Articles

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 ...

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 ...

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 ...

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 ...

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. ...

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 ...

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. ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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. ...

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 ...

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

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 ...

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 ...

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 ...

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 ...

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. ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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” ...

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

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 ...

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 ...

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 ...

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

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. ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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

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 ...

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 ...

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

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 ...

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 ...

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 ...

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 ...

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

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

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 ...

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 ...

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 ...

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

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 ...

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 ...

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 ...

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

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.  ...

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 ...

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 ...

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

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

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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

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 ...

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 ...

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 ...

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

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

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 ...

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 ...

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 ...

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

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 ...

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 ...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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