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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Fiduciary Duties: Can a Target Aid & Abet a Buyer’s Breach?

Aiding and abetting can be a squishy concept, which — along with the potential for the occasional jackpot — has made it an appealing claim for plaintiffs to assert ...

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Controllers: Dell Redemption Flunks MFW

Some companies just seem to be magnets for litigation, and Dell is definitely one of them. The company’s latest visit to the Delaware Chancery Court, In re Dell ...

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M&A Agreements: Defining “Ordinary Course” in Extraordinary Times

Many buyers attempting to terminate acquisitions during the COVID-19 crisis have alleged not only that the agreement’s MAE clause has been triggered by the ...

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Shareholder Representative Appointment Provision Limits Discovery

In transactions involving a number of shareholders, it is fairly common to see a shareholder representative appointed to act on behalf of those holders with respect to ...

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Busted Deals: Simon/Taubman’s Twist On “Ordinary Course” Claims

I received news of Simon Property Group’s decision to terminate its $3.6 billion deal with Taubman Centers in my inbox last week. I knew that the termination and ...

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Will CARES Act NOL Breaks Spur M&A Activity?

Although the various programs providing direct financial support to businesses are the most well-known aspects of the CARES Act, the statute also rolls back some of the ...

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Take Privates: An Overview of the Process

Some public companies — particularly those in sectors that have been hit hard by COVID-19 and the collapse of energy prices — may be thinking seriously about an MBO ...

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Beyond Earnouts: Bridging Valuation Gaps in the Current Environment

A recent Seyfarth memo provides an overview of creative ways to bridge valuation gaps between buyers and sellers. The memo discusses earnouts, but it addresses a number ...

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Activism: What’s a Little Tip-Off Among Friends?

Morgan Lewis’s Sean Donahue recently tweeted about a new study that found evidence that activists are leaking information about upcoming campaigns to institutional ...

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Revisiting Earnouts During the COVID-19 Era

One of the consequences of the COVID-19 pandemic is that buyers and sellers are increasingly finding themselves in situations where they need to find a way to bridge a ...

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Attorney-Client: Who Owns the Privilege in Asset Deals?

The default rule in Delaware is that post-closing, the seller’s attorney-client privilege is transferred to the buyer in a deal structured as a merger. But what about ...

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The Long View: The COVID-19 Pandemic’s Influence on M&A

A Freshfields report takes an in-depth look at how the COVID-19 pandemic could influence M&A over the longer term. The report provides a thoughtful and wide-ranging ...

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Del. Chancery Dismisses Claims Based on Anti-Reliance Language

In its recent decision in Midcap Funding X Trust v. Graebel Companies, (Del. Ch.; 4/20), the Delaware Chancery Court relied upon a contractual disclaimer of reliance to ...

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Due Diligence: Dealing with PPP Borrowers

Many companies have received loans under the SBA’s Paycheck Protection Program, and with those borrowers likely to come under close scrutiny from regulators in the ...

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Poison Pills: Overview of NOL Rights Plans

I’ve previously written about the revival of traditional “poison pill” rights plans as a result of COVID-19 crisis-related market volatility, but companies with ...

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M&A Financials: Working with the New Rules

I recently wrote about the SEC’s changes to the rules governing financial information required for significant acquisitions and divestitures. We’ve received a number ...

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Antitrust: Failing Firm Defense? You’ve Got Some Persuading to Do…

Under current market conditions, it probably wouldn’t be a big surprise to see more than a few potential M&A transactions attempt to surmount potential antitrust ...

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M&A Market: What Deals are Getting Done?

I’ve previously blogged about the rather dismal conditions in the M&A marketplace, but despite the challenging environment, some deals are getting done. A recent ...

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National Security: Changes Proposed to CFIUS Mandatory Declaration Rules

Last week, the Treasury Department proposed changes to CFIUS’s mandatory declaration filing rules. The intro to a Locke Lord memo summarizes the proposed ...

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Distressed Deals: Bankruptcy Court Ruling Tarnishes “Golden Shares”

The term “golden share” is used to refer to an equity security that provides its holder with a number of consent rights, including the right to block a bankruptcy ...

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SEC Adopts Overhaul of M&A Financial Info

Yesterday, the SEC announced that it had adopted amendments overhauling the rules governing the financial information that public companies must provide for significant ...

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A Buyer’s Market: Deal Structure & Risk Sharing in the COVID-19 Era

Prairie Capital recently published a report on the COVID-19 pandemic’s impact on the M&A market. The publication covers many topics, but I thought what it had to ...

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Antitrust: FTC Provides Guidance on HSR Filing Fees

The FTC recently blogged some reminders and tips on HSR filing fees. Paying the HSR filing fee in a timely manner is important, because the HSR waiting period doesn’t ...

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Due Diligence: Getting Your Arms Around COVID-19 Issues

The COVID-19 pandemic has added several additional layers of complexity to the due diligence process. A Latham memo identifies some of the issues buyers should consider ...

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Busted Deals: Lessons From COVID-19 Litigation

A Winston & Strawn memo reviews the handful of COVID-19 related deal termination lawsuits that have been brought thus far and says that there are lessons that can be ...

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Private Equity: PE Fund Reputational Worries Shift in the COVID-19 Era

Private equity deals often involve a lot of contingencies, and the fund’s financial downside is usually limited to some kind of reverse breakup fee. In these ...

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Distressed M&A: Dealmaking In The New Normal

Unfortunately, it’s probably fair to say that many — if not most — of the M&A deals that are likely to get done in the near future are going to involve ...

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National Security: Governments Heighten Scrutiny of FDI

Last month, I wrote about the EU’s efforts to protect suppliers of essential products from opportunistic foreign buyers. A Davis Polk memo says that this tighter ...

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Entire Fairness: Chancery OKs Strategy to Fund Controller Preferred Redemption

It sure seems like the “entire fairness” standard ain’t what it used to be. Back when I had hair, Delaware courts referred to the choice of whether to apply the ...

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Study: Private Target Deal Terms

A SRS Acquiom study reviews the financial and other terms of 1,200 private target deals that closed during the period from 2015 through 2019. Here are some of the key ...

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Deal Terminations: “Things Fall Apart…”

It’s rare that M&A news has me waxing poetic, but yesterday’s announcement that L Brands and Sycamore Partners decided to end their deal, coupled with the news ...

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Controllers: When Does a Minority Holder “Roll” Its Way into Control?

It isn’t unusual for one or more target shareholders to “roll” their equity interests over into the acquiring entity, but if the deal involves a controlling ...

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Venture Capital: What Will COVID-19 Mean for Financing Terms?

Many private companies find themselves in need of financing and may be thinking about tapping fund investors in order to meet their need for capital. A Sidley memo has ...

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National Security: And Just Like That, CFIUS Has a Filing Fee

Earlier this week, the Treasury Department took a break from firing its cash howitzer just long enough to implement an interim rule requiring those entities that submit ...

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Venture Capital: Finding Your Way Around “Down-Rounds”

Like many other companies, a lot of VC portfolio companies have recently taken a big valuation hit due to the fallout from the pandemic, and to make matters worse, a lot ...

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Antitrust: Gun Jumping Issues in a Very Non-Ordinary Course Time

Parties to a merger agreement are prohibited under U.S. and foreign antitrust laws from closing a deal that is subject to antitrust review — or taking certain ...

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Poison Pills: Are Companies “Fighting the Last War?”

There’s an old proverb that says “generals are always preparing to fight the last war.” I’ve blogged quite a bit recently about the apparent resurgence in poison ...

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National Security: CFIUS Update

A Wilson Sonsini memo reviews CFIUS’s activities during the first quarter of 2020. The memo says that the first few months of the year held few surprises — new regs ...

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Interim Covenants: It’s Not Always About the MAC Clause

Yesterday’s blog focused primarily on Sycamore Partners’ claim that it is entitled to walk away from its deal with L Brands based on the agreement’s MAE clause, ...

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Big MAC Attack: Sycamore Partners Seeks to Exit L Brands Deal

Yesterday, Sycamore Partners filed a declaratory judgment action in Delaware Chancery Court seeking to terminate its agreement to buy a majority stake in L Brands’ ...

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Private Equity: Debt Finance Opportunities for Middle-Market Funds

A recent Mintz memo says that although the COVID-19 crisis has created significant disruptions for pending and planned M&A deals, it has also created opportunities ...

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Global Deal Activity: Yeah, It’s as Bad as You Thought

R.W. Baird recently issued its Global M&A Report covering last month’s deal activity, and the report says that it was as bad as you thought it was. Here’s an ...

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Antitrust: FTC Files Post-Deal Challenge to Minority Investment

Earlier this month, the FTC unanimously voted to challenge Altria Group’s acquisition of a 35% stake in e-cigarette vendor JUUL Labs. A Jenner & Block memo says ...

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Poison Pills: What Do COVID-19 Crisis Rights Plans Look Like?

As I’ve previously discussed, a number of law firms have recommended that boards consider adopting poison pills in response to the COVID-19 crisis-induced market ...

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Satisfying “Efforts Clauses” in a COVID-19 Environment

Most M&A agreements contain provisions obligating the parties to use their “best efforts” or “commercially reasonable efforts” to satisfy contractual ...

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Distressed Deals: “To Chapter 11, or Not to Chapter 11? That is the Question. . .”

Many buyers of distressed businesses opt to acquire the target’s assets through a Section 363 sale following a Chapter 11 filing. But, a WilmerHale memo says that the ...

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Survey: Middle Market Deal Terms

Seyfarth Shaw recently published the 2020 edition of its “Middle Market M&A SurveyBook,” which analyzes key contractual terms for more than 100 middle-market ...

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COVID-19 MACs: Some Buyers Decide to Take Their Shot

I’ve previously written about the possibility that buyers might try and invoke MAC clauses in order to terminate deals during the COVID-19 crisis, and I’ve also ...

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Rights Plans: ISS Signals That Pills Aren’t So Poisonous in a Pandemic

A recent Sidley memo notes that ISS’s recent guidance on short-term poison pills suggests that it may not think they’re such a bad idea during a time of significant ...

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Rep & Warranty Insurance: The Impact of the COVID-19 Crisis

A recent Gibson Dunn memo reviews how the COVID-19 crisis is affecting the market for R&W insurance, and considers how the crisis may influence the market over the ...

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Rep & Warranty Insurance: Aon Releases Study on Claims Experience

Aon recently released a study analyzing the approximately 340 claims made on more than 2,450 rep and warranty insurance policies that it placed in North America between ...

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“Let’s Make a Deal Anyway”: Bridging M&A Valuation Gaps

The COVID-19 pandemic has seen previously sky-high M&A valuations plummet, at least for now. As a result, buyers looking to press on and do deals in this environment ...

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Cross-Border: EU Looks to Protect Suppliers of Essential Products

European regulators are becoming increasingly concerned about attempts by non-EU buyers to obtain control over suppliers of essential products — and healthcare ...

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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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