Asset Sales: Stockholder Approval Required for Transfer by Insolvent Corporation

Last week, in StreamTV Networks v. SeeCubic, (Del.; 6/22), the Delaware Supreme Court overruled a prior Chancery Court decision and held that an insolvent company’s ...

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Private Equity: Investors Want More ‘Skin in the Game’ From GPs

Private equity sponsors looking to fundraise from new investors should expect to dig a little deeper into their own pockets — at least that’s one of the implications ...

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RWI: General Partner-Led Private Equity Fund Secondaries

The past several years have seen significant growth in general partner-led secondary transactions, which enable a sponsor to effectively extend the duration of an ...

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Due Diligence: Software License Compliance

A target’s compliance with its obligations under software licenses is an area of M&A due diligence that doesn’t always get the attention that it should given the ...

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Twitter: A Huge Reverse Breakup Fee If Musk Retrades the Deal?

Matt Levine had another great column the other day in which he discussed the recent renegotiation of Thoma Bravo’s proposed acquisition of Anaplan and bemoaned the ...

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Private Equity: The Resurgence of PIK Loans

Like everybody else, many PE portfolio companies are feeling a cash squeeze due to margin erosion, supply chain issues and other factors. In response, a recent PitchBook ...

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Fiduciary Duty: Delaware Chancery Permits Direct ‘Brophy Claim’

Bringing fiduciary duty claims based on insider trading may seem somewhat incongruous given the pervasiveness of federal law in this area, but Delaware has recognized ...

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D&O Insurance: No Coverage for Pre-Merger Conduct

Over on The D&O Diary, Kevin LaCroix blogged about a Delaware federal court’s decision in Liberty Insurance Underwriters v. Cocrystal Pharma, (D. Del.; 5/22). In ...

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PE Sponsor’s Desire to Close Out Fund Results in Entire Fairness Review

Delaware courts acknowledge that controlling stockholders generally have an incentive to maximize stockholder value in a third-party sale, but will apply the entire ...

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Antitrust: EU General Court Upholds EC’s Tough Approach to Gun-Jumping

In 2019, the European Commission imposed a €28 million fine on Canon for closing its 2016 acquisition of Toshiba Medical Systems without complying with the EC’s ...

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National Security: White Paper on Global FDI & National Security Review Regimes

Dechert recently published a white paper that provides an overview of the foreign direct investment and national security review regimes in the U.S., EU, China and other ...

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Fiduciary Duty: Del. Chancery Says Charter Can’t Alter Standard of Review

In Totta v. CCSB Financial, (Del. Ch.; 6/22), the Delaware Chancery Court held that language in an antitakeover charter provision giving the board broad authority to ...

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Elon Musk & Twitter: ‘Forget It, Jake. It’s Chinatown’?

The 1974 classic “Chinatown” contains one of the most memorably bleak closing scenes in film history. After witnessing the film’s villain — a proverbial ...

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Officer Liability: M&A Board Minutes Put CLO in the Crosshairs

Yesterday, in Goldstein v. Denner, (Del. Ch.; 5/22), the Delaware Chancery Court refused to dismiss breach of fiduciary duty claims against the officers and directors of ...

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Antitrust: Heads Up, Private Equity!

A recent Wilson Sonsini memo highlights recent statements by senior DOJ and FTC officials that suggest that antitrust regulators are increasing their scrutiny of the ...

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Due Diligence: The Value of Entity Management in M&A

One of the things that sometimes drives businesspeople up a wall about lawyers is our obsession with recordkeeping. Minutes, board and stockholder resolutions, ...

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Prevention Doctrine: Could Musk Troll His Way Into Big Trouble?

Elon Musk has made a career out of playing with fire and somehow avoiding getting badly burned. I guess it helps to be the richest guy in the world, but from “funding ...

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Deal Jumping: JetBlue Goes ‘Hostile-ish’

Earlier this month, Spirit Airlines’ board rejected JetBlue’s efforts to persuade it to abandon its deal with Frontier in favor of JetBlue’s competing proposal. ...

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Proposed SPAC Rules: Are PIPE Investors Potential ‘Underwriters’?

I recently blogged about some of the implications of the proposed SPAC rules for investment banks that underwrite SPAC IPOs. Under the terms of the proposed rules, these ...

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Antitrust: Big Changes to Required HSR Information on the Horizon?

A Gibson Dunn memo says that the FTC is contemplating potentially significant changes to the information required to be filed under the HSR Act. Here’s the ...

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Cross-Border: Overview of UK ‘Schemes of Arrangement’

The most common structure for acquiring a U.K. public company in a friendly transaction is a “scheme of arrangement,” in which the target company seeks a court order ...

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M&A Trends: 2022 Edition of Wachtell’s ‘Takeover Law and Practice’

Wachtell Lipton published the 2022 edition of its 245-page “Takeover Law and Practice” outline. The outline addresses directors’ fiduciary duties in the M&A ...

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Del. Chancery Finds ‘Compelling Justification’ for Dilutive Share Issuance

Last summer, the Delaware Supreme Court overruled a Chancery Court decision upholding a disputed share issuance used by an incumbent board to resolve a stockholder ...

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Proposed SPAC Rules: Implications for Investment Banks

As Broc used to so colorfully put it, we’re posting “oodles” of memos on the SEC’s SPAC proposal in our “SPACs” Practice Area. A recent one from Debevoise ...

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National Security: Review of Outbound Investments?

A new regulatory regime that would limit certain US outbound investments in other countries has been kicked around in Congress and by national security officials in the ...

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Tesla/SolarCity: ‘We’ll Meet Again, Don’t Know Where, Don’t Know When …’

Tesla’s 2016 acquisition of SolarCity has been a deal blogger’s paradise for the last six years, and I had high hopes that Vice Chancellor Slights’ post-trial ...

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Advance Notice Bylaws: Delaware Courts Move Toward Intermediate Scrutiny

Dissident stockholders that have nominees rejected based on the terms of an advance notice bylaw often argue that the board’s rejection of the nomination notice was an ...

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Twitter: The Elon Stuff in the Merger Agreement

Twitter filed its merger agreement last night. The 8-K filing has a fairly detailed description of the agreement and, based on the description and a quick flip through ...

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Twitter: What Will the Merger Agreement Say?

Twitter and Elon Musk announced mid-afternoon yesterday that their bizarre mating dance had culminated in a signed merger agreement under the terms of which an entity ...

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When Do Minority Shareholders Owe Fiduciary Duties?

Most corporate lawyers have a Delaware-centric view of the world and expect that most other U.S. jurisdictions will fall in line with Delaware when it comes to major ...

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Spin-Offs: Wachtell Lipton Updates Its Guide

Wachtell Lipton recently issued the 2023 edition of its “Spin-Off Guide.” This 83-page publication is a terrific resource for getting up to speed on the wide variety ...

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Poison Pills: Twitter Opts for Plain Vanilla

Twitter filed its shareholder rights plan with the SEC yesterday and it’s pretty boring. There aren’t any aggressive twists on the definition of beneficial ownership ...

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Poison Pills: What to Look for When Twitter Files Its Rights Plan

On Friday, Twitter announced that it was adopting a shareholder rights plan in response to Elon Musk’s unsolicited buyout proposal. That document hasn’t been filed ...

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Due Diligence: Privacy & Cybersecurity Risks

Last week, I blogged about ESG due diligence, which has gone from a buzzword to a high priority item in M&A transactions in a short period of time. Privacy and ...

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Diversity: Number of Women in M&A on the Rise

According to a recent survey conducted by DataSite, the future of M&A is female. In light of the data suggesting that female-led transactions outperform those led by ...

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Ukraine Crisis: M&A Agreements’ Sanctions Language Gets an Update

Language addressing compliance with U.S. trade restrictions and other sanctions is a common feature of reps and warranties in acquisition agreements. Well, Bloomberg ...

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Survey: Middle Market Deal Terms

Seyfarth Shaw published the 2020/2021 edition of its “Middle Market M&A SurveyBook,” which analyzes key contractual terms for more than 175 middle-market private ...

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Deal Hacking: Delaware Chancery Addresses Claims Arising Out of Hacker’s Theft of Merger Consideration

Last year, I blogged about a situation in which a hacker apparently changed the payment instructions a target shareholder provided to a paying agent in connection with a ...

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SPACs: SEC Rule Proposal Seeks to Level Playing Field with Traditional IPOs

The SEC announced rule proposals on March 30th intended to enhance disclosure and investor protection in special purpose acquisition companies’ initial public ...

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Venture Capital: Board Seats, Who Needs ‘Em?

The most recent issue of Evan Epstein’s Board Governance Newsletter discusses the decision of some venture capitalists to eschew seeking board seats in connection with ...

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SPACs: Delaware Looks to Weigh-in Again

It has been a little surprising that nearly three years into the SPAC boom, Delaware has weighed in on the corporate law issues surrounding special purpose acquisition ...

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SPACs: D&O Implications of Delaware Chancery’s ‘Multiplan’ Decision

I’ve previously blogged about In re Multiplan Stockholders Litigation (Delaware Court of Chancery, 2022), the Chancery Court’s first decision addressing fiduciary ...

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Gender Diversity: Impact on M&A Strategies and Outcomes

How does having women in leadership positions affect merger and acquisition strategies and outcomes? Those are the topics considered in a recent Intralinks report, which ...

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Antitrust: Heightened Vertical Merger Scrutiny Not Limited to US

The regulatory environment for vertical mergers has changed significantly in recent months — and with the antitrust agencies promising a rewrite of the merger ...

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Delaware Supreme Court Again Addresses Preliminary Agreements

Earlier this month, the Delaware Supreme Court once again weighed in on the subject of the obligations created by preliminary agreements relating to potential business ...

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Due Diligence: Growing GDPR Risk to Fund Sponsors & Corporate Parents

A Proskauer blog discusses how the EU’s robust enforcement of cybersecurity and privacy regulations are increasing the risk of liability to private equity fund ...

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Activism: Is a Wave of ‘SPACtivism’ Coming?

A recent Forbes article by Okapi Partners’ Bruce Goldfarb says that recently de-SPACed companies may face a wave of activism this year. This excerpt says that Third ...

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Appraisal: Recent Del. Chancery Decision Opens Door to Arbs?

Last month, I blogged about the Delaware Chancery Court’s decision in BCIM Strategic Value Master Fund v. HFF, (Del. Ch.; 2/22), in which Vice Chancellor Laster ...

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Reps & Warranties: Del. Chancery Reaffirms That Delaware is “Pro-Sandbagging”

As most readers know, “sandbagging” in the M&A context refers to the ability to rely on the other side’s representations even if you know that the rep is ...

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Material Breach Metaphysics: Del. Chancery Addresses MAE Rep Without a Closing Condition

In Level 4 Yoga v. CorePower Yoga, (Del. Ch.; 3/22), Vice Chancellor Slights was called upon to address a question of contract interpretation that I don’t recall ...

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Survey: Prevalence of Takeover Defenses

A WilmerHale memo (p. 6) reviews commonly used antitakeover provisions and their prevalence among IPO companies, the S&P 500, and the Russell 3000. In addition to ...

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RWI: Implications of Russia Sanctions

This is pretty far down the list of priorities when it comes to the sickening events of the last couple weeks in Ukraine, but the new sanctions imposed on Russia for its ...

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Going Private: Survey of 2020 Sponsor-Backed Deals

Late last year, Weil issued a survey highlighting the key terms of 2020 sponsor-backed going private deals. The survey covered 20 U.S. sponsor-backed going private ...

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Fiduciary Duty: Director’s Abstention Isn’t a Get Out of Jail Free Card

Sometimes, people assume that if a director has a conflict, abstaining from voting on a transaction will be enough to insulate that individual from a fiduciary duty ...

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Antitrust: Implications of Recent Vertical Merger Challenges

A WilmerHale memo reviews recent FTC challenges involving vertical mergers and discusses some of the implications of those actions. Here’s the intro: Since March ...

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Advance Notice Bylaws: Del. Chancery Upholds Record Holder Requirement

In Strategic Investment Opportunities v. Lee Enterprises, (Del. Ch.; 2/22), the Delaware Chancery Court rejected a hostile bidder’s allegations its nominees for ...

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Lessons for Sellers From the Wordle Deal

I think I may be the last person in America – or at least the last one on social media – who hasn’t succumbed to the Wordle craze. That’s not unusual – as my ...

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Mootness Fees: SDNY Says “No” to M&A Disclosure Litigation Plaintiff

I’ve blogged a few times in recent years about mootness fees, which have become a popular alternative for plaintiffs asserting M&A disclosure claims post-Trulia. ...

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Antitrust: Will “Ticking Fees” Become a Trend?

There’s an interesting detail in the press release announcing Standard General’s $5.4 billion acquisition of TEGNA – it turns out that the buyer has agreed to pay ...

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M&A Agreements: Crypto References Creep In

Bloomberg Law’s Grace Maral Burnett has a new article that looks at references to cryptocurrencies & crypto assets in publicly filed acquisition agreements. ...

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Aiding and Abetting: Buyer Beware

It looks like one of the emerging trends in recent Delaware case law is an increased willingness to allow claims against buyers premised on allegations that they aided ...

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Appraisal: Chancery Limits Discovery for Lurking Fiduciary Claim

In Wei v. Zoox (Del. Ch.; 1/22), the Chancery Court granted a protective order limiting the discovery that a company would be otherwise be required to provide to ...

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Financial Reporting: Handbook on Accounting for Business Combinations

KPMG has put together this whopping 615-page handbook on accounting for business combinations. To my knowledge, this is the first comprehensive resource from one of the ...

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Private Equity: SEC Proposes to Overhaul Private Fund Adviser Rules

Yesterday, the SEC announced proposed amendments to 1940 Act rules governing private fund advisers. Check out the 341-page proposing release and the more digestible ...

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Appraisal: Chancery Addresses Fair Value Change Between Signing and Closing

Delaware law requires a court dealing with an appraisal action to determine the fair value of a share as of the effective time of a merger. In BCIM Strategic Value ...

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Transition Services Agreements: Key Considerations for Buyers and Sellers

Transition Services Agreements are an important component of many M&A transactions. Because the parties don’t always know at the outset the nature and extent of ...

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SPACs: Former SEC Corp Fin Director Doesn’t Pull Any Punches

Now that he’s out of government service and back at Harvard Law School, former SEC Corp Fin Director and General Counsel John Coates isn’t pulling any punches when ...

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Private Equity: The Return of Club Deals?

Wachtell Lipton recently published a memo previewing M&A in 2022. One of the interesting points raised in the memo is the possible return of “club deals,” which ...

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Antitrust: DOJ’s Antitrust Chief Takes a Hard Line on Remedies

In a recent speech, Jonathan Kanter, the head of the DOJ’s Antitrust Division discussed his approach to merger remedies. What did he have to say? Well, how can I put ...

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Private Equity: SEC Proposes Changes to Form PF

On Wednesday, the SEC announced proposed amendments to Form PF, the confidential reporting form used by certain SEC-registered investment advisers to private funds to ...

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Activism: Are Anti-Activist Pills Useless?

Over on The Activist Insight Blog, Josh Black recently discussed Mercury Systems’ decision to adopt a shareholder rights plan with a 7.5% threshold in response to an ...

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FTC Announces New HSR Thresholds

The FTC recently announced the new HSR thresholds for 2022. Here’s an excerpt from a Shearman memo with the details: Generally, HSR notifications are required for ...

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Mega Deals: More Common Than You Might Think

Last week, I blogged about the Microsoft-Activision Blizzard deal, which has a nearly $70 billion price tag and is a “mega deal” by any definition. Deals this big ...

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Poking Around the Microsoft-Activision Blizzard Merger Agreement

Activision Blizzard recently filed the merger agreement for Microsoft’s proposed $70 billion acquisition that the two companies announced earlier this week. Since ...

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M&A Agreements: Rethinking Consequential Damages Exclusions

Many private company acquisition agreements exclude consequential damages from the scope of the coverage provided under the agreement’s indemnification provisions. A ...

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Antitrust: DOJ & FTC Look to Revamp Merger Guidelines

Yesterday, the DOJ & FTC announced that in order to address “mounting concerns” about the impact of mergers on competition, they are “soliciting public input ...

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National Security: CFIUS & De-SPAC Transactions

A recent Intralinks article by national security consultant John Lash of Darkhorse Global addresses a topic that I haven’t seen much written about – the potential ...

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M&A Agreements: When do Target Stockholders become Buyer Stockholders?

Last month, I blogged about Vice Chancellor Will’s decision in Swift v. Houston Wire & Cable, (Del. Ch; 12/21), which touched on the issue of when, under the terms ...

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M&A Activism: Sale-Oriented Activism on the Rise?

During the pandemic, most M&A activism has focused on opposing a pending deal or improving its terms, rather than pushing boards to seek a potential sale. This ...

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Private Equity: LPs Say Continuation Funds are a Game Changer

According to Coller Capital’s most recent Global Private Equity Barometer, limited partners think that “continuation funds” are a potential game changer. Here’s ...

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Fiduciary Duties: Del. Chancery Applies Entire Fairness Standard to De-SPAC Claims

Earlier this week, in In re Multiplan Stockholders Litigation, (Del. Ch.; 1/22), the Delaware Chancery Court for the first time addressed fiduciary duty issues in the ...

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M&A Agreements: Disclosure Schedules Have Their Day in Court

Disclosure schedules have been the bane of junior M&A lawyers’ existence for decades, but to my knowledge, there hasn’t been much case law addressing them in ...

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COVID-19 Busted Deals: Ontario Court Awards C$1.24 Billion to Jilted Seller

Not surprisingly, it’s been kind of quiet in Delaware this week, but that gives me a chance to blog about an interesting recent busted deal decision from the Ontario ...

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M&A Agreements: Brief Chancery Opinion Has Plenty to Say to Drafters

One of the things I’ve learned from the past five years of blogging is that the Delaware Chancery Court is just as likely to issue a 200-page opinion that’s hard to ...

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Earnouts: Del. Chancery Refuses to Dismiss Fraud & Implied Covenant Claims

The Delaware Chancery Court hears a lot of earnout cases, but very few have financial stakes as large as those involved in Vice Chancellor Will’s recent decision in ...

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Antitrust: FTC & DOJ Eye Changes to Horizontal Merger Guidelines

In a recent workshop, representatives from the DOJ & FTC addressed possible ways of promoting competition in labor markets and suggested that changes to the ...

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Poison Pills: Del. Supreme Court Leaves Many Unanswered Questions

Last month, the Delaware Supreme Court issued a one-page order affirming the Chancery Court’s decision invalidating The Williams Companies’ “anti-activist” ...

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Deal Hacking: Paying Agent in Cross-Hairs for Hacker’s Theft of Merger Consideration

Here’s a situation that has to be on the short list of any M&A lawyer’s worst nightmares: a hacker apparently managed to change the payment instructions that a ...

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SPAC Regulation: “A Hard Rain’s A-Gonna Fall”

Last week, SEC Chair Gary Gensler gave a speech in which he outlined the agency’s regulatory priorities when it comes to SPACs. Gensler started by comparing SPACs to ...

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SPAC M&A Litigation: Recent Filings Highlight Alleged Process Failures

A Sidley blog highlights a pair of recent Delaware lawsuits challenging de-SPAC mergers. The blog notes that as with prior SPAC-related M&A lawsuits, conflicts of ...

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Effective Time: When Do Target Stockholders Stop Being Stockholders?

In Swift v. Houston Wire & Cable, (Del. Ch; 12/21), the Chancery Court addressed the question of whether a plaintiff in a Section 220 books and records lawsuit had ...

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Letters of Intent: NC Business Court Provides Another Cautionary Tale

A recent North Carolina Business Court decision provides yet another cautionary tale about the potential for a letter of intent to be viewed as a binding contract. The ...

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Blank Check Reverse Mergers: The SEC Responds to the Del. Chancery

Earlier this year, in In re Forum Mobile, (Del. Ch.; 3/21) Vice Chancellor Laster put the brakes on an effort to revive a defunct Delaware corporation by a promoter of ...

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M&A Tax: Build Back Better Act May Increase Tax on Private Company Sales

A Stinson memo highlights a provision of President Biden’s proposed Build Back Better Act that, if enacted, would increase the tax payable on the sale of a private ...

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COVID-19: Will Omicron Throw a Monkey Wrench into Pending Deals?

In addition to putting a damper on the Thanksgiving holiday and a dent in everybody’s 401(k) account, an analysis from Bloomberg Law’s Grace Maral Burnett suggests ...

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M&A Activism: Assessing the State of Play

As I blogged last month, M&A activism is on the rise, with 45% of all activist campaigns in 2021 featuring an M&A-related thesis, above the multi-year average of ...

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Legal Opinions: Recent Chancery Decision Provides Guidance

It isn’t often that legal opinions and the process by which they are rendered are key issues in a dispute, but they assumed center stage in the Delaware Chancery ...

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Start-Ups: Allocating Founders’ Shares

Deciding how to divide the pie among a start-up’s founders is a delicate process. While the simplest option for a business with multiple founders is to divide ...

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Earnouts: An Overview

Houlihan Lokey has put together a presentation providing an overview of earnouts. If you have a deal where an earnout might be on the table, it’s worth taking a look ...

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Delaware Chancery Provides Guidance on Legal Dividend Issues

The question of the legality of a dividend or repurchase under Delaware law is one that often arises in leveraged recaps and other transactions involving large ...

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Antitrust: Where’s the Enforcement Surge?

Given the surge in HSR filings last fall and some of the fire-breathing statements coming out of the FTC in recent months, you’d expect to see a significant uptick in ...

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M&A Agreements: What Will Next Year’s Deal Agreements Look Like?

A recent article by Bloomberg Law’s Grace Maral Burnett provides some thoughts on the evolution of acquisition agreements since the onset of the pandemic, and ...

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National Security: UK’s National Security and Investment Act

A Wilson Sonsini memo provides an overview of the UK’s new National Security and Investment Act, which becomes effective in January 2022. Here’s the intro: The ...

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National Security: CFIUS and The Food Sector

A Dorsey & Whitney memo says that Congress is considering bipartisan legislation that would prioritize review of foreign investments in the food sector. Among other ...

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The Rise of Hipster Antitrust: DOJ Brings Monopsony Case

Earlier this week, the DOJ announced that it had filed a lawsuit to block Penguin Random House’s pending $2.175 billion acquisition of Simon & Schuster. Why? ...

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Dissecting Fraud Carve-Outs

A Weil blog takes a look at how market practices regarding fraud carve-outs in acquisition agreements have evolved in recent years, and says that while more parties are ...

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Injunctive Relief: Delaware Chancery Again Refuses to Enjoin a Merger

A Sidley blog discusses a recent bench ruling in which the Chancery Court temporarily enjoined a vote on a merger until curative disclosure had been made, but refused to ...

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Successor Liability: Federal Common Law

An asset buyer won’t be responsible for any liabilities that it didn’t explicitly or implicitly assume, but there are a handful of situations where a buyer may face ...

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Antitrust: New Tool Helps You Not Sound Like a Supervillain

The HSR notification form requires the parties to furnish all documents that were created or received by directors or officers in connection with evaluation of a ...

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SPACs: Fitting Square Pegs into Corporate Law’s Round Holes

Over on “The Business Law Prof Blog,” Ann Lipton has an interesting post on how difficult it is to transpose the ordinary corporate law concepts that have guided ...

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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: – 123 new campaigns have been initiated globally ...

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Antitrust: FTC Reinstates Prior Approval Policy

Prior to 1995, the FTC had a longstanding policy requiring divestiture orders entered in merger cases to include provisions mandating that respondents seek its prior ...

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No Deal: Private Equity Firm Changes Its Vocabulary

By now, I’ll wager that most of you have seen the article that appeared on the front page of yesterday’s WSJ, which discussed a Swiss private equity firm that’s ...

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Middle Market M&A: Strategic vs. PE Valuations

Check out Prairie Capital’s recent “Middle Market Perspective” report. The report has a lot of interesting data, including a comparison of strategic buyer and ...

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Usury: Toxic Converts Prove Toxic to Lender

The New York Court of Appeals recently determined that the conversion price of convertible debt can be considered interest under New York’s criminal usury laws and ...

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Proxy Contests: Del. Chancery Upholds Enforcement of Advance Notice Bylaw

A Ropes & Gray memo reviews the Delaware Chancery Court’s recent decision in Rosenbaum v. CytoDyn, (Del. Ch.; 10/21), in which dissident shareholders challenged ...

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M&A Agreements: Interpreting Termination Provisions

Last month, I blogged about the Chancery Court’s decision in Yatra Online v. Ebix, (Del. Ch.; 9/21), in which the court held that a target’s decision to terminate a ...

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Tax Considerations: The M&A Implications of Pending Tax Proposals

A recent SRS Acquiom survey asked M&A professionals for input on the aspects of the Biden administration’s tax proposals that they expect to have the greatest ...

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Special Committees: “Bad Faith” Claims Gain a Foothold in Delaware

A Cooley blog discusses a couple of recent Chancery Court decisions that have refused to dismiss claims that special committee members breached their fiduciary duty of ...

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Due Diligence: Quality of Earnings

When I was starting out as a deal lawyer, I heard a lot of folks on deal teams talking about “quality of earnings” assessments. I had no idea what they were talking ...

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Special Committees: Income Dependence and Admiration for Controller Preclude Independence

In In Re BGC Partners Derivative Litigation, (Del. Ch.; 9/21), the Delaware Chancery Court found that when it comes to deciding whether members of a special committee ...

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Pending M&A Transactions: Signing a Deal is the Easy Part

Bloomberg Law just published an analysis of pending M&A transactions, and the results indicate that there are a whole bunch of deals announced in 2021 and in 2020 ...

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Private Equity: Is IRR a Misleading Metric?

There’s a new study out that slams private equity funds’ lack of transparency and the metric typically used to measure their performance. The study says that ...

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M&A Litigation: Contractual Fraud Marches On

A Morris James blog reports on yet another Delaware decision involving claims of contractual fraud. The Delaware Superior Court ‘s decision in Aveanna Healthcare v. ...

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Activism: What Industries Are in the Cross-Hairs?

FTI Consulting recently published its Q2 Activism Vulnerability Report, which provides an overview of the state of play in shareholder activism & ranks the ...

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Fraud on the Board: Wait, I’m the Victim Here. . .

A Sidley memo explores some of the issues associated with the rise of “fraud on the board” claims in Delaware, including the potential culpability of the defrauded ...

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Preferred Stock: Del. Chancery Holds No Breach of Mandatory Redemption Provision

The terms of the preferred stock issued to PE & VC investors typically include a tightly drawn mandatory redemption obligation that kicks in after a period of time ...

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Snapshot of Public Company Deal Terms

Paul Weiss put together a presentation on M&A transactions during the month of August. It covers a lot of ground, including information about domestic and global ...

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Antitrust Merger Review: There’s a New Sheriff in Town

A Fried Frank memo discusses the FTC’s rapidly evolving approach to merger review and enforcement, and makes it clear that there’s a new normal when it comes to the ...

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Controllers: Del. Supreme Court Holds Dilution Claims Are Derivative

Last year, I blogged about Vice Chancellor Glasscock’s decision in In re TerraForm Power, Inc. Stockholder Litigation, (Del. Ch.; 10/20), in which he held that ...

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Del. Chancery Addresses Duties of Shareholders’ Reps

Shareholders’ representatives play an important role in many transactions where the target has a relatively large number of shareholders, but I haven’t seen their ...

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Antitrust: FTC Rescinds Vertical Merger Guidelines

Well, it was fun while it lasted — a little more than a year after adopting the first overhaul of its Vertical Merger Guidelines in 40 years, the FTC voted to rescind ...

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SPAC Valuations: Propelled by Plenty of Hot Air?

A recent FTI Consulting study looked at the factors driving skyrocketing SPAC valuations, and what they found provides some reason for concern. Here’s an excerpt from ...

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Investment Bankers: Overview of Engagement Letter Provisions

For the first 20 years of my career, I was the principal lawyer for the M&A group of a regional investment banking firm, which means that whatever else I had going ...

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Contract Interpretation: Timing of Affiliate Status

All sorts of contractual provisions impose obligations on the parties and their respective affiliates. But if you sign up for an obligation that covers your affiliates, ...

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Appraisal: Del. Supreme Court Okays Contractual Waiver of Appraisal Rights

Yesterday, the Delaware Supreme Court issued its long-awaited decision in Manti Holdings v. Authentix Acquisition, (Del. 9/21). The Court upheld the Chancery Court’s ...

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Welcome to SPACtivism!

Activists are nothing if not opportunistic, and a Sidley memo says that the huge piles of cash currently sloshing around in SPACs are likely to serve as “chum in the ...

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Fraud on the Board: What Is It?

In recent years, several Delaware cases have addressed the “fraud on the board” concept. A Richards Layton memo attempts to get its arms around exactly what courts ...

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SPAC IPOs Implode in Q2

Well, we all knew that the SPAC market was experiencing a rough patch during the second quarter of 2021, and now we know just how tough things have been. Here’s an ...

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Earnouts: Del. Chancery Says “Commercially Reasonable Efforts” Must be Persistent

I thought a recent Chancery Court order interpreting what a “commercially reasonable efforts” clause in an earnout provision requires was worth noting. In ...

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Merger Agreement Breach Supports NC Deceptive Trade Practices Claim

The North Carolina Business Court recently held that a seller’s breach of a merger agreement could support a claim not only for breach of contract, but also for ...

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Antitrust Risks: Dealing with the New Environment

The Biden Administration has adopted an aggressive posture toward antitrust enforcement, and a Wilson Sonsini memo reviews the latest developments at the FTC and DOJ and ...

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Do All Cash Deals Automatically Trigger Revlon?

I recently blogged about Vice Chancellor Slights’ decision in Flannery v. Genomic Health, (Del. Ch.; 8/21), where he held that a mixed consideration merger consisting ...

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Target’s Termination of Deal Results in Loss of Breach and Fraud Claims

Merger agreements are like puzzles, and figuring out exactly how all of their moving parts fit together can be a real challenge, particularly if a dispute develops. ...

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Delaware Law: The Bedrock M&A Cases

A Sidley blog lays out a list of 11 “bedrock” Delaware decisions that the authors suggest every M&A lawyer should be familiar with. I love these kinds of lists, ...

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Antitrust: FTC Withdraws HSR Guidance on Debt Repayment

Last week, the FTC’s Bureau of Competition announced that it’s walking back an informal interpretive position that some parties have relied upon to avoid HSR filings ...

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SPAC Litigation: 49 Firms Say SPACs Aren’t Investment Companies

Shortly after I pressed the button on Friday’s blog, I received a bunch of emails from law firms informing me that they were one of the 49 firms to have signed-on to a ...

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PSTH Lawsuit: SPACs, SPARCs, Profs & Fig Leaves

The aftershocks from the Pershing Square Tontine Holdings lawsuit continue to reverberate through SPAC-land. Shortly after the complaint was filed, Bill Ackman announced ...

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Revlon: No Change in Control In 58% Stock Deal

In order for a proposed merger not to trigger Revlon duties, control of the company must reside in “the market” before and after the deal and there must be a ...

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Controllers: No MFW For Expiring Procedural Commitments

In order for a squeeze out merger to qualify for business judgment review under Delaware’s MFW doctrine, the transaction must be conditioned from the outset upon the ...

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D&O Insurance: Carriers Get a “W” in Appraisal Case

As I’ve previously blogged, Delaware is not regarded as the most hospitable of jurisdictions by D&O insurance carriers, but this recent guest post by Frank ...

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R&W Insurance: Current Market Trends

I recently blogged about the challenges of obtaining RWI coverage for non-standard deals in the current environment. A Goodwin memo provides some additional insight into ...

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Poison Pills: 2020-2021 Pill Adoptions

The CII recently published a report on poison pills adopted since January 1, 2020. Nearly 100 pills were adopted during this period, and not surprisingly, the vast ...

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MAE Clauses: Drafting Lessons From Bardy Diagnostics v. Hill-Rom

Last month, I blogged about the Chancery Court’s decision in Bardy Diagnostics v. Hill-Rom, (Del. Ch.; 7/21), in which Vice Chancellor Slights declined to find that a ...

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PSTH Lawsuit: “SPACmageddon” or Something Less?

Yesterday, the world’s largest SPAC, Pershing Square Tontine Holdings, was named as a defendant in a shareholder derivative lawsuit filed by, among others, former SEC ...

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Non-Assignment Clauses: What Assignments Don’t They Prohibit?

A recent Weil blog is titled “Stuff You Might Need to Know: What Assignments Do Broad Anti-Assignment Clauses Not Prohibit?” I would say a better title might be ...

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Contract Fraud: Negotiated Limitations on Liability Had “Too Much Dynamite”

I’ve always been a fan of “Butch Cassidy & the Sundance Kid,” and I give Vice Chancellor Slights five stars for the way he worked the film into his opinion in ...

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Non-Signatories Bound By Merger Agreement’s Indemnification Provisions

In Houseman v. Sagerman, (Del. Ch. 7/21), the Delaware Chancery Court held that a merger agreement’s indemnification provisions were binding on the seller’s ...

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R&W Insurance: Coverage for Non-Standard Deals? Good Luck!

According to a recent CFO Dive article, the high volume of M&A activity has made it increasingly difficult for deals that don’t fit easily within carriers’ ...

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COVID-19 M&A Litigation: Lessons Learned

A recent memo from Hunton Andrews Kurth’s Steve Haas discusses the lessons learned from the last year’s worth of pandemic-related M&A litigation. Steve says ...

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Shareholders Agreements: De-SPACs v. IPOs

It’s fairly standard for shareholders agreements to include a “lock-up” provision obligating a shareholder to refrain from selling shares for a period of time ...

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Due Diligence: ESG Considerations

A Debevoise publication provides an overview of the various EU and U.S. regulatory factors and other considerations that are helping to make ESG issues front and center ...

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M&A Agreements: “Effect of Termination” Provisions

Most acquisition agreements contain an “effect of termination” provision that limits the parties liability for pre-termination breaches. However, it is also common ...

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HSR Filings: The FTC’s Overwhelmed and You’re on Your Own

The HSR Act generally provides a 30-day period for review of a pending merger transaction by the FTC and DOJ. While post-closing challenges do occur from time to time, ...

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National Security: 2020 CFIUS Annual Report

The Committee on Foreign Investment in the United States recently published its Annual Report to Congress on all notices and declarations filed with CFIUS in 2020 and ...

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Cybersecurity: Strategic and Tactical Considerations in M&A

Cybersecurity and data privacy concerns are an area of increasing legal and regulatory risk for all companies. A Grant Thornton memo says that buyers should develop an ...

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Antitrust Merger Investigations: 2021’s First Half Scorecard

A Dechert memo reports on the timing of merger investigations during the second quarter of 2021. Here are some of the highlights: – Despite Big Tech headlines, the ...

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Controllers: No Shortcuts to MFW Cleansing

Under Delaware’s MFW doctrine, a controlling stockholder and target board can avoid application of entire fairness review to a transaction on which the controller ...

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Proxy Fights: Was Exxon Mobil a Bellwether?

In what was by far the 2021 proxy season’s most high-profile contest, Engine No. 1 succeeded in electing three directors to Exxon Mobil’s board. An Alliance Advisors ...

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Is Appraisal Arbitrage Poised for a Comeback?

A few months ago, I blogged about the Chancery Court’s decision in In re Appraisal of Regal Entertainment Group, (Del. Ch.; 5/21). In that case, the Court held that ...

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Activism: 2021 First Half Highlights

A Lazard report reviews shareholder activism during the first half of 2021. Here are some of the highlights: – 94 new campaigns were initiated globally in the first ...

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SPACs: Alternatives to PIPE Financing for De-SPACs

SPAC buyers have typically looked to the common equity PIPEs for funding to support de-SPAC transactions. But in recent months, that market has tightened, and some SPACs ...

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More on “Rights Offerings: Cleansing? Maybe Not…”

Earlier this month I blogged about Harvard prof. Jesse Fried’s article calling into question the efficacy of rights offerings as “cleansing mechanisms” for insider ...

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Activism: Bumpitrage in the UK

In recent years, U.S. buyers and sellers have become familiar with the strategy of “bumpitrage,” in which activists challenge announced transactions and press for a ...

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M&A Process: The Role of Social Media

Social media platforms are frequently an afterthought in M&A transactions. According to a recent blog from Sue Serna, that’s a big mistake. Sue highlights the ...

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Appraisal Rights: What About LLCs?

Delaware’s LLC statute does not have a provision granting appraisal rights to members who dissent from a merger, but as a Dorsey & Whitney blog points out, that ...

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Choice of Law Clauses: Boilerplate They Ain’t!

While the parties give a lot of attention to deciding which jurisdiction’s law will govern disputes arising out of an acquisition agreement, in many cases they treat ...

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Is the Intro to a Merger Agreement a “Resolution”? It is in Nevada!

Keith Bishop recently flagged an interesting Nevada Supreme Court decision in which the Court held that a minute book isn’t the only place you might find a board ...

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Antitrust: President’s Executive Order Puts the Squeeze on M&A

On Friday, President Biden signed an “Executive Order on Promoting Competition in the American Economy.” The order represents a sweeping, “all government” effort ...

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Busted Deals: “Tyson Right Uppercut” to Seller’s Business Isn’t a MAE

If you saw Mike Tyson in his prime, you know just how devastating an uppercut from him could be. Yet in Bardy Diagnostics v. Hill-Rom, (Del. Ch.; 7/21), Vice Chancellor ...

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Antitrust: Interlocking Director Issues

Section 8 of the Clayton Act prohibits competitors from having overlapping directors or managers, regardless of whether any anticompetitive conduct actually occurs. A ...

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Del. Chancery Denies Injunction for Alleged Violations of DGCL Section 203

Delaware’s takeover statute (Section 203 of the DGCL) has been on the books for more than a generation, but in recent years it hasn’t come up all that often in ...

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Rights Offerings: Cleansing? Maybe Not…

At one time or another, most deal lawyers have been involved in transactions in which rights offerings were used to help cleanse issuances of securities to a big ...

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Take-Privates: An Overview of the Process

Latham & Watkins just published a guide to take-private transactions. The guide provides an overview of various legal and financing issues associated with taking a ...

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SPAC M&A Litigation: The Specter of Section 11

I recently came across a Woodruff Sawyer blog about SPAC litigation, and it’s definitely a growth industry. According to the blog, so far 12% of pending or completed ...

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Delaware Supreme Court Says Entire Fairness Sometimes Isn’t Enough

Earlier this week, the Delaware Supreme Court issued its decision in Coster v. UIP Companies, (Del. Sup.; 6/21), which involved a disputed share issuance used by an ...

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Private Equity: LPs Say ESG is a Top Investment Priority

According to Collier Capital’s “Global Private Equity Barometer” survey of LPs, private equity investors are all about ESG these days. Here’s an excerpt from the ...

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Dealing With M&A Compensation Issues

A recent ClearBridge article on compensation issues in M&A is a useful reference tool for identifying and addressing those issues. The article covers both pre and ...

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Del. Chancery Says 35% Stockholder Not a Controller

A few weeks ago, I blogged about the Chancery Court’s decision in In Re GGP, Inc. Stockholder Litigation, (Del. Ch.; 5/21). My blog focused on claims relating to an ...

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CFIUS: Treasury Team Hunts For Non-Notified Transactions

According to a Winston & Strawn memo, the Treasury Department is building a team of sleuths dedicated to seeking out “non-notified” transactions that might be of ...

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Loyalty Claim Against Special Committee Chair Survives Motion to Dismiss

The Delaware Chancery Court is renowned for its ability to handle complex corporate cases in an expeditious manner, but every now and again, a lawsuit comes along that ...

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Fraud: Integration Clause Bars Claims Based on “Future Promises”

Earlier this month, I blogged about the Albertsons case, in which Vice Chancellor Slights held that allegations that the buyer had breached contractual obligations not ...

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M&A Agreements: Don’t Play Hide the Ball With Forum Selection Clauses

A Morris James blog reviews UBEO Holdings v. Drakulic, (Del. Ch.; 4/21), a recent Delaware Chancery case in which a buyer attempted to enforce a merger agreement’s ...

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Antitrust: VCs Stressing Out Over Federal Antitrust Legislative Initiatives

According to a recent NVCA newsletter, the venture capital industry is pretty worried about the prospect that the antitrust legislation currently floating around the ...

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Controllers: Receipt of Unique Benefits Results In Entire Fairness Review

In In re Tilray, Inc. Reorganization Litig., (Del. Ch.; 6/21), the Delaware Chancery Court held that the founding shareholders of Tilray constituted a “control ...

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SPACs: The UK Opens Its Doors to Listings

For better or worse, it looks like the UK has decided to open its financial markets to the latest craze from the U.S. — SPACs. A Weil memo discusses the Financial ...

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National Security: CFIUS’s Cybersecurity Compliance Expectations

Recent cyber attacks targeting U.S. businesses and President Biden’s executive order aimed at enhancing the nation’s cybersecurity posture have focused attention on ...

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The Modern Deal Economy: How Did We Get Here?

If you’re interested in the history of how the modern deal economy came to be, check out this excerpt from Prof. Jonathan Levy’s book, “Ages of American ...

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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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