Del. Chancery Says Seller’s Rep Must Release Escrowed Funds

It isn’t often that you see a stockholders’ representative argue that funds held in escrow shouldn’t be released to the seller, but that’s the situation the ...

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Private Equity: PE Sponsors Down on Take Private Deals

Dechert recently published its 2023 Global Private Equity Outlook Survey, which surveyed 100 senior executives of PE firms with $1 billion or more in assets under ...

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Venture Capital: Down Round Options

With valuations of many early-stage companies tumbling, some of those companies are staring at the possible need for a “down round” equity financing. Down rounds are ...

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The Worst Merger Ever? Not Even Close

Last week, the New York Times published an epic account of the decline and fall of the corporate marriage between Time Warner and AT&T under the title “Was this ...

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Advance Notice Bylaws: Battlelines are Drawn on Amendments Targeting Activists

Activists and their advisors are seeing red over some changes to advance notice bylaws being implemented by companies in response to the universal proxy rules. In a ...

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The Board’s Role in Managing M&A Regulatory Risk

As regulators in the U.S. and abroad ramp up their scrutiny of potential M&A transactions, a recent Skadden memo addresses the need for directors to take on a bigger ...

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PE & VC Firms Look to Control Legal Spend

In a down M&A market, it’s not surprising that PE and VC firms would be taking a close look at their legal fees, and a recent survey of 300 in-house lawyers at ...

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Dispute Over de-SPAC Merger Leads to Bountiful Harvest of Legal Issues

I know that Chancellor McCormick has been absolutely swamped over the last several months dealing with the Twitter litigation, but spare a thought for Vice Chancellor ...

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M&A Leaks Report: 2021 Deals Leaked More Than in Prior Years

Intralinks recently published its M&A Leaks Report, which analyzes deal leaks over the period from 2009 to 2021, and breaks them down by world region, country and ...

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Antitrust: FTC Stakes a New Claim to Sweeping Authority

Last week, the FTC issued a policy statement setting forth a sweeping new claim to enforcement authority under Section 5 of the Federal Trade Commission Act. Up until ...

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Antitrust: Federal Judge Permanently Enjoins Simon & Schuster Deal

On Monday, U.S. District Judge Florence Pan permanently enjoined Penguin Random House’s proposed acquisition of Simon & Schuster. In doing so, Judge Pan found that ...

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Del. Chancery Invalidates Sale of Business Non-Compete

In Kodiak Building Partners, LLC v. Philip D. Adams, (Del. Ch.; 10/22), the Chancery Court invalidated a non-compete covenant agreed to by a target’s former employee ...

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Antitrust: European Regulators to Follow US Lead on Private Equity?

Private equity has become one of U.S. antitrust regulators’ prime targets during the Biden administration, and a recent Freshfields blog says that European regulators ...

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Del. Chancery Says Faulty Projections Provide Basis for Fraud Claim

Projections about a portfolio company’s financial performance are a customary part of any private equity investment, but because the parties involved are sophisticated ...

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Due Diligence: Political Law Compliance

A target’s compliance with laws governing political involvement is an area that doesn’t typically get a lot of attention during M&A due diligence, but a recent ...

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National Security: Treasury Adopts CFIUS Enforcement & Penalty Guidelines

Last week, the Treasury Department issued its first ever CFIUS Enforcement and Penalty Guidelines. According to the Treasury’s press release announcing the guidelines, ...

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Antitrust: Kroger, Albertsons’ ‘Regulatory Matters’ Covenant

Kroger and Albertsons’ announcement of their proposed merger last Friday was followed almost immediately by wailing and gnashing of teeth over the deal’s antitrust ...

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Private Equity: Is it Becoming a Ponzi Scheme?

As we’ve watched private equity sponsors increasingly reshuffle their deck of portfolio companies through secondary buyouts, some prominent commenters have expressed ...

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Del. Chancery Addresses 3rd Party Beneficiary Issues in Twitter Stockholder Suit

The Twitter v. Musk litigation continues to churn on through seemingly endless discovery disputes, but there’s at least one related case that has given deal lawyers ...

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M&A Tax: SPACs & the Buyback Excise Tax

I’ve blogged a couple of times about the potential impact of the tax provisions of the Inflation Reduction Act on M&A transactions. A recent Cooley blog looks ...

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Drag-Along Rights: ‘To Exercise or Not to Exercise, That is the Question…’

Drag-along rights entitling the lead investor to compel other investors to participate in a sale transaction are a common feature in stockholders’ agreements for ...

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Going Private: Survey of 2021 Sponsor-Backed Deals

Earlier this year, Weil issued a survey highlighting the key terms of 2021 sponsor-backed, going private deals. The survey covered 23 U.S. sponsor-backed, going private ...

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Private Equity: ‘Bolt-Ons’ Shine in Turbulent Times

With higher borrowing costs, squishy valuations and exits harder to come by, a recent Institutional Investor article says that private equity sponsors are eschewing ...

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Busted Deals: What’s the Right Measure of Damages?

Twitter’s battle with Elon Musk has prompted a lot of discussion about the proper remedies for jilted sellers in mergers and acquisitions litigation. A recent article ...

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Divestitures: Transition Services Agreements

Because a divested business’s infrastructure is often so intertwined with the seller’s other businesses, a divestiture buyer often needs the seller to continue to ...

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National Security: Executive Order Enhances CFIUS Review of Emerging Risks

Last week, President Biden signed an executive order intended to enhance CFIUS’ ability to address emerging national security risks in its review of transactions. ...

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M&A Agreements: ‘Hell or High Water’ Clauses

The efforts required to obtain antitrust or other regulatory approvals for a deal are often among the most heavily negotiated aspects of the merger agreement. In some ...

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Antitrust: Push to Target Director Interlocks Raises Unresolved Issues

Antitrust regulators have made it clear that they intend to take a hard look at potential violations of Section 8 of the Clayton Act, which prohibits director ...

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Twitter v. Musk: When It Comes to Privilege, ‘It’s Good to be da King!’

Some days it isn’t easy to come up with content for this blog, and today is one of those days. It looks like my choices have come down to either blogging about another ...

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Key Considerations for Buying a De-SPACed Company

The bursting of the SPAC bubble has left quite a few companies that went public via a de-SPAC looking for an exit. The depressed valuations of these companies might make ...

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Due Diligence: Artificial Intelligence Transactions

Artificial intelligence is becoming an increasingly important tool for many businesses. But like any emerging technology, the use of AI in a target’s business raises a ...

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Delaware Chancery Holds Reverse Spin-Off Passes Muster Under MFW

Last week, in In Re Match Group Inc. Derivative Litigation, (Del. Ch.; 9/22), the Chancery Court held that IAC/InterActive’s 2019 reverse spin-off of its Match.com ...

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Universal Proxy: A Roundup of Recent Commentary

Over the past several weeks, there’s been a lot of interesting commentary on some of the implications of the SEC’s universal proxy rules. Here are some of the ...

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M&A Tax: New Book Minimum Tax Creates Complications for M&A

It turns out that the 1% excise tax on buybacks isn’t the only provision of the Inflation Reduction Act that complicates things for dealmakers. A recent Wachtell memo ...

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Antitrust: FTC Makes It Easier to Launch M&A Investigations

The FTC recently announced that it had adopted omnibus resolutions authorizing compulsory process in various antitrust investigations, including those related to non-HSR ...

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Universal Proxy: ISS Weighs In

Traditionally, proxy advisory firms have effectively recommended one slate or the other in proxy contests. While they may have endorsed the election of a dissident’s ...

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Reverse Termination Fees: Analysis of Size Ranges

Reverse termination fees are an interesting topic — unlike termination fees, there’s little reason for Unocal or Revlon concerns to potentially limit their size and ...

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SPACs: Are the SEC’s Proposed Rules SPAC Insecticide?

Here in Ohio, we’re being warned to be on the lookout for the spotted lanternfly. I guess this thing showed up in the U.S. about a decade ago and is becoming quite a ...

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Delaware Chancery Says Process Isn’t Entirely Perfect, but Deal is Entirely Fair

The Delaware Chancery Court recently issued a 113-page post-trial opinion in In re: BGC Partners Derivative Litigation, (Del. Ch.; 8/22), holding that BGC Partners’ ...

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Controllers: Managing Liquidity Conflicts

Courts generally recognize that controlling stockholders have an incentive to maximize stockholder value in a third-party sale, and even if that transaction is subject ...

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Antitrust: The FTC’s High Stakes Challenge to Meta’s Virtual Reality Deal

Earlier this week, the Wall Street Journal discussed the FTC’s aggressive approach to antitrust enforcement, noting that the agency has thrown “sand in the gears” ...

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M&A Privilege: Delaware Chancery Addresses Claim of ‘Common Interest’

A recent Morris James blog reviews a ruling from Master in Chancery Patricia Griffin addressing various privilege issues arising in a dispute between parties to a ...

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Private Equity: Pubco Valuations Down, Take Privates Up

When there’s a big slump in public company valuations, a surge in going private deals is almost sure to follow — particularly when private equity is sitting on a ...

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National Security: CFIUS Flexes Its New Muscles

The Committee on Foreign Investment in the United States released its latest Annual Report to Congress. The report covers calendar year 2021, which was the first full ...

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Books & Records: ‘Reliable Hearsay’ May Satisfy Delaware’s Proper Purpose Requirement

In order to establish the existence of a proper purpose for a books and records demand under Section 220 of the DGCL, a stockholder must demonstrate a “credible ...

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Purchase Price Adjustments: The Locked-Box Alternative

U.S. private company deals typically have some sort of post-closing purchase price adjustment mechanism. In the U.K. and Asia, a “locked-box” approach is more ...

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Controllers: Del. Chancery Applies MFW to Dual Class Charter Amendment

Last week, in City Pension Fund for Firefighters & Police Officers v. The Trade Desk, (Del. Ch.; 7/22), held that the controlling stockholder of The Trade Desk, ...

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Delaware Supreme Court Refuses to Dismiss Misleading Appraisal Disclosure Claims

Last week, in In re GGP Stockholder Litigation, (Del.; 7/22), a divided Delaware Supreme Court overruled the Chancery Court and refused to dismiss breach of fiduciary ...

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Exclusive Forum Bylaws: Recent 9th Circuit Decision Creates Circuit Split

In Lee v. Fisher, (9th Cir.; 5/22), the 9th Circuit upheld a prior district court ruling dismissing federal disclosure claims and state law derivative claims on the ...

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Due Diligence: Government Contractor Compliance

The Department of Justice recently settled a False Claims Act proceeding against a company that erroneously certified that it qualified as a small business in connection ...

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Antitrust: FTC Challenges M&A Non-Compete

A recent Fenwick memo discusses a proposed FTC consent order involving a completed acquisition that targets the terms of the non-competition language included in the ...

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Busted Deals: It Isn’t Just Twitter …

Elon Musk apparently has had a lot of company over the past couple of months when it comes to trying to wiggle out of a deal. According to a recent analysis by Bloomberg ...

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Earnouts: Reducing the Risk of Disputes Over Milestone Payments

“Milestone” payments are a common feature of life science deals, both public and private. Whether you’re dealing with a contingent value right in a public company ...

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Private Equity: Portfolio Company Debt Buybacks

In case you missed it, the credit markets have become pretty choppy in recent months and a lot of debt issued by private equity portfolio companies has been trading at a ...

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SPACs: Dealmakers Call Foul on SEC’s ‘Clarification’ of Underwriter Status

Judging from the comments submitted on the SEC’s SPAC proposal, it’s pretty clear that those in the M&A business aren’t exactly fans of the SEC’s proposed ...

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Twitter: Musk Makes a Run for the Exit

As has appeared inevitable for some time, Elon Musk formally attempted to terminate his merger agreement with Twitter on Friday. Here’s the termination letter from ...

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M&A Activity: An Uptick On the Way?

M&A activity declined sharply in the first half of 2022, but a new Datasite report says that dealmakers expect an uptick during the second half of this year and the ...

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Earnouts: Delaware Chancery Interprets Undefined ‘Commercial Best Efforts’ Clause

In many cases in which the meaning of an “efforts clause” governing the buyer’s conduct with respect to the achievement of earnout payment milestones has been an ...

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Universal Proxy: Basic Compliance & Advanced Strategy Webinar

Last week, The Activist Investor’s Michael Levin hosted a free one-hour webinar on the SEC’s new universal proxy rules; a free replay of the program is available at ...

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Cross-Border: Japan’s M&A Outlook Brightens

A recent Pillsbury memo says that market conditions are ripe for a revival of M&A activity in Japan. With the yen trading at 20-year lows and geopolitical ...

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Antitrust: PE Firm & Portfolio Company Can’t Conspire Under Sherman Act

In OJ Commerce, LLC v. KidKraft, Inc., (11th Cir.; 5/22), the U.S. Court of Appeals, 11th Circuit, held that a private equity firm can’t conspire with its portfolio ...

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SEC’s SPAC Proposals: Commenters Weigh In

The comment period for the SEC’s SPAC rule proposals recently expired and, as usually happens in response to a major rule proposal, a flurry of comment letters from ...

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Will Rising Interest Rates Lead to More Cash & Stock Deals?

It looks like the party’s over when it comes to the low interest rate environment that dealmakers have enjoyed for many years. That means they may need to get a little ...

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Proxy Contests: Deadlocked Board Requires Company Neutrality

I don’t know about you, but I can’t think of many situations that would be more of a hot mess than when a deadlocked board can’t agree on a slate of nominees and ...

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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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