ...

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Antitrust: Regulators Continue Aggressive Merger Review Posture

Dechert’s most recent quarterly review of merger investigations during the current year provides several data points supporting the view that companies are facing a ...

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Forum Selection Clauses: Make Sure They Say What You Mean

A recent Weil blog reviews the Delaware Chancery Court’s recent bench ruling in Brown Robin Capital v. The Anschutz Corp. (Del. Ch.; 8/19) (transcript) and says that ...

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Cross-Border: They Do Deals Differently in Europe. . .

A Winston & Strawn memo reviews 9 ways in which European transactions differ from what buyers are accustomed to in U.S. deals.  This excerpt addresses the European ...

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Antitrust: FTC Orders 2017 Merger Unwound!

Earlier this month, the FTC unanimously ordered the unwinding of a merger involving two microprocessor prosthetic knee (MPK) companies that was completed in 2017. (h/t ...

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M&A Arbitrage: Do Arbs Influence the Consideration Mix?

I’ve previously discussed merger arbitrage and the impact that it can have on the parties’ stock prices after the announcement of a deal. But a new study says that ...

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M&A Outlook: Execs Optimistic About 2020, Despite Economic Jitters

EY recently published the latest edition of its “Global Capital Confidence Barometer”, which surveyed more than 2,900 executives in 45 countries about a variety of ...

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Purchase Agreements: Beware Undue Reliance on “Catch-Alls”

Nearly every acquisition agreement has numerous “belt & suspenders” type provisions – one topic might be the subject of a detailed contractual provision, but ...

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Mootness Fees: Plaintiffs Tell Court “It’s None of Your Business”

Last June, I wrote about an Illinois federal judge’s decision to strike down a “mootness fee” settlement arising out of litigation surrounding the aborted ...

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Private Equity: The Long & Winding Road to Winding Down

Most limited partners are well aware that PE funds are quick to make capital calls, but much slower to pull the trigger on distributions. A Pitchbook article does a deep ...

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Earnouts: “Comprehensive & Explicit” Language Wins the Day for Buyer

Earnouts are often used as a bridge to keep a deal together when the parties differ on valuation.  Since that’s the case, people sometimes tip-toe around all sorts of ...

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R&W Insurance: Influence on Deal Terms

SRS/Acquiom recently issued its annual “Buy-Side R&W Insurance Deal Terms Study,” which address how the use of buy-side R&W insurance continues to influence ...

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M&A Leaks Report: Less Gabby Trend Continued in 2018

Intralinks recently released its annual “M&A Leaks Report.” Once again, the report makes for interesting reading – it analyzes deal leaks over the period from ...

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Shareholders v. Stakeholders: When A Controller Is In The Mix

When I wrote last week about Vice Chancellor Laster’s recent decision in Bandera Master Fund v. Boardwalk Pipeline Partners, I said that the case was loaded with ...

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Del. Chancery Says Disclosure of Potential Call Right Exercise Raises Contract Issues

A recent Delaware Chancery Court decision addressed the hazards of navigating a company’s disclosure obligations under the securities laws & its controller’s ...

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Spin-Offs: IPOs With Points for the Degree of Difficulty

American gymnast Simone Biles was busy shredding the record book last week on her way to winning her 24th world championship medal.  One of the things that separates ...

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Reverse Mergers: Talk About a Corporate Makeover!

I’ve seen some pretty radical corporate makeovers involving public companies over the years. I once represented an environmental remediation company that shed its skin ...

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Shareholder Activism: Meet the “Reluctivists”

A Skadden memo reviews current trends in shareholder activism, including the growth in M&A activism, the merging of private equity & activism, and the rise of ...

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Private Equity: Fund Tagged for Portfolio Company False Claims Issue

I’ve previously discussed situations in which a fund’s entanglement in its portfolio company’s operations have resulted in some pretty significant liability ...

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Controllers: Del. Chancery Rejects Stock Offering Dilution Claims

Controlling shareholders can get a little grabby when it comes to stock issuances – and Delaware courts recognize that, in some circumstances, issuances that increase ...

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Private Equity: Obstacles & Opportunities for Retail Investors

SEC Chair Jay Clayton is on record as wanting to find ways to expand the ability of retail investors to access private markets – including private equity funds. A ...

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Antitrust: FTC Offers Guidance on Non-Solicits & Non-Competes

I recently wrote about the FTC’s increasing focus on non-competes in its merger review process. Earlier this week, the FTC underscored the point that these ...

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Something’s Happening Here: Caremark Bites Another Board

Don’t look now, but the Delaware Chancery Court just upheld another Caremark claim in the face of a motion to dismiss. In his 50-page opinion in In re Clovis Oncology ...

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Termination Fees: Should Sellers Push for PE Buyers’ “Clean Break”?

Financial buyers used to insist on financing conditions in their acquisition agreements.  They learned long ago that a financing condition usually ramped up their ...

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Mootness Fees: Delaware Federal Court Says “No” & Looks to Trulia

I’ve previously talked about the rise of mootness fees as plaintiffs’ favorite post-Trulia method for extracting a quick buck in federal merger objection strike ...

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M&A Tax: Treasury Report Says IRS Lacks M&A Compliance Strategy

The IRS is taking heat in a recent report issued by the Treasury’s inspector general for tax administration (TIGTA) over its lack of a strategy to assess compliance ...

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Antitrust: FTC Conditions Merger Clearance on Non-Compete Termination

It’s pretty common for a buyer to seek some sort of non-competition protection from a seller in connection with an acquisition. But this Goodwin memo points out that ...

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Cross-Border: Managing the Risks of Deals in Challenging Jurisdictions

Despite the rise of protectionism & other pressures on globalization, cross-border transactions continue to grow, and companies are looking beyond the developed ...

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M&A Tax: IRS Proposes to Limit Use of NOLs for Built-In Gains

Section 382 of the Internal Revenue Code significantly limits a buyer’s ability to use a target’s pre-acquisition net operating losses to offset future income. ...

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M&A Litigation: Feds Still Preferred Venue, But States Gain Ground

The latest edition of Cornerstone Research’s M&A Shareholder Litigation Study says that federal courts remained the preferred venue for M&A objection ...

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National Security: Proposed Regs Would Significantly Expand CFIUS Jurisdiction

Earlier this week, the Treasury Department issued proposed regulations that would implement the Foreign Investment Risk Review Modernization Act that President ...

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Antitrust: DOJ Meets ADR. . .

Earlier this month, the DOJ announced that – for the first time – it had agreed to take a challenge to a proposed merger to binding arbitration. Here’s the intro ...

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No-Shops: Del. Chancery Says Termination Fee Not Sole Remedy for Breach

It’s not often that you find a court rolling up its sleeves and digging into the mechanics of no-shop & termination fee clauses, but that’s what Vice Chancellor ...

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M&A Announcements: Unrelated Good News May Signal a Bad Deal

A HBR article reviews recent research finding that companies that accompany their announcements of M&A transactions with other items of “good news” may not have ...

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M&A Finance: How to Play the “Accordion”

Many credit facilities include an “accordion” feature that allows a borrower to incrementally increase the amount of its availability under an existing credit ...

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Conflicts of Interest: 4th Cir. Says Undisclosed CEO Comp Discussions Potentially Material

I recently blogged about the Chancery Court’s decision in  In re Towers Watson & Co. Stockholder Litigation, (Del. Ch.; 7/19), in which Vice Chancellor McCormick ...

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NDAs: An Overview of Key Issues

HPE’s associate general counsel Saswat Bohidar recently provided some helpful insights into M&A non-disclosure agreements in an Intralinks blog. Here’s an ...

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The Trouble With Earnouts

I really like a recent Cooley blog, because to me it gets to the heart of the problem with using earnouts to bridge the valuation gap. Here is an excerpt:   Often ...

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Antitrust: Activist Investor Gets Caught in HSR Net

The HSR Act has once again proven that it contains some of the most formidable traps for the unwary in the entire U.S. Code. This time, it was activist hedge fund Third ...

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Post-Closing: Buyers Must File New EEO-1 Info for Acquired Companies

Companies with at least 100 employees & some federal contractors with more than 50 employees have to file EEO-1s containing with certain workforce demographic ...

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Delaware Case Highlights Risks of Executing Counterpart Sig Pages

The final days & hours leading up to a signing or closing usually involve a flurry of ever-changing draft documents that frequently don’t come to rest until the ...

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D&O Insurance: Duty to Defend “Securities Claims” Includes Appraisal

This Morris James blog highlights the Delaware Superior Court’s recent decision in Solera Holdings v. XL Specialty Ins., (Del. Super.; 7/19), which held – among ...

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Money Ball: Using Advanced Analytics in M&A

Today’s high M&A valuations mean that buyers often face daunting challenges when it comes to achieving an appropriate return on their investment. A McKinsey report ...

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Appraisal Rights: VC Glasscock Expands On Prior Ruling Allowing Waivers

Last year, I discussed Vice Chancellor Glasscock’s letter ruling in Manti Holdings v. Authentix Acquisition, (Del. Ch.; 10/18) upholding a contractual waiver of ...

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Advance Notice: Del. Chancery Upholds Bylaw & Torpedoes Activist Slate

A Gibson Dunn memo reviews the Chancery Court’s recent transcript ruling in Bay Capital Finance, LLC v. Barnes & Noble Education, Inc., (Del. Ch.; 8/19), which ...

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Antitrust: State AGs Want Scrutiny of M&A’s Labor Market Impact

A Jenner & Block memo discusses a recent comment letter submitted to the FTC by 18 state AGs. The letter argues for greater emphasis on labor and workforce issues in ...

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Antitrust: Interlocking Directors in M&A

In late June, the FTC blogged some guidance about compliance issues arising under Section 8 of the Clayton Act, which prohibits an individual from serving as an officer ...

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Conflicts of Interest: Undisclosed CEO Comp Discussions Don’t Rebut BJR

A seller’s management team generally plays a prominent role in the sale process and in the negotiation of the purchase agreement, despite the fact that their interests ...

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The Art of the Buzzkill: Pessimistic CFOs Make for Winning M&A

A HBR article addresses a new study that confirms what a lot of people already thought – if you’re going to do well in mergers and acquisitions, you need a ...

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Indemnification: Chancery Says Buyer’s Notice of Claim Was Sufficient

The indemnification provisions contained in most acquisition agreements require any notice of a potential indemnity claim to lay out its factual basis in reasonable ...

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Books & Records: No Presumption of Confidentiality for DGCL Section 220 Productions

Earlier this week, in Tiger v. Boast Apparel, (Del.; 8/19), the Delaware Supreme Court rejected contentions that a presumption of confidentiality should apply to ...

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M&A Tax: Post-Reform Uncertainties Create Challenges for Dealmakers

A PwC blog discusses some of the uncertainties arising out of 2017’s tax reform legislation that continue to create challenges for dealmakers.  Here’s the ...

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Antitrust: Tech Tops Target List for 2019 Merger Investigations

The WSJ recently reported that the FTC’s ongoing probe of Facebook is focusing on its M&A activities and whether it used acquisitions to eliminate potential ...

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Activism: 1st Half of 2019 Highlights

A Lazard report summarizes shareholder activism during the first half of 2018. Here are some of the highlights: –  In H1 2019, 107 new campaigns targeted 99 ...

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NDAs: 6th Cir. Says No Breach in Parent’s Use of Confidential Information

Non-disclosure agreements often distinguish between the parties with whom information may be shared and those parties who are bound by the agreement.  A recent Weil ...

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Private Equity: Other People’s Money? Not So Much These Days. . .

Rising stock prices may be good for your 401(k), but a WSJ article says they’re putting the squeeze on private equity funds: Rising stock valuations are forcing ...

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Public M&A: Does Your Deal Trigger an 8-K Filing?

Depending on the circumstances, public companies may have make Form 8-K filings disclosing the terms of an acquisition or divestiture. That filing obligation may arise ...

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Practice Makes Perfect? Study Says Repeat Buyers Post Better Returns

I think most M&A lawyers would agree that working with experienced people usually results in a much smoother transaction process than what you experience working ...

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M&A Cybersecurity Diligence Lapses Result in £99 Million GDPR Fine

We’ve previously blogged about the growing importance of cybersecurity due diligence in M&A.  The UK Information Commissioner’s Office brought home some of ...

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Appraisal: “It’s Alive!” Unaffected Market Price Makes a Comeback

After the Supreme Court’s decision in Aruba Networks, most lawyers probably thought that Vice Chancellor Laster’s “unaffected market price” approach to ...

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Antitrust: European Commission Imposes €28mm Gun Jumping Fine

A few weeks ago, I blogged about Canon & Toshiba’s unsuccessful efforts to structure an acquisition around HSR’s pre-merger notification requirements. U.S. ...

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Private Equity: General Solicitation Under Rule 506(c)

Check out this Ropes & Gray podcast featuring former Corp Fin Director Keith Higgins addressing the use of Rule 506(c) in the context of PE fundraising. Here’s ...

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M&A Forum Clause: “Privity? We Don’t Need No Stinkin’ Privity!”

Okay, maybe the title’s play on the famous line from John Huston’s “Treasure of the Sierra Madre” was click bait, but hey – you clicked, didn’t you?  ...

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Synergy Disclosure: Headed for Your M&A Pro Formas?

I confess that I haven’t spent a lot of time on the SEC’s rule proposal on M&A financial statement requirements, but I thought that there might be a few ...

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Private Equity: Subscription Credit Facilities

Subscription credit facilities, which provide a debt financing source for PE funds secured by investors’ capital commitments, can be a useful tool to address liquidity ...

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Reverse Mergers: “SPACs – The Final Frontier”

It’s been 50 years since Apollo 11, and now it looks like the prospect of space tourism is finally on the horizon.  Personally, I don’t think I’m built for it. ...

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Does Revlon Matter? It Does in Delaware, But Elsewhere Not So Much

Here’s an interesting new study by several prominent scholars – including SEC Commissioner Robert Jackson – that asks the question: does Revlon matter? In ...

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Universal Proxies: Dissidents Win Board Control for First Time!

Here’s big news on the universal proxy front: yesterday, at EQT Corporation’s annual meeting, a dissident group won control of the company’s board through a ...

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Antitrust: FTC Provides Guidance on Divestitures

Divestitures have long been used to address regulators’ antitrust concerns.  Last month, the FTC’s Bureau of Competition offered up new guidance on what the ...

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M&A Fans Bid Strine Adieu

John Updike’s “Hub Fans Bid Kid Adieu” may be the best piece of sportswriting ever produced by somebody not named Heywood Broun, and it was the first thing that ...

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Delaware Weighs In On Shareholders As 3rd Party Beneficiaries

Shareholders’ ability to claim 3rd party beneficiary status under corporate M&A agreements is an area of considerable uncertainty. In Consolidated Edison v. ...

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Advance Notice Bylaws: Chancery Rebuffs Board’s Info Request to Nominee

Many advance notice bylaws contain language requiring proponents to submit such additional information about their director nominee as the board may reasonably request ...

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Asset Deals: “All or Substantially All of the Assets”

I remember my law school property professor’s discussion of the dreaded “rule against perpetuities.”  I didn’t get it, and neither did my classmates.  Finally, ...

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Not So Efficient Breach: Consent Right Breach Carries $126mm Price Tag

A Fox Rothschild blog, reviews the Delaware Supreme Court’s recent decision in Leaf Invenergy Co. v. Invenergy Renewables, LLC, in which it reversed the Chancery ...

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Antitrust: Vertical Mergers Under the Microscope?

Vertical mergers traditionally haven’t been subject to the same regulatory scrutiny as those involving direct competitors.  A recent Jenner & Block memo suggests ...

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Distressed M&A: A Comprehensive Outline of Acquisition Strategies

Buying distressed companies, whether through bankruptcy or otherwise, presents some unique challenges – as well as some unique opportunities.  Wachtell provides a ...

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Fraudulent Transfers: SDNY Revives 546(e) Bankruptcy Safe Harbor

Last year, the SCOTUS created significant uncertainty concerning the application of a commonly used mechanism to protect former shareholders in an LBO from ...

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SEC Proposes Overhaul of Rules on Financial Info for M&A

The SEC recently issued a 224-page proposal that would make significant changes to the rules governing the financial information that public companies must provide for ...

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Antitrust: Longer Investigations & Smaller Reverse Break Fees

According to Dechert’s latest report on antitrust merger investigations, the number of significant U.S. investigations declined almost 40% during the 12 months ...

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Private Equity: Navigating the Challenge of Buying a Family Business

Family businesses are unique in many ways – and the process by which they find a buyer is often one of them. DLA Piper has some tips for private equity sponsors on how ...

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Antitrust: Can You Help Yourself With “Self Help” Remedies?

In a recent memo, King & Spalding addresses the role that “self help” remedies played in the successful defense of the DOJ’s challenge to the AT&T/Time ...

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Spin-Offs: IRS Eases “Active Trade or Business” Requirements

In order to for a spin-off to qualify under Section 355 of the Tax Code, the parent and the subsidiary must be engaged in an “active trade or business” immediately ...

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Due Diligence: Preserving Insurance Assets

A recent Hunton Andrews Kurth memo says that insurance assets are sometimes overlooked during the due diligence process, and that parties often neglect to take the steps ...

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Divestitures: Advance Prep is Key to Creating Shareholder Value

Most companies are geared up to buy businesses, not sell them – and that is reflected in most companies’ post-divestiture performance. According to a recent Willis ...

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Earnouts: No Duty to Maximize Contingent Consideration

The Delaware Chancery Court recently held that a buyer was not under an obligation to maximize the amount of an earnout potentially payable to the sellers subsequent to ...

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More Than a Grain of SALT: State & Local Tax Issues in M&A

State and local tax (SALT) issues are sometimes below dealmakers’ radar screens – but they can pack quite a wallop if they aren’t properly taken into account.  A ...

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National Security: CFIUS Flexes Its Fining Muscles

CFIUS recently announced that it had imposed a $1 million civil monetary penalty against an undisclosed entity for repeatedly breaching a 2016 mitigation agreement. ...

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Appraisal: Delaware Supreme Court Gets Mixed Reviews for Aruba

The early reviews on the Delaware Supreme Court’s Aruba Networks decision are coming in – and they’re mixed.  Academics have a lot of questions about the ...

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Study: Private Target Deal Terms

The SRS Acquiom study reviews the financial & other terms of 1,200 private target deals that closed during the period from 2014 through 2018. Here are some of the ...

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