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, ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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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 ...

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Poison Pills: Del. Chancery Skeptical of “Wolf Pack” Terms

In recent years, many companies have added so-called “wolf pack” provisions to their poison pills. This language is intended to ensure that the pill’s triggering ...

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M&A Projections: Safe Harbor? Don’t Count On It

Anne Lipton has an interesting blog that addresses the lengths to which judges will go to avoid providing liability protection to projections that look to be. . . well . ...

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M&A Finance: A Look Back At 2020 & Issues For 2021

Financing markets nearly shut down when the pandemic hit, but in contrast to the experience following the onset of the 2008 financial crisis, they didn’t stay that way ...

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When M&A Goes Wrong: Lessons From Divestitures

A recent Deal Law Wire blog from Norton Rose reviews a 2020 study addressing why companies divest businesses. The study found that a staggering 77% of divestitures are ...

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Controller’s Receipt of “Non-Ratable Benefit” Mandates Entire Fairness Review

Is a controlling stockholder’s “mere presence” on both sides of a transaction enough to invoke application of the entire fairness standard of review, or is ...

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Antitrust: How Aggressive Will the Biden FTC Be?

A Fried Frank memo discusses managing antitrust risk in the Biden Administration. After noting that regulators have evolved toward more enforcement & have ...

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Controllers: Viva Zapata! Del. Chancery Refuses to Dismiss WeWork Lawsuit

This may sound strange to most of you, but when I took Corporations in the fall of 1984, corporate law was kind of a sleepy backwater. Of course, the area awoke with a ...

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Busted Deals: What If LVMH & Tiffany Went to Trial?

Last year’s dispute between LVMH and Tiffany raised all sorts of intriguing legal issues, but the parties ultimately settled their case before the Chancery Court could ...

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Officer Liability: Recent Trends

Over the past few months, I’ve blogged about several decisions involving potential liability on the part of corporate officers. Frequently, these cases involve ...

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Indemnification: Del. Court Says No Attorneys Fees for 1st Party Claim

A recent Morris James blog discusses the Delaware Superior Court’s decision in Ashland LLC v. Heyman Trust, (Del. Super. 11/20), in which the Court held that the ...

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SPACs: Corp Fin Issues Disclosure Guidance for De-SPACs

Shortly before the Christmas holiday, the SEC’s Division of Corporation Finance issued  CF Disclosure Guidance Topic: No. 11, which provides Corp Fin’s views ...

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Books & Records: Actionable Wrongdoing Not Required for “Proper Purpose”

A Wilson Sonsini memo reviews the Delaware Supreme Court’s recent decision in AmerisourceBergen v. Lebanon County Employees Retirement Fund, (Del. 12/20). In that ...

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Cross-Border: International Issues in Domestic Deals

In the wake of the pandemic, some cash-rich foreign acquirers are likely to take a heightened interest in U.S. targets. A Locke Lord memo says that one of the ...

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Private Equity: PE Funds On the Hunt for Deals in ’21

The results of a Lincoln International survey of more than 150 global private equity investors indicate that they have plenty of dry powder, and their top priority in ...

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More Lessons From the Stream TV Networks Decision

Last week, I blogged about Vice Chancellor Laster’s decision in Stream TV Networks v. SeeCubic, (Del. Ch.; 12/20). My blog focused on the DGCL Section 271 issue ...

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Busted Deals: Ontario Court’s Take on “Ordinary Course” in a Pandemic

In Canada’s first COVID-19 busted deal case, Fairstone Financial Holdings Inc. v Duo Bank of Canada, (Ont. Supr. Ct.; 12/20), an Ontario court rejected a buyer’s ...

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De-SPACs: Your Shareholders Might “Just Say No”

Okapi Partners’ Bruce Goldfarb has authored an interesting Forbes article on some of the issues associated with corralling investor support for de-SPAC transactions. ...

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Doing Deals Remotely: Long-Form Memos as Collaboration Tools

I wrote a bunch of due diligence memos back in the day. My magnum opus was a 200+ page masterpiece of monotony summarizing the results of my team’s review of ...

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DGCL Section 271 Doesn’t Apply to Insolvent Corp.’s Asset Transfer

Section 271 of the DGCL generally requires stockholder approval for a company’s sale of substantially all of its assets. Most of the litigation involving Section 271 ...

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Disclosure Claims: Another CEO Ends Up Holding the Bag

Last month, I blogged about the Chancery Court’s decision in In re Baker Hughes Merger Litigation, in which a seller’s CEO was left holding the bag on fiduciary duty ...

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Hostile Takeovers: On the Comeback Trail?

A Veritas memo discusses the increase in hostile takeover activity in recent months and offers some tips on takeover preparedness. This excerpt reviews some of the ...

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LBOs: Seller’s Directors on the Hook for Post-Closing Insolvency

Every now and again there’s a decision on director or shareholder liability in a bankruptcy that just fills corporate lawyers with dread, and you can usually count on ...

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Antitrust: Key Issues in U.S. Tech & Pharma Deals

The lawsuits filed yesterday by the FTC & a coalition of state AGs seeking to break up Facebook have further heightened the profile of antitrust issues in the tech ...

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Fee Shifting: A New Tool for Books & Records Plaintiffs?

Books & records demands under Section 220 of the DGCL are becoming more frequent, and Delaware courts have proven willing to expand the boundaries of the inspection ...

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Busted Deals: Del. Chancery Weighs In on COVID-19 Deal Terminations

We’ve all been waiting for the courts to provide some guidance on pandemic-related deal terminations. Last week, the Delaware Chancery Court became the first court to ...

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Activism: Perspectives on Proxy Fights

Activist Insights’ recent publication, “Proxy Fights 2020,” provides a variety of perspectives on avoiding, preparing for, contesting & winning proxy fights in ...

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Post-Closing Adjustments: COVID-19 Issues

A recent SRS Acquiom memo addresses some of the more novel post-closing scenarios that have arisen in M&A transactions as a result of the COVID-19 pandemic. Here’s ...

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Guest Blog: “The Deal Lawyer’s Weapons in the War on COVID-19”

Today’s blog comes from Prof. Samuel Thompson, Director of Penn State Law School’s Center for the Study of M&A. Prof. Thompson has written a new book titled, ...

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Busted Deals: Why Litigate If You’re Just Going to Renegotiate?

We’ve seen quite a few high profile COVID-19 busted deal cases that started out in litigation end up with a negotiated resolution. That’s not unusual; after all, ...

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Controllers: Del. Chancery Upholds Stock Issuance Dilution Claims (For Now)

In In re TerraForm Power, Inc. Stockholder Litigation, (Del. Ch.; 10/20), the Chancery Court refused to dismiss claims alleging that a company’s board and controlling ...

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National Security: U.K. Bill Would Heighten Scrutiny of FDI

Part of the fallout from the pandemic has been an acceleration of a global trend toward tighter regulation of foreign direct investments. A Simpson Thacher memo ...

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Disclosure: Del. Chancery Leaves CEO Holding the Bag for Alleged Proxy Deficiencies

Chancellor Bouchard’s recent decision in In re Baker Hughes Inc. Merger Litigation, (Del. Ch.; 10/20), illustrates the potential hazards faced by corporate officers ...

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Disclosure: When Are Merger Negotiations MNPI?

Over on TheCorporateCounsel.net, I recently blogged about the SEC’s enforcement action against Endeavor LLC, which arose out of the company’s implementation of a ...

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Activism: Preparing for What 2021 May Bring

A Morgan Lewis “white paper” takes a deep dive into what companies should be preparing for when it comes to shareholder activism during the 2021 proxy season. ...

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Simon/Taubman: Revised Deal Reduces Conditionality Along with Price

By now, you’ve probably heard the news that Simon Properties & Taubman Centers have agreed to settle their dispute and move forward with a deal at a purchase price ...

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D&O Insurance: The Importance of Tail Coverage for Seller’s Directors

A Woodruff Sawyer blog addresses the importance of “tail” coverage for the seller’s directors in an M&A transaction. Here’s an excerpt: In M&A, the ...

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Appraisal: Sound Process Leads to Deal Price Fair Value Determination

The Delaware Supreme Court’s recent decision in the Jarden appraisal proceeding appears to have given new life to the use of a target stock’s “unaffected market ...

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Due Diligence: Best Practices for FCPA & Anti-Bribery Issues

A Cahill memo addresses best practices for addressing FCPA and related anti-bribery issues during the due diligence phase of a potential acquisition and during the ...

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Post-Closing Adjustment: Seller’s “Unclean Hands” Don’t Excuse Buyer’s Delay

Most of the time, the Delaware Chancery Court’s opinions that are blog-worthy are quite lengthy. I run a volume business here, so when I find a short one that fits the ...

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Antitrust: What Does the FTC Want When It Asks for “All Documents”?

The FTC’s Bureau of Competition recently blogged some guidance about the types of communications covered by the “all documents” specifications in its Second ...

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Controllers: The Facebook Decision’s Lessons for M&A

While the Delaware Chancery Court’s recent decision in United Food & Commercial Workers v. Zuckerberg (Del. Ch.; 10/20) has attracted a lot of attention, the case ...

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Contract Fraud: Del. Chancery Upholds Another M&A-Related Claim

The Delaware Chancery Court’s recent decision in Roma Landmark Theaters v. Cohen Exhibition, (Del. Ch.; 9/20) represents the latest in a series of M&A-related ...

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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: – Q3 2020 represented the lowest level of ...

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The Election’s Impact On M&A: What Do Dealmakers Think?

As Americans head to the polls today, Datasite’s recent survey on how dealmakers think the election will impact M&A is particularly timely. Here are some of the ...

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Antitrust: How Will the Election Influence Merger Enforcement?

Dechert recently issued its quarterly report on antitrust merger investigations. The report says that investigative activity declined during Q3, with only four ...

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LVMH/Tiffany: $430MM Price Concession Buys More Certainty

It looks like LVMH & Tiffany decided to kiss and make up. Earlier this week, the parties announced that they had agreed to amend their existing merger agreement ...

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D&O Insurance: Del. Supreme Court Holds Appraisal Not a “Securities Claim”

Last year, I wrote about the Delaware Superior Court’s decision in Solera Holdings v. XL Specialty Ins., (Del. Super.; 7/19), which held that a D&O policy’s duty ...

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M&A Agreements: Who Holds the Pen?

Bloomberg Law recently surveyed deal lawyers to find out who takes the lead on drafting deal documents in M&A transactions. The results aren’t necessarily ...

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Aiding & Abetting: Del. Chancery Dismisses Claims Against Co-Investor

In Jacobs v. Meghji, (Del. Ch.; 10/20), the Delaware Chancery Court dismissed claims against an investor that participated side-by-side with a controlling stockholder in ...

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MAE Clauses & COVID-19: Guidance From Across the Pond

We’re still waiting on U.S. courts to address the issues surrounding MAE clauses & the pandemic, but at least one English court has weighed-in on them. A Goodwin ...

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SPACs: Sponsor Liability Risks

One thing that’s been conspicuously absent during 2020’s SPAC craze has been a discussion of some of the liability risks that go along with a “de-SPAC” merger ...

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Acquired Company Financials: A Quick Reference

I really like the Latham & Watkins “Guide to Acquired Business Financial Statements.” It provides a concise overview of the SEC’s acquired company financial ...

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National Security: An Overview of the New CFIUS Regime

If you’re looking to get your arms around the CFIUS national security review regime following the full implementation of FIRRMA, check out the Wilson Sonsini memo. ...

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M&A Trends: Dealmakers Expect Return to Pre-Pandemic Activity Levels

According to Deloitte’s 2020 M&A Trends Survey, 61% of U.S. dealmakers expect M&A activity to return to pre-COVID-19 levels within the next 12 months. The ...

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Beyond TikTok: Dealing with the Politicization of M&A

President Trump’s intervention to compel the sale of TikTok highlights the extent to which M&A has become politicized. But a CFO Dive article points out that the ...

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Revlon: Chancery Refuses to Dismiss “Paradigmatic” Complaint

Structuring and implementing a good sale process is essential if directors and officers are to satisfy their fiduciary obligations in M&A transactions. That’s ...

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Private Equity: Loyalty Issues for Designated Directors

It’s pretty standard for private equity funds to have the right to designate directors of their portfolio companies. There are all sorts of good business reasons to do ...

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COVID-19 Uncertainties: The Stock-for-Stock Alternative

The market volatility and business uncertainties resulting from the pandemic have made it harder for potential buyers and sellers to see eye-to-eye on valuation and have ...

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Antitrust: Mitigating the Risk of Non-Competes

Non-competition agreements are often a key component of an M&A transaction. But as discussed in a McDermott Will & Emery memo, they are also an enforcement ...

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Change in Ownership: SBA Guidance on Consent Requirements for PPP Borrowers

I’ve previously blogged about navigating the consent requirements applicable to M&A transactions involving PPP borrower targets. Last Friday, the SBA issued ...

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Activism & Hostile Bids: The Vacation’s Over

In the early days of the pandemic, it seemed that activism and hostile activity took a bit of a holiday. Market volatility made activists unwilling to commit to ...

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M&A Leaks Report: Dealmakers More Chatty in 2019

Intralinks recently released its annual “M&A Leaks Report.” Once again, the report makes for interesting reading — it analyzes deal leaks over the period from ...

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M&A Litigation: Contractual Fraud Claims Are the New Black

As I read the Chancery Court’s recent decision in Pilot Air Freight v. Manna Freight Systems, (Del. Ch.; 9/20), I experienced a very strong feeling of deja vu. Maybe ...

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Better Days Ahead for Dealmaking?

At this point, it’s not exactly news that 2020 hasn’t been a great year for M&A, but there are signs that activity has been picking up over the past few months. ...

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Breakup at Tiffany’s Part Deux: The Empire Strikes Back!

When Tiffany & Co. filed a lawsuit against LVMH seeking to stop the French luxury giant from backing out of its deal to acquire the company, LVMH declared that ...

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Busted Deals: Specific Performance a Tough Sell in COVID-19 Lawsuits

A Cooley blog reviews the busted deal litigation that’s arisen following the onset of the pandemic. Among other things, the blog discusses the challenges that sellers ...

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National Security: Treasury Tweaks CFIUS Mandatory Declaration Rules

Earlier this month, the Treasury Dept. amended the rules governing CFIUS mandatory declarations. Here’s the intro from a Simpson Thacher memo: On September 15, ...

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Del. Court Says Merger is Assignment “By Operation of Law”

A recent Delaware Superior Court decision serves as a reminder that, under Delaware law, a merger may well involve an assignment by operation of law — even if the ...

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Antitrust: Proposed HSR Change Could Make Activism Stealthier

On Monday, the FTC issued a Notice of Proposed Rulemaking that could mean big changes when it comes to the obligations of activist investors to make HSR filings. ...

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Busted Deals: Simon Accuses Taubman of Additional Breach

Simon Properties’ lawsuit against Taubman Centers is one of the more interesting pieces of pandemic-related busted deal litigation. That case isn’t pending in ...

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Exclusive Forum Bylaws: You Win Some, You Lose Some

A couple of recent California decisions provide some good news — and some bad news — when it comes to the enforceability of corporate exclusive forum bylaws. The ...

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COVID-19 Busted Deals: Fewer Lawsuits Than You Might Think

There’s an interesting analysis from Bloomberg Law that says despite the handful of high-profile deal termination disputes that we’ve seen since the pandemic upended ...

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Earnouts: Best Practices for Avoiding Disputes in the COVID-19 Era

We’ve seen a lot of insightful commentary on earnouts during the pandemic, and I’ve blogged about the topic quite a bit. The need to bridge valuation gaps is more ...

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SPACs: What’s Behind the Craze?

For most people and businesses, 2020 has been a lousy year, but that’s definitely not the case for SPACs. A PitchBook article explains how the events of 2020 have ...

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Fiduciary Duties: Exculpatory Charter Provision Saves the Day

Delaware’s Corwin doctrine has become the first line of defense against many M&A fiduciary duty claims. But the Chancery Court’s recent decision in In re: USG ...

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Breakup at Tiffany’s? LVMH Looks for an Exit

Yesterday’s New York Times DealBook had a nice write-up on the battle brewing between LVMH and Tiffany & Co. over the French luxury giant’s efforts to back out ...

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Private Equity: 10 Steps for Reducing Sponsors’ Liability Risks at Portfolio Companies

Even before the disruptions caused by the COVID-19 pandemic, private equity sponsors were increasingly on the receiving end of claims seeking to hold them responsible ...

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Antitrust: Overview of Q2 M&A Regulatory Actions

A McDermott Will & Emery memo provides a “snapshot” of U.S. and EU antitrust regulatory activity during the second quarter of 2020. Here’s the intro: In the ...

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Conflicts of Interest: Chancery Highlights Limits of Directors’ Abstention Defense

When I was a young lawyer, a senior labor partner in my firm kept what he called a “Pontius Pilate Kit” on prominent display in his office. It consisted of a bottle ...

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Antitrust: DOJ Issues Merger Remedies Manual

Yesterday, the DOJ released its 38-page Merger Remedies Manual, which updates its 2004 Policy Guide and provides a framework for the Antitrust Division to structure and ...

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Implied Covenant: Buyer’s “Hail Mary” Falls Incomplete

A claim based on the implied covenant of good faith and fair dealing has always reminded me of the “Hail Mary” play in football — it’s usually a desperate last ...

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Venture Capital: Silicon Valley Venture Capital Survey

Fenwick & West recently published its Silicon Valley Venture Capital Survey for the second quarter of 2020. The survey analyzed the terms of 203 Silicon Valley ...

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Anthem-Cigna: Chancery (Eventually) Says, “You’ll Get Nothing & Like It!”

I’m told that the Delaware Chancery Court’s decision in Akorn v. Fresenius, (Del. Ch.; 10/18), was the longest opinion in the Court’s storied history. Well, it ...

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PPP Loans: Navigating Lender & SBA Consents in M&A Transactions

I’ve previously blogged about some of the complications that parties to an M&A transaction have to deal with when the target is a borrower under the SBA’s ...

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Del. Chancery Refuses to Dismiss Fraud Claims Tied to Breach of Rep

One of the things that buyers worry most about is the seller’s loss of a major customer between signing and closing. That’s why acquisition agreements contain reps ...

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Assessing The Pandemic’s Impact on M&A Going Forward

Deal activity took a nosedive when the pandemic hit, but as buyers and sellers begin to re-engage, they find themselves in a changed environment. A Simpson Thacher memo ...

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Fiduciary Duties: Post-Announcement Renegotiation of Deal Terms

I’ve previously blogged about the Delaware Supreme Court’s decision in Fort Myers Gen. Empl. Pension Fund v. Haley, (Del. 7/20), and the Chancery Court’s decision ...

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Attorney-Client: The Limits of Privilege in Antitrust Merger Review

A WilmerHale memo discusses a recent federal court decision that addresses a variety of attorney-client privilege issues arising out of the antitrust merger review ...

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National Security: Post-Closing CFIUS Review Unwinds TikTok Deal

Unless you’ve been living under a rock for the last several weeks, you’re well aware of President Trump’s efforts to first ban, and then compel the sale of, the ...

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Fee-Shifting: Del. Chancery Upholds “Loser Pays” Contract Term

In 2015, the DGCL was amended to expressly prohibit the use of fee-shifting bylaw provisions in connection with internal corporate claims, but are contractual ...

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Fraud: Del. Chancery Upholds Claims Based on Allegedly False Reps

Contractual reliance disclaimers can be helpful in precluding fraud claims based on non-contractual statements, but as the Delaware Chancery Court’s decision in ...

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R&W Insurance: Do Insurers Pay Claims?

I’ve blogged a lot about R&W Insurance, and with good reason — it’s become a central part of the deal process for private company M&A. But until now, I ...

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Antitrust: HSR Second Requests Up in 2019, but Challenges Down

The FTC and DOJ published their HSR Act Annual Report last month, and it discloses that while HSR second requests rose during 2019, the percentage of deals challenged ...

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SPACs: Does Ackman’s SPAC Change the Game?

A Debevoise memo takes a look at the SPAC recently launched by Bill Ackman’s Pershing Square Capital, and notes that in addition to being the largest SPAC IPO of all ...

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National Security: Treasury Publishes 2019 CFIUS Annual Report

On July 31, 2020, the Treasury Department published its Annual Report to Congress on all notices filed with CFIUS in 2019 and all reviews or investigations completed ...

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Del. Chancery Dismisses Challenge to M&A Retention Comp

The Delaware Chancery Court recently rejected a challenge to a retention plan implemented by Fox in connection with the spinoff of its broadcasting business to a new ...

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Private Equity: Portfolio Company Borrowers Driving COVID-19 Defaults

According to the recent “Institutional Investor” article, PE-backed firms have led the charge when it comes to defaults on indebtedness related to COVID-19 — and ...

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Antitrust: The FTC Knows If You’ve Been Bad or Good. . .

I never thought that the FTC had anything in common with Santa Claus until I read this recent bit of guidance from the Bureau of Competition. It turns out that, like ...

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Private Equity: COVID-19’s Global Impact

A recent Ropes & Gray memo reviews the pandemic’s impact on private equity around the globe. For the North American market, topics include, among others, portfolio ...

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Books & Records: The Chancery Court Provides a Primer

Francis Pileggi recently blogged about Vice Chancellor Laster’s decision in Woods v. Sahara Enterprises, (Del. Ch.; 7/20). He characterizes the opinion as “must ...

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Antitakeover: Evaluating Your Defenses

A Bass Berry blog says that it’s a good time for companies to take a hard look at their defensive profiles. Here’s the intro: As public companies continue to ...

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Due Diligence: Prepared Sellers Stand Out in Buyer’s Market

A recent Norton Rose Fulbright blog stresses the importance of sellers being prepared for buyer due diligence if they want to successfully pursue a transaction in the ...

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SPAC Acquisitions: Key Considerations for Targets

SPACs are definitely having a moment, and the current boom in SPAC IPOs will likely be followed by a boom in “De-SPAC” acquisition transactions — or at least ...

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Del. Chancery Sustains Aiding & Abetting Claim Against Financial Advisor

Do you remember Cede v. Technicolor? Litigation involving Technicolor’s 1983 going private deal dragged on for over 20 years, and made five trips to the Delaware ...

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Private Equity: PE Grabs Larger Piece of the Small & Mid-Market Pie

According to a recent Bloomberg Law analysis, the COVID-19 pandemic may be depressing the M&A market, but PE funds aren’t wasting the crisis. Instead, they’re ...

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Appraisal: Chancery Applies DCF to Determine Squeeze-Out Fair Value

When I taught law school, I absolutely hated grading exams. It was a frustrating and humbling (am I really this bad of a teacher?) process, and an extremely time ...

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Antitrust: FTC Unhappy With Slow Divestitures

According to a McDermott Will & Emery blog, the FTC has its nose out of joint about the pace of implementation of required post-closing divestitures — and that may ...

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M&A Disclosure: 3rd Cir. Says Proxy “Risk Factors” Require Specifics

Last month, in Jaroslawicz v. M&T Bank Corp., (3rd Cir; 6/20), the 3rd Circuit vacated the dismissal of a Section 14(a) claim premised on allegedly inadequate risk ...

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Controllers: Minority Shareholder Negotiations Result in Loss of MFW

It’s easy to see why a controlling shareholder contemplating a take-private transaction would want to reach out to obtain support from large minority shareholders ...

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Antitrust: Merger Review During the COVID-19 Crisis

A recent Sidley memo (p. 6) provides insights into the antitrust merger review process during the COVID-19 crisis. We’ve touched on some of the memo’s key takeaways ...

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Private Equity: Sponsors Preparing for Exit Window to Open

With valuations taking a big hit and the turmoil that the pandemic has created for many portfolio companies, many sponsors that might otherwise have sought an exit this ...

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Reasons for Optimism? CFOs Bullish on M&A Prospects

There hasn’t been much for dealmakers to cheer about in recent months, but a Deloitte report suggests that there may be some reason for optimism about what lies ahead ...

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Appraisal: Del. Supreme Court Upholds “Unaffected Market Price” Valuation

Remember when the Delaware Supreme Court issued a sharply worded opinion reversing Vice Chancellor Laster’s decision to adopt an “unaffected market price” approach ...

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Activism: Investors Are Willing to Listen to the Pitch

I don’t think it will come as a surprise to many public companies to learn that their investors are becoming more open to listening to pitches from activist ...

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M&A Financials: SEC’s New Rules Give Carve-Outs a Break

Public companies acquiring divisions or product lines have often had to seek Corp Fin’s sign-off on the use of abbreviated acquired company financial statements in ...

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Earnouts: Structuring Considerations for the COVID-19 Environment

A recent Sidley memo discusses how the implications of the COVID-19 crisis may require buyers and sellers to scrutinize earnout provisions with a “new lens,” whether ...

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M&A “Common Interest” Privilege Doesn’t Cover Commercial Interests

The “common interest” privilege protects privileged information that is exchanged by two parties represented by counsel concerning a legal matter in which they share ...

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Antitrust: FTC & DOJ Issue Vertical Merger Guidelines

The FTC & DOJ just issued the final version of their Vertical Merger Guidelines. As I mentioned when I wrote about the draft guidelines issued last January, this ...

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Conflicts of Interest: Undisclosed Comp Discussions Rebut BJR

Yesterday, in Fort Myers Gen. Emp. Pension Fund v. Haley, (Del. 6/20), the Delaware Supreme Court overruled an earlier Chancery Court decision and held that a seller ...

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M&A Disclosure Claims: Somebody Actually Litigated One!

Post-Trulia, most M&A disclosure lawsuits have been brought in federal court and have alleged violations of Section 14(a) & Rule 14a-9 under the Exchange Act. ...

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National Security: CFIUS Prepares to Drop the Hammer

Earlier this month, the Treasury Department announced the creation of a new website dedicated to CFIUS’ monitoring and enforcement functions. A Wilson Sonsini memo ...

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

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

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Controllers: Dell Redemption Flunks MFW

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

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

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

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Shareholder Representative Appointment Provision Limits Discovery

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

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

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

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Will CARES Act NOL Breaks Spur M&A Activity?

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

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Take Privates: An Overview of the Process

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

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Beyond Earnouts: Bridging Valuation Gaps in the Current Environment

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

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

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

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Revisiting Earnouts During the COVID-19 Era

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

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

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

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

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

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Del. Chancery Dismisses Claims Based on Anti-Reliance Language

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

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Due Diligence: Dealing with PPP Borrowers

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

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Poison Pills: Overview of NOL Rights Plans

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

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M&A Financials: Working with the New Rules

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

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

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

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M&A Market: What Deals are Getting Done?

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

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National Security: Changes Proposed to CFIUS Mandatory Declaration Rules

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

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Distressed Deals: Bankruptcy Court Ruling Tarnishes “Golden Shares”

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

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SEC Adopts Overhaul of M&A Financial Info

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

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

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

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Antitrust: FTC Provides Guidance on HSR Filing Fees

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

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Due Diligence: Getting Your Arms Around COVID-19 Issues

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

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Busted Deals: Lessons From COVID-19 Litigation

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

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

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

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Distressed M&A: Dealmaking In The New Normal

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

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National Security: Governments Heighten Scrutiny of FDI

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

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Entire Fairness: Chancery OKs Strategy to Fund Controller Preferred Redemption

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

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Study: Private Target Deal Terms

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

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Deal Terminations: “Things Fall Apart…”

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

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

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

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

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

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

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

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

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

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

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

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

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

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National Security: CFIUS Update

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

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

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

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

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

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Private Equity: Debt Finance Opportunities for Middle-Market Funds

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

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

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

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Antitrust: FTC Files Post-Deal Challenge to Minority Investment

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

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

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

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Satisfying “Efforts Clauses” in a COVID-19 Environment

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

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

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

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Survey: Middle Market Deal Terms

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

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

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

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

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

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

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

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Rep & Warranty Insurance: Aon Releases Study on Claims Experience

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

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

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

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

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

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Del. Chancery Says No Turning Back After Buyout Notice

In an effort to maintain my sanity by providing some non-pandemic content, I stumbled across the Chancery Court’s recent decision in Walsh & Devlin v. White House ...

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Debt Restructurings May Trigger CFIUS Review

Unfortunately, there’s likely to be an avalanche of debt restructurings over the coming months, and a Ropes & Gray memo says that some of them may trigger CFIUS ...

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Antitrust: HSR Early Terminations Back on the Table

That was fast. A couple of weeks ago, I wrote about the FTC’s implementation of temporary e-filing procedures and its decision to deny HSR early termination requests ...

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Proxy Contests: Will COVID-19 Put Them on Ice?

A Sidley memo says that one of the consequences of the coronavirus outbreak may be a decline in proxy contests during the current season. As this excerpt points out, the ...

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COVID-19 And M&A: Impact On Public Deals

We’re starting to see some information on how COVID-19 has affected the deal market, along with some speculation about what it may mean for M&A going forward. ...

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Activism: Preparing For The New Environment

Earlier this week, I wrote about the possible resurgence of poison pills in response to the unprecedented market volatility resulting from the COVID-19 pandemic. A ...

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Antitrust: More COVID-19 Implications For Merger Review

I wrote last week about the FTC’s decision to not grant early termination of the HSR waiting period while its COVID-19 driven temporary e-filing rules are in effect. ...

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