Earnouts: Buyer’s Discretionary Authority Doesn’t Bar Claim

When negotiating an earnout, buyers typically resist efforts to tie their hands when it comes to operating a business post closing. Frequently, the contract expressly ...

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Letters of Intent: Traps for the Unwary

I have never minced words when it comes to my personal disdain for letters of intent, which is one reason why I found a Kramer Levin memo on some of the potential ...

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Spin Offs: Wachtell Lipton Updates Its Guide

Wachtell Lipton recently issued the 2021 edition of its “Spin-Off Guide.” This 79-page publication is a terrific resource for getting up to speed on the wide variety ...

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National Security: The Growing Importance of Export Controls

According to a Shearman blog, it isn’t just CFIUS that foreign investors in U.S. businesses need to keep in mind, but also the potential implications of U.S. export ...

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M&A Projections: Third Circuit Dismisses Claims Based on Downside Case Disclosure

Over the years, financial projections used in fairness opinions and board presentations have proven to be popular targets for the plaintiffs bar when bringing M&A ...

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Appraisal Statute Doesn’t Bar Extraordinary Dividend as Part of Merger

It’s not unprecedented for a seller to pay an extraordinary dividend as part of a merger, but there’s extraordinary and then there’s extraordinary! The situation ...

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Antitrust: 7-Eleven Acquires Speedway Despite FTC Objections

At some point in their careers, every deal lawyer has been involved in a situation in which the business decision is made that, despite a potentially significant ...

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Appraisal: Delaware Chancery Permits Reverse Veil Piercing

In a case of first impression, Vice Chancellor Slights issued a 99-page opinion in Manichean Capital v. Exela Technologies, (Del. Ch.; 5/21), holding that the plaintiffs ...

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Stockholder Votes: Sometimes, Not to Decide is to Decide

Professor Ann Lipton recently blogged about the battle for The Tribune Company. Her blog provides a nice overview of all the drama surrounding the deal, including the ...

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Post-Closing Disputes: New Del. Case Addresses Purchase Price Adjustments

It’s pretty common to appoint an independent accountant to referee post-closing purchase price adjustment disputes. It’s also pretty common to fight about whether a ...

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Controllers: Del. Chancery Rejects Challenge to Committee Independence

In Franchi v. Firestone, (Del. Ch.; 5/21), the Chancery Court rejected breach of fiduciary duty allegations arising out of a controlling stockholder’s take-private ...

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Appraisal: Fair Value Adjusted for Post-Signing Developments

In Aruba Networks, the Delaware Supreme Court held that Section 262(h) of the DGCL calls for an appraisal proceeding to determine the fair value of a dissenting share as ...

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Divestment: Breaking the Cycle of Inaction

One of the most interesting takeaways from EY’s recent Global Corporate Divestment Study is that 78% of companies surveyed said that they held onto assets too long ...

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Crypto M&A: The Central Role of Money Transfer Regulations

A Weil blog says that cryptocurrency-related M&A may be the next big thing, and details some of the challenges presented by federal and state money transfer, or MT, ...

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Exclusive Forum Bylaws: Farewell to Section 14(a) Claims?

In Lee v. Fisher, (ND Cal.; 4/21), a California federal magistrate dismissed federal disclosure claims and state law derivative claims filed in that court on the basis ...

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Study: Private Target Deal Terms

SRS Acquiom recently released its annual M&A Deal Terms Study, which reviews the financial and other terms of 1,400 private target deals that closed during the ...

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Earnouts: Del. Chancery Refuses to Re-Write Contract Terms

In Obsidian Finance Group v. Identity Theft Guard Solutions, (Del. Ch.; 4/21), Vice Chancellor Slights held that a seller was not entitled to an earnout payment that was ...

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National Security: The U.K. Adopts a New Review Regime

Last month, the U.K. enacted the National Security and Investment Act 2021, which makes substantial changes to the U.K.’s foreign investment rules. According to a ...

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Disclosure: Board’s Delegation of Proxy to Management Allegedly “Bad Faith”

Last week, in In Re Pattern Energy Group Inc. Stockholders Litigation, (Del. Ch.; 5/21), Vice Chancellor Zurn refused to dismiss claims non-exculpated breaches of ...

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A New Approach to MACs

As we’ve seen repeatedly over the years, determining whether or not a “material adverse change” in a target’s business is not a straightforward process. However, ...

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Nevada Supreme Court Applies BJR to Controlling Shareholder Transaction

A Sullivan & Cromwell memo reviews a recent Nevada Supreme Court decision holding that the default standard of review for a transaction involving a controlling ...

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Specific Performance: Del. Chancery Orders PE Buyer to Close

In most private equity acquisition agreements, specific performance provisions allow the seller to compel the buyer to close only if the buyer’s debt financing is ...

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M&A: A Comprehensive Outline of Delaware Issues

Morris Nichols recently published “Mergers & Acquisitions: A Delaware Checklist.” This 168-page document provides a comprehensive outline of issues relating to ...

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Fraudulent Transfers: 2d Circuit’s Revival of Bankruptcy Safe Harbor Stands

A few years ago, I blogged about how the SDNY’s decision in the Tribune Company case revived a widely used safe harbor protecting former shareholders in an LBO from ...

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De-SPACs: Fiduciary Duties

A Sidley blog takes a hard look at director & controlling stockholder fiduciary duties in the context of a de-SPAC transaction. I haven’t seen much written about ...

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The Ties That Bind: Limits On A CEO’s Authority

I think most deal lawyers would agree that one of the most dangerous situations you’re likely to face during your career is a CEO with a bad case of “deal fever” ...

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Post-Closing: Dealing with “People Challenges” in M&A

A Willis Towers Watson memo discusses strategies that buyers can employ during the pre-closing period to deal with some of the “people challenges” they’re likely ...

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Controllers: Fiduciary Duties Don’t Include Martyrdom

In RCS Creditor Trust v. Schorsch, (Del. Ch.; 3/21), the Delaware Chancery Court confirmed that while fiduciary duties impose a number of demands on controlling ...

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Activism: First Quarter Highlights

A Lazard report reviews shareholder activism during the first quarter of 2021. Here are some of the highlights: – Q1 2021 saw a second consecutive quarter of ...

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SPACs: Skepticism About Captive Insurance as a D&O Alternative

Sorry, but I’m afraid I’ve got another SPAC-related topic for you this morning. I recently blogged about the concept of using a captive insurance company to help ...

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Private Equity: Global Deal Value Soars in Q1

According to White & Case’s M&A Explorer blog, global PE deal value during the 1st quarter of 2021 reached levels that haven’t been seen in almost 15 years. ...

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Letters of Intent: NC Court Says Disclaimers Preclude Fraud Claims

I’m on the record as not being a big fan of letters of intent. There are several reasons for my disdain, and one of them relates to the lingering uncertainty that – ...

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SPACs: Here Come the Lawsuits. . .

SPACs have caused an earthquake in the capital markets over the past year, and now it looks like the inevitable tsunami of litigation may be beginning to build. A Sidley ...

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Special Committees: 2020 Delaware Developments

A well-functioning special committee can play a key role in helping to protect against fiduciary duty claims in transactions involving controlling stockholders. What’s ...

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Disclosure: Mass. Court Says No Duty to Disclose Preliminary Merger Negotiations

A Goodwin memo reviews a Massachusetts trial court’s recent decision in Athru Group Holdings v. SHYFT Analytics, (Mass. Supr. Ct.; 3/21). In that case, the Court ...

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SPACs: Less Risky Than IPOs? Corp Fin Chief Says “Don’t Bet On It”

As I’ve previously blogged, some commentators have suggested a driving force behind the SPAC boom may be the availability of the PSLRA safe harbor for a de-SPAC ...

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Antitrust: Amended EC Policy Allows Review of Non-Reportable “Killer Acquisitions”

The tougher environment for antitrust merger reviews isn’t limited to the United States. A Davis Polk memo says that recent amendments to the European Commission’s ...

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Transactional Insurance: The Year in Review

A Marsh report reviews the transactional risk insurance market in the U.S. & Canada during 2020. The report notes that despite the challenges created by the ...

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Antitrust: FTC Challenges Vertical Merger

On Tuesday, the FTC announced that it had filed an administrative complaint & authorized a federal lawsuit to stop Illumina’s $7.1 billion proposed acquisition of ...

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Comparability Provisions: Treatment of Employees in M&A Agreements

Acquisition agreements often include language under which the buyer promises that the target’s will continue to receive compensation & benefits comparable to those ...

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M&A Agreements: Del. Chancery Rejects Seller’s Attempt to Reclaim Pre-Closing Cash

Yesterday, the Delaware Chancery Court rejected a seller’s claims that it was entitled to cash held in the target’s bank account that it neglected to withdraw prior ...

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Exclusive Forum Bylaws: Stabilizing D&O Rates?

Last year, in Sciabacucchi v. Salzberg, (Del. 3/20), the Delaware Supreme Court held that a Delaware corporation could adopt a federal forum bylaw compelling ...

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Private Equity: SPACs Provide Competition for Tech Deals

There are a whole lot of SPACs sitting on a whole lot of money that they need to put to work. According to a PitchBook article, that means that private equity sponsors ...

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Antitrust: Make Sure the HSR Clock Has Started Running

Over on its “Competition Matters” blog, the FTC recently provided some reminders to companies about the importance of making sure they’ve received official ...

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Officer & Controller Liability: Vice Chancellor Laster Speaks!

One of the great things about the Delaware judiciary is their willingness to weigh-in on important legal issues outside of the courtroom. That’s sometimes prompted ...

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SPACs: The Captive Insurance Alternative

With SPACs & their directors increasingly being targeted for litigation and the D&O insurance market tightening, a Morgan Lewis memo says that captive insurance ...

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Books & Records: Can Inspection Rights be Waived in Delaware?

A Sidley blog notes that recent Delaware case law suggests that entities may limit the right of equity holders to demand inspection of books & records. Whether ...

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Antitrust: NY Legislation Would Mandate Pre-Merger Notification

Can we talk about New York for a minute? I grew up there, many of my family members still live there, and I think The Empire State has a lot to recommend it – but the ...

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Officer Liability: Del. Chancery Again Endorses “Fraud on the Board” Claim

I’ve blogged quite a bit over the past year about the Chancery Court’s unwillingness to dismiss a variety of officer liability claims. Allegations that officer ...

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Intellectual Property Issues in M&A: A Deep Dive

For many companies in technology-related industries, intellectual property rights are fundamental to the value proposition of a proposed acquisition. Even outside of ...

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Private Equity: Navigating Portfolio Company Conflicts

Fund sponsors typically obtain a variety of rights in connection with their investment in a portfolio company. These include liquidation preferences, director ...

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D&O Insurance: “Forget It Jake, It’s Delaware. . .”

Remember the last line of the classic movie “Chinatown”? My guess is that the D&O insurance industry has the same feeling as Jack Nicholson’s character after ...

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Del. Supreme Court Says Parties May Limit Liability for Non-Intentional Fraud

Delaware defines common law fraud to include both intentional and reckless misrepresentations. In a recent decision, the Delaware Supreme Court overruled a Superior ...

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SPAC Mergers: A Guide to SEC Filing & Disclosure Requirements

If you are looking for a concise guide to the SEC filing & disclosure requirements applicable to a de-SPAC transaction, check out the 31-page memo from Grant ...

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Poison Pills: A Recap of 2020 Pill Adoptions & Terms

As we’ve previously noted, poison pills experienced a bit of a renaissance in 2020, with many companies opting to put a pill in place in response to the market ...

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Controllers: What’s The Standard of Review for a Sale to a Third Party?

Last month, I blogged about Vice Chancellor Laster’s decision in Firefighters’ Pension System v. Presidio, (Del. Ch.; 1/21). In that blog, I focused on the aiding ...

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SPACs: SEC Guidance a Road Map for De-SPAC Plaintiffs?

A Goodwin memo reviews how SPAC litigation continues to evolve, and notes that de-SPAC transactions are becoming attractive targets for the plaintiffs bar. That’s no ...

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Selling the Company: A Practical Guide for the Sale Process

DLA Piper recently released this 44-page guide to selling a company. The title – “Selling the Company: A Practical Guide for Directors & Officers” – suggests ...

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Del Chancery Strikes Down “Anti-Activist” Poison Pill

On Friday, Vice Chancellor Kathleen McCormick issued an 88-page opinion in The Williams Companies Stockholders Litigation, (Del. Ch.; 2/21), declaring the company’s ...

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Private Equity: Will a Gensler-Led SEC “Send Them A Message”?

The WSJ recently reported on speculation that, under the leadership of Gary Gensler, the SEC may target PE sponsors for enforcement scrutiny. Here’s an ...

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SPACs: The More Costly Route to the Public Market?

Earlier this week, electric vehicle startup Lucid Motors agreed to go public through a $24 billion SPAC merger. The deal is one of the largest SPAC transactions ever, ...

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Director Liability: Directors’ Duties are Fiduciary, Not Contractual

Corporate charter documents are often referred to as involving a “contract” between stockholders, the company and its directors, but a recent Chancery Court decision ...

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Antitrust: Agencies Increase Use of Sherman Act in M&A Enforcement

An Arnold & Porter memo looks at 2020 antitrust M&A enforcement and what may lie ahead in 2021. This excerpt says that the DOJ & FTC are increasingly turning ...

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Rep & Warranty Insurance: Are Higher Premiums Here to Stay?

RWI premiums rose sharply in the second half of 2020. A Woodruff Sawyer blog reviews the changes in the market during 2020, and considers whether the significantly ...

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Earnouts: Still Popular – And Still Problematic

Earnouts have long been a popular tool for bridging valuation gaps, and they’ve been particularly popular in life sciences transactions. A recent Cooley blog reviewing ...

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Delaware Choice of Law Provision Doesn’t Bar California Statutory Claim

In a recent letter ruling, Vice Chancellor Fioravanti held that a stock purchase agreement’s choice of law provision did not bar the plaintiff from asserting ...

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Appraisal: Key Takeaways From 2020 Delaware Decisions

A Morris James blog identifies 7 key takeaways from 2020 Delaware appraisal decisions. The most significant of these relate to the guidance these decisions provide ...

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Aiding & Abetting: Del. Chancery Allows Claim Against Buyer

Vice Chancellor Laster’s 115-page opinion in Firefighters’ Pension System v. Presidio, (Del. Ch.; 1/21), covers a lot of ground, but today I’m going to focus on ...

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Post-Closing: Purchase Price Adjustments & Indemnification Claims Study

SRS Acquiom recently released a multi-year study on post-closing M&A purchase price adjustments & indemnification claims covering nearly 600 private deals for ...

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Appraisal: Del. Supreme Court Affirms DCF-Based Fair Value Determination

It’s fair to say that the last few years haven’t been kind to discounted cash flow analysis when it comes to Delaware appraisal proceedings. Generally, Delaware ...

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National Security: CFIUS Targets China-backed Venture Deals

The WSJ recently reported that CFIUS has beefed up its enforcement team and is taking a hard look at venture investments by China-based entities, including deals that ...

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Derivative Claims: Del. Supreme Court Addresses Post-Closing Standing

A Dechert memo reviews the Delaware Supreme Court’s recent decision in Morris v. Spectra Energy Partners, (Del. Sup.; 1/21), which adopted the test established by the ...

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Antitrust: Agencies Suspend HSR Early Terminations Pending Process Review

Yesterday, the FTC & DOJ announced that the agencies “will be reviewing the processes and procedures used to grant early termination to filings made under the ...

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ESG: Have We Reached an Inflection Point for M&A?

Demands from investors and other stakeholders for companies increase to increase their focus on ESG issues have grown exponentially in recent years. While most of the ...

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SPACs: Is the PSLRA Safe Harbor Driving the Boom?

Bloomberg published an interesting opinion piece by Chris Bryant that suggests the SPAC boom may be driven by the fact that, unlike traditional IPOs, sponsors of a ...

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FTC Announces New HSR Thresholds

The FTC’s announcement of the new HSR thresholds beat Groundhog Day this year. Of course, that means that we at DealLawyers.com are getting a jump on our own harbinger ...

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Officer Liability: Del. Court Refuses to Dismiss Fraud Claims Against LLC Managers

In Surf’s Up Legacy Partners, LLC v. Virgin Fest, LLC, (Del. Super. 1/21), the Delaware Superior Court rejected efforts by a seller’s managers to dismiss the ...

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Post Closing Disputes: The Locked Box Alternative

A Grant Thornton report looks at some of the leading causes of post-closing disputes in M&A transactions and provides insight into how to prevent them. The report ...

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Shareholder Activism: 2020 In Review

A Sullivan & Cromwell memo takes a look at 2020’s activist campaigns and settlement agreements. Contrary to initial expectations, market volatility resulting from ...

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Poison Pills: Del. Chancery Skeptical of “Wolf Pack” Terms

In recent years, many companies have added so-called “wolf pack” provisions to their poison pills. This language is intended to ensure that the pill’s triggering ...

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M&A Projections: Safe Harbor? Don’t Count On It

Anne Lipton has an interesting blog that addresses the lengths to which judges will go to avoid providing liability protection to projections that look to be. . . well . ...

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M&A Finance: A Look Back At 2020 & Issues For 2021

Financing markets nearly shut down when the pandemic hit, but in contrast to the experience following the onset of the 2008 financial crisis, they didn’t stay that way ...

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When M&A Goes Wrong: Lessons From Divestitures

A recent Deal Law Wire blog from Norton Rose reviews a 2020 study addressing why companies divest businesses. The study found that a staggering 77% of divestitures are ...

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Controller’s Receipt of “Non-Ratable Benefit” Mandates Entire Fairness Review

Is a controlling stockholder’s “mere presence” on both sides of a transaction enough to invoke application of the entire fairness standard of review, or is ...

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Antitrust: How Aggressive Will the Biden FTC Be?

A Fried Frank memo discusses managing antitrust risk in the Biden Administration. After noting that regulators have evolved toward more enforcement & have ...

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Controllers: Viva Zapata! Del. Chancery Refuses to Dismiss WeWork Lawsuit

This may sound strange to most of you, but when I took Corporations in the fall of 1984, corporate law was kind of a sleepy backwater. Of course, the area awoke with a ...

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Busted Deals: What If LVMH & Tiffany Went to Trial?

Last year’s dispute between LVMH and Tiffany raised all sorts of intriguing legal issues, but the parties ultimately settled their case before the Chancery Court could ...

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Officer Liability: Recent Trends

Over the past few months, I’ve blogged about several decisions involving potential liability on the part of corporate officers. Frequently, these cases involve ...

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Indemnification: Del. Court Says No Attorneys Fees for 1st Party Claim

A recent Morris James blog discusses the Delaware Superior Court’s decision in Ashland LLC v. Heyman Trust, (Del. Super. 11/20), in which the Court held that the ...

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SPACs: Corp Fin Issues Disclosure Guidance for De-SPACs

Shortly before the Christmas holiday, the SEC’s Division of Corporation Finance issued CF Disclosure Guidance Topic: No. 11, which provides Corp Fin’s views ...

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Books & Records: Actionable Wrongdoing Not Required for “Proper Purpose”

A Wilson Sonsini memo reviews the Delaware Supreme Court’s recent decision in AmerisourceBergen v. Lebanon County Employees Retirement Fund, (Del. 12/20). In that ...

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Cross-Border: International Issues in Domestic Deals

In the wake of the pandemic, some cash-rich foreign acquirers are likely to take a heightened interest in U.S. targets. A Locke Lord memo says that one of the ...

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Private Equity: PE Funds On the Hunt for Deals in ’21

The results of a Lincoln International survey of more than 150 global private equity investors indicate that they have plenty of dry powder, and their top priority in ...

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More Lessons From the Stream TV Networks Decision

Last week, I blogged about Vice Chancellor Laster’s decision in Stream TV Networks v. SeeCubic, (Del. Ch.; 12/20). My blog focused on the DGCL Section 271 issue ...

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Busted Deals: Ontario Court’s Take on “Ordinary Course” in a Pandemic

In Canada’s first COVID-19 busted deal case, Fairstone Financial Holdings Inc. v Duo Bank of Canada, (Ont. Supr. Ct.; 12/20), an Ontario court rejected a buyer’s ...

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De-SPACs: Your Shareholders Might “Just Say No”

Okapi Partners’ Bruce Goldfarb has authored an interesting Forbes article on some of the issues associated with corralling investor support for de-SPAC transactions. ...

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Doing Deals Remotely: Long-Form Memos as Collaboration Tools

I wrote a bunch of due diligence memos back in the day. My magnum opus was a 200+ page masterpiece of monotony summarizing the results of my team’s review of ...

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DGCL Section 271 Doesn’t Apply to Insolvent Corp.’s Asset Transfer

Section 271 of the DGCL generally requires stockholder approval for a company’s sale of substantially all of its assets. Most of the litigation involving Section 271 ...

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Disclosure Claims: Another CEO Ends Up Holding the Bag

Last month, I blogged about the Chancery Court’s decision in In re Baker Hughes Merger Litigation, in which a seller’s CEO was left holding the bag on fiduciary duty ...

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Hostile Takeovers: On the Comeback Trail?

A Veritas memo discusses the increase in hostile takeover activity in recent months and offers some tips on takeover preparedness. This excerpt reviews some of the ...

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LBOs: Seller’s Directors on the Hook for Post-Closing Insolvency

Every now and again there’s a decision on director or shareholder liability in a bankruptcy that just fills corporate lawyers with dread, and you can usually count on ...

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Antitrust: Key Issues in U.S. Tech & Pharma Deals

The lawsuits filed yesterday by the FTC & a coalition of state AGs seeking to break up Facebook have further heightened the profile of antitrust issues in the tech ...

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Fee Shifting: A New Tool for Books & Records Plaintiffs?

Books & records demands under Section 220 of the DGCL are becoming more frequent, and Delaware courts have proven willing to expand the boundaries of the inspection ...

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Busted Deals: Del. Chancery Weighs In on COVID-19 Deal Terminations

We’ve all been waiting for the courts to provide some guidance on pandemic-related deal terminations. Last week, the Delaware Chancery Court became the first court to ...

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Activism: Perspectives on Proxy Fights

Activist Insights’ recent publication, “Proxy Fights 2020,” provides a variety of perspectives on avoiding, preparing for, contesting & winning proxy fights in ...

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Post-Closing Adjustments: COVID-19 Issues

A recent SRS Acquiom memo addresses some of the more novel post-closing scenarios that have arisen in M&A transactions as a result of the COVID-19 pandemic. Here’s ...

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Guest Blog: “The Deal Lawyer’s Weapons in the War on COVID-19”

Today’s blog comes from Prof. Samuel Thompson, Director of Penn State Law School’s Center for the Study of M&A. Prof. Thompson has written a new book titled, ...

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Busted Deals: Why Litigate If You’re Just Going to Renegotiate?

We’ve seen quite a few high profile COVID-19 busted deal cases that started out in litigation end up with a negotiated resolution. That’s not unusual; after all, ...

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Controllers: Del. Chancery Upholds Stock Issuance Dilution Claims (For Now)

In In re TerraForm Power, Inc. Stockholder Litigation, (Del. Ch.; 10/20), the Chancery Court refused to dismiss claims alleging that a company’s board and controlling ...

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National Security: U.K. Bill Would Heighten Scrutiny of FDI

Part of the fallout from the pandemic has been an acceleration of a global trend toward tighter regulation of foreign direct investments. A Simpson Thacher memo ...

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Disclosure: Del. Chancery Leaves CEO Holding the Bag for Alleged Proxy Deficiencies

Chancellor Bouchard’s recent decision in In re Baker Hughes Inc. Merger Litigation, (Del. Ch.; 10/20), illustrates the potential hazards faced by corporate officers ...

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Disclosure: When Are Merger Negotiations MNPI?

Over on TheCorporateCounsel.net, I recently blogged about the SEC’s enforcement action against Endeavor LLC, which arose out of the company’s implementation of a ...

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Activism: Preparing for What 2021 May Bring

A Morgan Lewis “white paper” takes a deep dive into what companies should be preparing for when it comes to shareholder activism during the 2021 proxy season. ...

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Simon/Taubman: Revised Deal Reduces Conditionality Along with Price

By now, you’ve probably heard the news that Simon Properties & Taubman Centers have agreed to settle their dispute and move forward with a deal at a purchase price ...

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D&O Insurance: The Importance of Tail Coverage for Seller’s Directors

A Woodruff Sawyer blog addresses the importance of “tail” coverage for the seller’s directors in an M&A transaction. Here’s an excerpt: In M&A, the ...

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Appraisal: Sound Process Leads to Deal Price Fair Value Determination

The Delaware Supreme Court’s recent decision in the Jarden appraisal proceeding appears to have given new life to the use of a target stock’s “unaffected market ...

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Due Diligence: Best Practices for FCPA & Anti-Bribery Issues

A Cahill memo addresses best practices for addressing FCPA and related anti-bribery issues during the due diligence phase of a potential acquisition and during the ...

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Post-Closing Adjustment: Seller’s “Unclean Hands” Don’t Excuse Buyer’s Delay

Most of the time, the Delaware Chancery Court’s opinions that are blog-worthy are quite lengthy. I run a volume business here, so when I find a short one that fits the ...

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Antitrust: What Does the FTC Want When It Asks for “All Documents”?

The FTC’s Bureau of Competition recently blogged some guidance about the types of communications covered by the “all documents” specifications in its Second ...

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Controllers: The Facebook Decision’s Lessons for M&A

While the Delaware Chancery Court’s recent decision in United Food & Commercial Workers v. Zuckerberg (Del. Ch.; 10/20) has attracted a lot of attention, the case ...

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Contract Fraud: Del. Chancery Upholds Another M&A-Related Claim

The Delaware Chancery Court’s recent decision in Roma Landmark Theaters v. Cohen Exhibition, (Del. Ch.; 9/20) represents the latest in a series of M&A-related ...

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Activism: Third Quarter Highlights

A Lazard report summarizes shareholder activism during the third quarter of 2020. Here are some of the highlights: – Q3 2020 represented the lowest level of ...

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The Election’s Impact On M&A: What Do Dealmakers Think?

As Americans head to the polls today, Datasite’s recent survey on how dealmakers think the election will impact M&A is particularly timely. Here are some of the ...

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Antitrust: How Will the Election Influence Merger Enforcement?

Dechert recently issued its quarterly report on antitrust merger investigations. The report says that investigative activity declined during Q3, with only four ...

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LVMH/Tiffany: $430MM Price Concession Buys More Certainty

It looks like LVMH & Tiffany decided to kiss and make up. Earlier this week, the parties announced that they had agreed to amend their existing merger agreement ...

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D&O Insurance: Del. Supreme Court Holds Appraisal Not a “Securities Claim”

Last year, I wrote about the Delaware Superior Court’s decision in Solera Holdings v. XL Specialty Ins., (Del. Super.; 7/19), which held that a D&O policy’s duty ...

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M&A Agreements: Who Holds the Pen?

Bloomberg Law recently surveyed deal lawyers to find out who takes the lead on drafting deal documents in M&A transactions. The results aren’t necessarily ...

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Aiding & Abetting: Del. Chancery Dismisses Claims Against Co-Investor

In Jacobs v. Meghji, (Del. Ch.; 10/20), the Delaware Chancery Court dismissed claims against an investor that participated side-by-side with a controlling stockholder in ...

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MAE Clauses & COVID-19: Guidance From Across the Pond

We’re still waiting on U.S. courts to address the issues surrounding MAE clauses & the pandemic, but at least one English court has weighed-in on them. A Goodwin ...

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SPACs: Sponsor Liability Risks

One thing that’s been conspicuously absent during 2020’s SPAC craze has been a discussion of some of the liability risks that go along with a “de-SPAC” merger ...

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Acquired Company Financials: A Quick Reference

I really like the Latham & Watkins “Guide to Acquired Business Financial Statements.” It provides a concise overview of the SEC’s acquired company financial ...

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National Security: An Overview of the New CFIUS Regime

If you’re looking to get your arms around the CFIUS national security review regime following the full implementation of FIRRMA, check out the Wilson Sonsini memo. ...

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M&A Trends: Dealmakers Expect Return to Pre-Pandemic Activity Levels

According to Deloitte’s 2020 M&A Trends Survey, 61% of U.S. dealmakers expect M&A activity to return to pre-COVID-19 levels within the next 12 months. The ...

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Beyond TikTok: Dealing with the Politicization of M&A

President Trump’s intervention to compel the sale of TikTok highlights the extent to which M&A has become politicized. But a CFO Dive article points out that the ...

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Revlon: Chancery Refuses to Dismiss “Paradigmatic” Complaint

Structuring and implementing a good sale process is essential if directors and officers are to satisfy their fiduciary obligations in M&A transactions. That’s ...

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Private Equity: Loyalty Issues for Designated Directors

It’s pretty standard for private equity funds to have the right to designate directors of their portfolio companies. There are all sorts of good business reasons to do ...

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COVID-19 Uncertainties: The Stock-for-Stock Alternative

The market volatility and business uncertainties resulting from the pandemic have made it harder for potential buyers and sellers to see eye-to-eye on valuation and have ...

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Antitrust: Mitigating the Risk of Non-Competes

Non-competition agreements are often a key component of an M&A transaction. But as discussed in a McDermott Will & Emery memo, they are also an enforcement ...

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Change in Ownership: SBA Guidance on Consent Requirements for PPP Borrowers

I’ve previously blogged about navigating the consent requirements applicable to M&A transactions involving PPP borrower targets. Last Friday, the SBA issued ...

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Activism & Hostile Bids: The Vacation’s Over

In the early days of the pandemic, it seemed that activism and hostile activity took a bit of a holiday. Market volatility made activists unwilling to commit to ...

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M&A Leaks Report: Dealmakers More Chatty in 2019

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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M&A Litigation: Contractual Fraud Claims Are the New Black

As I read the Chancery Court’s recent decision in Pilot Air Freight v. Manna Freight Systems, (Del. Ch.; 9/20), I experienced a very strong feeling of deja vu. Maybe ...

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Better Days Ahead for Dealmaking?

At this point, it’s not exactly news that 2020 hasn’t been a great year for M&A, but there are signs that activity has been picking up over the past few months. ...

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Breakup at Tiffany’s Part Deux: The Empire Strikes Back!

When Tiffany & Co. filed a lawsuit against LVMH seeking to stop the French luxury giant from backing out of its deal to acquire the company, LVMH declared that ...

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Busted Deals: Specific Performance a Tough Sell in COVID-19 Lawsuits

A Cooley blog reviews the busted deal litigation that’s arisen following the onset of the pandemic. Among other things, the blog discusses the challenges that sellers ...

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National Security: Treasury Tweaks CFIUS Mandatory Declaration Rules

Earlier this month, the Treasury Dept. amended the rules governing CFIUS mandatory declarations. Here’s the intro from a Simpson Thacher memo: On September 15, ...

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Del. Court Says Merger is Assignment “By Operation of Law”

A recent Delaware Superior Court decision serves as a reminder that, under Delaware law, a merger may well involve an assignment by operation of law — even if the ...

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Antitrust: Proposed HSR Change Could Make Activism Stealthier

On Monday, the FTC issued a Notice of Proposed Rulemaking that could mean big changes when it comes to the obligations of activist investors to make HSR filings. ...

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Busted Deals: Simon Accuses Taubman of Additional Breach

Simon Properties’ lawsuit against Taubman Centers is one of the more interesting pieces of pandemic-related busted deal litigation. That case isn’t pending in ...

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Exclusive Forum Bylaws: You Win Some, You Lose Some

A couple of recent California decisions provide some good news — and some bad news — when it comes to the enforceability of corporate exclusive forum bylaws. The ...

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COVID-19 Busted Deals: Fewer Lawsuits Than You Might Think

There’s an interesting analysis from Bloomberg Law that says despite the handful of high-profile deal termination disputes that we’ve seen since the pandemic upended ...

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Earnouts: Best Practices for Avoiding Disputes in the COVID-19 Era

We’ve seen a lot of insightful commentary on earnouts during the pandemic, and I’ve blogged about the topic quite a bit. The need to bridge valuation gaps is more ...

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SPACs: What’s Behind the Craze?

For most people and businesses, 2020 has been a lousy year, but that’s definitely not the case for SPACs. A PitchBook article explains how the events of 2020 have ...

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Fiduciary Duties: Exculpatory Charter Provision Saves the Day

Delaware’s Corwin doctrine has become the first line of defense against many M&A fiduciary duty claims. But the Chancery Court’s recent decision in In re: USG ...

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Breakup at Tiffany’s? LVMH Looks for an Exit

Yesterday’s New York Times DealBook had a nice write-up on the battle brewing between LVMH and Tiffany & Co. over the French luxury giant’s efforts to back out ...

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Private Equity: 10 Steps for Reducing Sponsors’ Liability Risks at Portfolio Companies

Even before the disruptions caused by the COVID-19 pandemic, private equity sponsors were increasingly on the receiving end of claims seeking to hold them responsible ...

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Antitrust: Overview of Q2 M&A Regulatory Actions

A McDermott Will & Emery memo provides a “snapshot” of U.S. and EU antitrust regulatory activity during the second quarter of 2020. Here’s the intro: In the ...

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Conflicts of Interest: Chancery Highlights Limits of Directors’ Abstention Defense

When I was a young lawyer, a senior labor partner in my firm kept what he called a “Pontius Pilate Kit” on prominent display in his office. It consisted of a bottle ...

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Antitrust: DOJ Issues Merger Remedies Manual

Yesterday, the DOJ released its 38-page Merger Remedies Manual, which updates its 2004 Policy Guide and provides a framework for the Antitrust Division to structure and ...

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Implied Covenant: Buyer’s “Hail Mary” Falls Incomplete

A claim based on the implied covenant of good faith and fair dealing has always reminded me of the “Hail Mary” play in football — it’s usually a desperate last ...

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Venture Capital: Silicon Valley Venture Capital Survey

Fenwick & West recently published its Silicon Valley Venture Capital Survey for the second quarter of 2020. The survey analyzed the terms of 203 Silicon Valley ...

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Anthem-Cigna: Chancery (Eventually) Says, “You’ll Get Nothing & Like It!”

I’m told that the Delaware Chancery Court’s decision in Akorn v. Fresenius, (Del. Ch.; 10/18), was the longest opinion in the Court’s storied history. Well, it ...

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PPP Loans: Navigating Lender & SBA Consents in M&A Transactions

I’ve previously blogged about some of the complications that parties to an M&A transaction have to deal with when the target is a borrower under the SBA’s ...

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Del. Chancery Refuses to Dismiss Fraud Claims Tied to Breach of Rep

One of the things that buyers worry most about is the seller’s loss of a major customer between signing and closing. That’s why acquisition agreements contain reps ...

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Assessing The Pandemic’s Impact on M&A Going Forward

Deal activity took a nosedive when the pandemic hit, but as buyers and sellers begin to re-engage, they find themselves in a changed environment. A Simpson Thacher memo ...

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Fiduciary Duties: Post-Announcement Renegotiation of Deal Terms

I’ve previously blogged about the Delaware Supreme Court’s decision in Fort Myers Gen. Empl. Pension Fund v. Haley, (Del. 7/20), and the Chancery Court’s decision ...

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Attorney-Client: The Limits of Privilege in Antitrust Merger Review

A WilmerHale memo discusses a recent federal court decision that addresses a variety of attorney-client privilege issues arising out of the antitrust merger review ...

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National Security: Post-Closing CFIUS Review Unwinds TikTok Deal

Unless you’ve been living under a rock for the last several weeks, you’re well aware of President Trump’s efforts to first ban, and then compel the sale of, the ...

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Fee-Shifting: Del. Chancery Upholds “Loser Pays” Contract Term

In 2015, the DGCL was amended to expressly prohibit the use of fee-shifting bylaw provisions in connection with internal corporate claims, but are contractual ...

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Fraud: Del. Chancery Upholds Claims Based on Allegedly False Reps

Contractual reliance disclaimers can be helpful in precluding fraud claims based on non-contractual statements, but as the Delaware Chancery Court’s decision in ...

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R&W Insurance: Do Insurers Pay Claims?

I’ve blogged a lot about R&W Insurance, and with good reason — it’s become a central part of the deal process for private company M&A. But until now, I ...

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Antitrust: HSR Second Requests Up in 2019, but Challenges Down

The FTC and DOJ published their HSR Act Annual Report last month, and it discloses that while HSR second requests rose during 2019, the percentage of deals challenged ...

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SPACs: Does Ackman’s SPAC Change the Game?

A Debevoise memo takes a look at the SPAC recently launched by Bill Ackman’s Pershing Square Capital, and notes that in addition to being the largest SPAC IPO of all ...

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National Security: Treasury Publishes 2019 CFIUS Annual Report

On July 31, 2020, the Treasury Department published its Annual Report to Congress on all notices filed with CFIUS in 2019 and all reviews or investigations completed ...

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Del. Chancery Dismisses Challenge to M&A Retention Comp

The Delaware Chancery Court recently rejected a challenge to a retention plan implemented by Fox in connection with the spinoff of its broadcasting business to a new ...

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Private Equity: Portfolio Company Borrowers Driving COVID-19 Defaults

According to the recent “Institutional Investor” article, PE-backed firms have led the charge when it comes to defaults on indebtedness related to COVID-19 — and ...

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Antitrust: The FTC Knows If You’ve Been Bad or Good. . .

I never thought that the FTC had anything in common with Santa Claus until I read this recent bit of guidance from the Bureau of Competition. It turns out that, like ...

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Private Equity: COVID-19’s Global Impact

A recent Ropes & Gray memo reviews the pandemic’s impact on private equity around the globe. For the North American market, topics include, among others, portfolio ...

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Books & Records: The Chancery Court Provides a Primer

Francis Pileggi recently blogged about Vice Chancellor Laster’s decision in Woods v. Sahara Enterprises, (Del. Ch.; 7/20). He characterizes the opinion as “must ...

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Antitakeover: Evaluating Your Defenses

A Bass Berry blog says that it’s a good time for companies to take a hard look at their defensive profiles. Here’s the intro: As public companies continue to ...

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Due Diligence: Prepared Sellers Stand Out in Buyer’s Market

A recent Norton Rose Fulbright blog stresses the importance of sellers being prepared for buyer due diligence if they want to successfully pursue a transaction in the ...

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SPAC Acquisitions: Key Considerations for Targets

SPACs are definitely having a moment, and the current boom in SPAC IPOs will likely be followed by a boom in “De-SPAC” acquisition transactions — or at least ...

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Del. Chancery Sustains Aiding & Abetting Claim Against Financial Advisor

Do you remember Cede v. Technicolor? Litigation involving Technicolor’s 1983 going private deal dragged on for over 20 years, and made five trips to the Delaware ...

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Private Equity: PE Grabs Larger Piece of the Small & Mid-Market Pie

According to a recent Bloomberg Law analysis, the COVID-19 pandemic may be depressing the M&A market, but PE funds aren’t wasting the crisis. Instead, they’re ...

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Appraisal: Chancery Applies DCF to Determine Squeeze-Out Fair Value

When I taught law school, I absolutely hated grading exams. It was a frustrating and humbling (am I really this bad of a teacher?) process, and an extremely time ...

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Antitrust: FTC Unhappy With Slow Divestitures

According to a McDermott Will & Emery blog, the FTC has its nose out of joint about the pace of implementation of required post-closing divestitures — and that may ...

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M&A Disclosure: 3rd Cir. Says Proxy “Risk Factors” Require Specifics

Last month, in Jaroslawicz v. M&T Bank Corp., (3rd Cir; 6/20), the 3rd Circuit vacated the dismissal of a Section 14(a) claim premised on allegedly inadequate risk ...

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Controllers: Minority Shareholder Negotiations Result in Loss of MFW

It’s easy to see why a controlling shareholder contemplating a take-private transaction would want to reach out to obtain support from large minority shareholders ...

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Antitrust: Merger Review During the COVID-19 Crisis

A recent Sidley memo (p. 6) provides insights into the antitrust merger review process during the COVID-19 crisis. We’ve touched on some of the memo’s key takeaways ...

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Private Equity: Sponsors Preparing for Exit Window to Open

With valuations taking a big hit and the turmoil that the pandemic has created for many portfolio companies, many sponsors that might otherwise have sought an exit this ...

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Reasons for Optimism? CFOs Bullish on M&A Prospects

There hasn’t been much for dealmakers to cheer about in recent months, but a Deloitte report suggests that there may be some reason for optimism about what lies ahead ...

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Appraisal: Del. Supreme Court Upholds “Unaffected Market Price” Valuation

Remember when the Delaware Supreme Court issued a sharply worded opinion reversing Vice Chancellor Laster’s decision to adopt an “unaffected market price” approach ...

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Activism: Investors Are Willing to Listen to the Pitch

I don’t think it will come as a surprise to many public companies to learn that their investors are becoming more open to listening to pitches from activist ...

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M&A Financials: SEC’s New Rules Give Carve-Outs a Break

Public companies acquiring divisions or product lines have often had to seek Corp Fin’s sign-off on the use of abbreviated acquired company financial statements in ...

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Earnouts: Structuring Considerations for the COVID-19 Environment

A recent Sidley memo discusses how the implications of the COVID-19 crisis may require buyers and sellers to scrutinize earnout provisions with a “new lens,” whether ...

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M&A “Common Interest” Privilege Doesn’t Cover Commercial Interests

The “common interest” privilege protects privileged information that is exchanged by two parties represented by counsel concerning a legal matter in which they share ...

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Antitrust: FTC & DOJ Issue Vertical Merger Guidelines

The FTC & DOJ just issued the final version of their Vertical Merger Guidelines. As I mentioned when I wrote about the draft guidelines issued last January, this ...

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Conflicts of Interest: Undisclosed Comp Discussions Rebut BJR

Yesterday, in Fort Myers Gen. Emp. Pension Fund v. Haley, (Del. 6/20), the Delaware Supreme Court overruled an earlier Chancery Court decision and held that a seller ...

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M&A Disclosure Claims: Somebody Actually Litigated One!

Post-Trulia, most M&A disclosure lawsuits have been brought in federal court and have alleged violations of Section 14(a) & Rule 14a-9 under the Exchange Act. ...

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National Security: CFIUS Prepares to Drop the Hammer

Earlier this month, the Treasury Department announced the creation of a new website dedicated to CFIUS’ monitoring and enforcement functions. A Wilson Sonsini memo ...

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