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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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” ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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? ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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. ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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, ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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. ...

Read More

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, ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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’ ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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, ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

Spin Offs: Wachtell Lipton Updates Its Guide

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

Read More

National Security: The Growing Importance of Export Controls

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

Read More

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

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

Read More

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

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

Read More

Antitrust: 7-Eleven Acquires Speedway Despite FTC Objections

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

Read More

Appraisal: Delaware Chancery Permits Reverse Veil Piercing

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

Read More

Stockholder Votes: Sometimes, Not to Decide is to Decide

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

Read More

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

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

Read More

Controllers: Del. Chancery Rejects Challenge to Committee Independence

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

Read More

Appraisal: Fair Value Adjusted for Post-Signing Developments

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

Read More

Divestment: Breaking the Cycle of Inaction

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

Read More

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

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

Read More

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

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

Read More

Study: Private Target Deal Terms

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

Read More

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

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

Read More

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

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

Read More

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

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

Read More

A New Approach to MACs

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

Read More

Nevada Supreme Court Applies BJR to Controlling Shareholder Transaction

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

Read More

Specific Performance: Del. Chancery Orders PE Buyer to Close

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

Read More

M&A: A Comprehensive Outline of Delaware Issues

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

Read More

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

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

Read More

De-SPACs: Fiduciary Duties

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

Read More

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

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

Read More

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

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

Read More

Controllers: Fiduciary Duties Don’t Include Martyrdom

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

Read More

Activism: First Quarter Highlights

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

Read More

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

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

Read More

Private Equity: Global Deal Value Soars in Q1

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

Read More

Letters of Intent: NC Court Says Disclaimers Preclude Fraud Claims

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

Read More

SPACs: Here Come the Lawsuits. . .

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

Read More

Special Committees: 2020 Delaware Developments

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

Read More

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

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

Read More

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

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

Read More

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

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

Read More

Transactional Insurance: The Year in Review

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

Read More

Antitrust: FTC Challenges Vertical Merger

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

Read More

Comparability Provisions: Treatment of Employees in M&A Agreements

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

Read More

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

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

Read More

Exclusive Forum Bylaws: Stabilizing D&O Rates?

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

Read More

Private Equity: SPACs Provide Competition for Tech Deals

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

Read More

Antitrust: Make Sure the HSR Clock Has Started Running

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

Read More

Officer & Controller Liability: Vice Chancellor Laster Speaks!

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

Read More

SPACs: The Captive Insurance Alternative

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

Read More

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

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

Read More

Antitrust: NY Legislation Would Mandate Pre-Merger Notification

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

Read More

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

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

Read More

Intellectual Property Issues in M&A: A Deep Dive

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

Read More

Private Equity: Navigating Portfolio Company Conflicts

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

Read More

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

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

Read More

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

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

Read More

SPAC Mergers: A Guide to SEC Filing & Disclosure Requirements

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

Read More

Poison Pills: A Recap of 2020 Pill Adoptions & Terms

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

Read More

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

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

Read More

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

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

Read More

Selling the Company: A Practical Guide for the Sale Process

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

Read More

Del Chancery Strikes Down “Anti-Activist” Poison Pill

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

Read More

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

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

Read More

SPACs: The More Costly Route to the Public Market?

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

Read More

Director Liability: Directors’ Duties are Fiduciary, Not Contractual

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

Read More

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

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

Read More

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

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

Read More

Earnouts: Still Popular – And Still Problematic

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

Read More

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

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

Read More

Appraisal: Key Takeaways From 2020 Delaware Decisions

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

Read More

Aiding & Abetting: Del. Chancery Allows Claim Against Buyer

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

Read More

Post-Closing: Purchase Price Adjustments & Indemnification Claims Study

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

Read More

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

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

Read More

National Security: CFIUS Targets China-backed Venture Deals

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

Read More

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

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

Read More

Antitrust: Agencies Suspend HSR Early Terminations Pending Process Review

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

Read More

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

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

Read More

SPACs: Is the PSLRA Safe Harbor Driving the Boom?

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

Read More

FTC Announces New HSR Thresholds

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

Read More

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

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

Read More

Post Closing Disputes: The Locked Box Alternative

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

Read More

Shareholder Activism: 2020 In Review

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

Read More

Gain full access to any of our publications with a free trial

After sign up, we’ll get in touch to help you find the resources that will benefit you the most.