Bank Mergers: OCC Announces Proposed Changes to Review Process

Late last month, the OCC announced proposed changes to its rules regarding business combinations involving national banks and federal savings associations. ...

Read More

Non-Competes: Del. Supreme Court Upholds Forfeiture for Competition Provision

Recent Delaware case law addressing non-competes has been decidedly unfavorable to those attempting to enforce them, but a new Delaware Supreme Court decision suggests ...

Read More

Due Diligence: Addressing Labor Issues in a Changing Environment

Organized labor has scored some impressive victories in the past year, and unions’ increasing leverage in collective bargaining and enhanced organizing efforts have ...

Read More

Private Equity: The Problematic Role of LPACs

As continuation fund strategies have become more important to private equity sponsors, the role of Limited Partner Advisory Committees, or LPACs, in policing potential ...

Read More

Heightened Antitrust Scrutiny Impacting M&A Financing

We’ve written extensively about the FTC and DOJ’s aggressive approach to antitrust enforcement — from the cases pursued to the expanded premerger notification ...

Read More

Controllers: Does MFW Apply Beyond Squeeze-Outs?

Delaware’s MFW doctrine was originally developed to offer a path to the business judgment rule for squeeze out mergers. Over time, however, its use has expanded ...

Read More

Is the SBUX Proxy Contest a Sign of Things to Come?

I’m sure you’ve already heard about the Starbucks proxy contest led by the Strategic Organizing Center, a coalition of labor unions, including the Service Employees ...

Read More

Private Equity: Family Offices Stay Bullish on PE Funds & Direct Investments

Family offices have become increasingly important players in the space traditionally occupied by private equity and venture capital funds. According to a recent Citi ...

Read More

Don’t Discount the Value of Alternative Deal Types

Last month, Boston Consulting Group released its 2023 M&A Report in four chapters. Since these reports have been issued annually since 2003, the first chapter, ...

Read More

Private Equity: Tough Deal Market Doesn’t Dent Compensation

You might think that with 2023’s challenging M&A environment, PE fund employees would be experiencing a big compensation hit. This Institutional ...

Read More

Antitrust: DOJ & FTC Pulling Back From Aggressive Enforcement Positions?

A recent Mayer Brown memo provides an overview of the significant changes that the Biden Administration is attempting to make when it comes to antitrust regulation of ...

Read More

Due Diligence: DOJ Addresses Voluntary Self-Disclosure in M&A

Last February, the DOJ announced a new corporate voluntary self-disclosure (VSD) policy that provides incentives to encourage self-disclosure of corporate misconduct, ...

Read More

Books & Records: Del. Chancery Rejects Demands for Director Texts, Emails

Delaware case law in recent years has established that under appropriate circumstances, directors’ emails and text messages may be regarded as books and records ...

Read More

Earnouts: Del. Chancery Refuses to Rewrite Contract Terms Once Again

In AECOM, et al. v. SCCI National Holdings, Inc., (Del. Ch.; 9/23), the Chancery Court declined a buyer’s request to rewrite the terms of a purchase agreement and ...

Read More

More on Antitrust and Private Equity: FTC Takes Issue with ‘Roll-up’ Strategy

Late last week, the FTC filed a lawsuit against a PE firm and one of its portfolio companies challenging a serial acquisition strategy. In the complaint, the FTC alleges ...

Read More

Antitrust: The Impact of the Draft Merger Guidelines on Private Equity

Earlier this month, the CLS Blue Sky Blog ran a post from Paul Weiss discussing ways the DOJ and FTC’s proposed merger guidelines will impact private-equity-sponsored ...

Read More

Due Diligence: Check Compliance with the Corporate Transparency Act

Over on TheCorporateCounsel.net, John and Dave have blogged about FinCEN’s rules for reporting beneficial ownership information under the Corporate Transparency Act ...

Read More

Survey: Middle Market Deal Terms

Seyfarth Shaw recently published the ninth edition of its “Middle Market M&A SurveyBook,” which analyzes key contractual terms for 105 middle-market private ...

Read More

Duty of Disclosure: Officers are In a Tough Spot

In Cygnus Opportunity Fund, LLC, et al. v. Washington Prime Group, LLC, (Del. Ch.; 8/23), the Delaware Chancery Court refused to dismiss breach of fiduciary duty ...

Read More

National Security: CFIUS ‘Pressure Testing’ Passive Investor Claims

Dechert recently posted highlights from Treasury’s 2nd Annual CFIUS Conference. There are plenty of interesting nuggets to be found there, but one that caught my eye ...

Read More

Busted Deals: Nevada Weighs In on COVID-19 Interim Operating Covenants

We spent a lot of time blogging about COVID-19 deal terminations during the height of the pandemic. Allegations that a target’s actions in response to the pandemic ...

Read More

Non-Competes: Del. Chancery Declines to ‘Blue Pencil’ Another One

It hasn’t been a good year for plaintiffs seeking to enforce non-compete clauses in Delaware Chancery Court, and things didn’t improve last month when Vice ...

Read More

Del. Chancery Upholds Disparate Voting Rights for Same Class of Stock

One of the issues under Delaware law that has generated some uncertainty over the years is the extent to which the DGCL permits a corporation to create a mechanism in ...

Read More

Private Equity: CSRD May Impact You, Too

A recent Debevoise update may be a little different from our usual blog topics, but I worry that the EU’s Corporate Sustainability Reporting Directive (“CSRD”) — ...

Read More

Private Equity: Private Fund Adviser Rules Challenged In Court

In early September, six trade associations jointly filed a lawsuit in federal court challenging the validity of the SEC’s recently adopted Private Fund Adviser Rules. ...

Read More

Health Care Transactions: States Enact ‘Mini-HSR’ Acts

A Morgan Lewis alert highlights 10 states that now have enacted “mini-HSR” laws that require notifications to state agencies and waiting periods in health care ...

Read More

More Companies Facing Multiactivist ‘Swarms’

Sullivan & Cromwell’s 2023 Corporate Governance Developments gives an excellent overview of board and committee agenda topics that are relevant right now. On ...

Read More

Del. Chancery Declines to Award Specific Performance in De-SPAC Merger Fight

Yesterday, in 26 Capital Acquisition Corp., et. al. v. Tiger Resort, (Del. Ch.; 9/23), Vice Chancellor Laster denied a SPAC buyer’s motion for a decree of specific ...

Read More

Antitrust: Will the FTC and DOJ’s Failed Attacks on Vertical Deals Spark a Merger Wave?

We’ve blogged quite a bit about the FTC and DOJ’s aggressive approach to merger enforcement and the agencies’ willingness to adopt novel theories in litigation. ...

Read More

Due Diligence: Government Contractors

A recent Grant Thornton memo provides some thoughts on the unique diligence issues that buyers confront when buying a government contractor. This excerpt addresses the ...

Read More

Distressed Deals: Transactional Risk Insurance

A recent Willis Towers Watson blog says that both debtors and potential buyers of distressed assets should consider using R&W insurance and the other transactional ...

Read More

Advance Notice Bylaws: High Bar to Show ‘Radical Shift’ for Reopening of Window

The Delaware Chancery Court established the standard for reopening an advance notice bylaw deadline over 30 years ago in Hubbard v. Hollywood Park Realty Enterprises ...

Read More

Fiduciary Duties When Settling with Activists

Gibson Dunn recently published its 2022 Activism Update. The report gives detailed information about individual activist campaigns and settlements and some summary ...

Read More

Integration Issues: Address Employment Considerations Early

A recent insight from DLA Piper highlights employment issues that are key for successful post-acquisition integration and best managed before signing the purchase ...

Read More

Purchase Price Adjustment Disputes: Accountants as Experts or Arbitrators?

A recent Sheppard Mullin blog discusses the role of the independent accountant in resolving disputes in a purchase price adjustment calculation and, in particular, the ...

Read More

More On: SEC Adopts Private Fund Adviser Rules

John blogged last week about the SEC’s adoption of new rules and amendments intended to tighten the regulation of private fund advisers. Like most recent rules, they ...

Read More

Director Interlocks: FTC Targets Non-Corporate Entities

The DOJ and FTC’s enforcement push targeting director interlocks raised several unanswered questions, including whether Section 8 of the Clayton Act applied to ...

Read More

Private Equity: SEC Adopts Private Fund Adviser Rules

The SEC recently announced the adoption of new rules and amendments intended to tighten the regulation of private fund advisers. This excerpt from the Fact Sheet ...

Read More

Antitrust: The Draft Merger Guidelines & Non-US Regulators

The DOJ and FTC’s draft merger guidelines have resulted in an avalanche of law firm memos — which we’re posting in our “Antitrust” Practice Area. But one ...

Read More

Fiduciary Duties: Blasius Lives on as ‘Blasius Minus’?

Last month, I joined the chorus of commenters who proclaimed the death of the Blasius v. Atlas Industries standard of review after the Delaware Supreme Court’s ...

Read More

Private Equity: Sponsors Put More Skin in the Game Through NAV Loans

I recently blogged about PE sponsors putting more equity in their deals in response to the challenging deal financing environment. Now, a recent Institutional Investor ...

Read More

Special Litigation Committees: One Person is Good Enough But Work Will Be Carefully Examined

This spring on TheCorporateCounsel.net, John blogged about the Delaware Chancery Court’s decision in In re Baker Hughes, a GE Company, Derivative Litigation, (Del. Ch. ...

Read More

Appraisal: No Deference to Deal Price in Squeeze-Outs Conditioned on MFW

The Delaware Chancery Court has issued a post-trial decision in HBK Master Fund LP v. Pivotal Software, Inc., an appraisal action brought by the former Class A common ...

Read More

Drafting M&A Documents Following the 2023 DGCL Amendments

On TheCorporateCounsel.net, I recently blogged about the 2023 amendments to the DGCL. The governor of Delaware signed those amendments into law on July 17th and, with a ...

Read More

It’s Here: Outbound Investment Screening

The Biden administration issued an executive order on August 9th that declared a national emergency and directed the Treasury and Commerce departments to adopt ...

Read More

Cross-Border: Navigating European Labor Issues

Dealing with labor and employment issues when acquiring a business in Europe can be a complicated process. In addition to being represented by a national labor union, ...

Read More

National Security: CFIUS Issues 2022 Annual Report to Congress

Last month, CFIUS issued its 2022 Annual Report to Congress. The report highlights key indicators of CFIUS’s activities and process, including the complexity and ...

Read More

Del. Chancery Addresses Expectation Damages Calculation

Damage awards for breaches of a merger agreement are usually intended to give the buyer the “benefit of its bargain,” but Vice Chancellor Will’s recent opinion in ...

Read More

National Security: CFIUS Requiring Mitigation Agreements in Voluntarily Noticed Deals

Hunton Andrews Kurth recently issued a mid-year review of notable CFIUS developments. This excerpt discusses an emerging trend toward requiring parties to enter into ...

Read More

M&A Disputes: Survey Says Digital Assets & AI Likely Sources of Conflict

Berkeley Research Group recently published its Mid-Year M&A Disputes Report, which addresses emerging hotspots and assesses the broader global M&A disputes ...

Read More

Fiduciary Duties: Del. Supreme Court Holds Charter Can’t Alter Standard of Review

The Delaware Supreme Court recently issued its decision in CCSB Financial v. Trotta, (Del.; 7/23), in which it affirmed the Chancery Court’s prior ruling that an ...

Read More

M&A Finance: PE Buyers Using More Equity to Finance Add-Ons

In a tough deal financing market, PE buyers have increased the amount of equity they’re willing to invest in order to fund add-on transactions. Here’s an excerpt ...

Read More

Aiding and Abetting: Del. Chancery Tags Buyer with $400M Judgment

I’ve blogged several times about recent cases involving aiding and abetting claims against buyers. This is a significant emerging trend and I’ve generally tried to ...

Read More

Effective Now: EU Foreign Subsidies Regulation

Skadden recently issued a memo with an important update from “across the pond” on the Foreign Subsidies Regulation (“FSR”). As a reminder, here’s a snippet ...

Read More

Trending M&A: Acqui-Hires

In an acqui-hire, the buyer is primarily interested in the skills and expertise of key employees of the target, and not necessarily its products/services or assets. ...

Read More

Report: M&A Risks in First Half of 2023

Developed in partnership with MergerMarket, Aon recently published a report entitled “M&A Risk in Review,” which references survey data from 50 senior executives ...

Read More

More on ‘Antitrust: DOJ & FTC Issue Draft Merger Guidelines’

John recently shared an excerpt from the Fact Sheet highlighting the key provisions of the DOJ and FTC’s proposed 2023 Draft Merger Guidelines. A S&C memo provides ...

Read More

Activism: Be Prepared!

In a recent HLS blog, Kirkland & Ellis partners Shaun Mathew and Daniel Wolf detail 10 important questions to consider to make sure your board is prepared for a ...

Read More

Due Diligence: Implications of the SCOTUS Affirmative Action Decision

On TheCorporateCounsel.net, Liz blogged about the potential implications of SCOTUS’s recent decision striking down affirmative action in college admissions on ...

Read More

Antitrust: DOJ, FTC Issue Draft Merger Guidelines

The DOJ and FTC issued for public comment their long-awaited 2023 Draft Merger Guidelines. The draft was accompanied by a four-page Fact Sheet highlighting their key ...

Read More

Universal Proxy: Where Are We After 1 Year?

With the first anniversary of the effective date of the universal proxy rules fast approaching, commentators are starting to provide some thoughts on the extent to which ...

Read More

Del. Chancery Pours Cold Water on Mootness Fees for Disclosure Claims

Mootness fees have become a popular alternative for plaintiffs asserting M&A disclosure claims post-Trulia. The traditional pattern for these cases has been for ...

Read More

Updated: Everything You Always Wanted to Know About Finders (But Were Afraid to Ask)

In an update to a prior alert (thanks to past John circa five years ago for this blog title!), Venable recently released a detailed memo providing an overview of when a ...

Read More

Nasdaq’s New De-SPAC FAQ

In the first week of July, Nasdaq published four FAQs focused on SPACs. The FAQs address the following topics: – When a SPAC falls below the Publicly Held Shares, ...

Read More

Foreign Investments: Multi-jurisdiction Guide

The DLA Piper Global Foreign Direct Investment team just released a 2023 edition of their Multi-jurisdiction Guide for Screening Foreign Investments. The intro to the ...

Read More

Private Equity: SEC Enforcement Action Targets Fund Advisor

Last month, the SEC announced a settled enforcement action against Insight Venture Management LLC alleging that the fund advisor charged excess management fees and ...

Read More

RWI: 2023 Guide to Rep & Warranty Insurance

Woodruff Sawyer recently published its 2023 Guide to Representations & Warranties Insurance, which provides an overview of current market conditions, policy terms ...

Read More

Bye-Bye Blasius: Del. Supreme Court Affirms Chancery Decision on Dilutive Share Issuance

Last week, in Coster v. UIP Companies, (Del.; 6/23), the Delaware Supreme Court affirmed Chancellor McCormick’s earlier decision holding that the company’s board had ...

Read More

Extensive Changes to HSR Premerger Notification Form Proposed

The FTC and DOJ recently announced significant proposed changes to the Hart-Scott-Rodino Premerger Notification and Report Form. As noted in Chair Lina Khan’s ...

Read More

The Stats on the First Season of UPC

Leading up to the 2023 proxy season, there was much debate about how universal proxy would change the game. With a more level playing field and possibly lower costs, ...

Read More

The Latest Analysis of Top 40 Activists

When I hear “top 40,” I can’t help but think of tuning in Sunday mornings to my local radio station that played Casey Kasem’s American Top 40. This is a very ...

Read More

M&A Trends: Focus on Risk Mitigation & Increased Use of Technology

Deloitte just released its 2023 M&A Trends Survey, now in its ninth year. The survey polled 1,400 executives at U.S. companies and PE firms between October 25 and ...

Read More

Antitrust: DOJ Overhauls Approach to Bank Mergers

In a speech delivered earlier this week, DOJ Antitrust chief Jonathan Kanter announced that the DOJ will consider a wider range of potential competitive harms in its ...

Read More

Due Diligence: Top Issues for Tech Sector Deals

A recent Gibson Dunn memo provides an overview of the top tech sector due diligence issues in M&A transactions. This excerpt addresses some of the IP ownership ...

Read More

Private Equity: New ILPA Guidance on Continuation Funds

In recent years, PE fund general partners have increasingly moved certain assets into continuation funds, which allow them to continue to hold the investments while ...

Read More

A Survey of Bylaw Amendments for UPC

For companies that elected to put off considering UPC bylaw amendments and officer exculpation proposals until after this proxy season, White & Case recently ...

Read More

Exxon and Engine No. 1: A Lookback 2 Years Later

In the most high-profile proxy contest of 2021, Engine No. 1 succeeded in electing three directors to ExxonMobil’s board. It seemed like a major shake-up at the time, ...

Read More

Public Right to Access Court Documents

John has blogged about the perils of emails and texts with books and records requests. Over on TheCorporateCounsel.net, Liz recently blogged about the quote that came ...

Read More

Entire Fairness: Del. Supreme Court Upholds Chancery’s Decision in Solar City

In In re Tesla Motors Stockholders Litigation, (Del. 6/23), the Delaware Supreme Court unanimously affirmed former Vice Chancellor Slights’ decision finding that ...

Read More

Survey: Global M&A Risks and Trends in Q1 2023

Norton Rose Fulbright and MergerMarket recently published “Global M&A Trends and Risks 2023,” which reports the results of a survey of 200 of the most senior ...

Read More

M&A Agreements: Seller’s Breach of Capitalization Rep Gives Buyer Right to Walk

While most reps and warranties in an acquisition agreement are subject to materiality or “material adverse effect” qualifiers, not all of them are. Most agreements ...

Read More

Findings from New Shareholder Activism Study

In an HLS blog post, Goldman Sachs presents findings from a recent analysis of activism against Russell 3000 companies with campaigns launched from 2006 to the first ...

Read More

UK Antitrust Scrutiny of Roll-up Acquisitions

As we’ve acknowledged, the FTC isn’t the only agency with an ambitious antitrust agenda — the UK and the EU seem to be on the same page. A recent blog post from ...

Read More

New CFIUS Guidance on Date for Submission of Mandatory Filings

A new FAQ on the CFIUS website reads as follows: How does CFIUS determine the ‘completion date,’ in assessing whether a mandatory filing should be submitted, ...

Read More

Del. Chancery Addresses ‘Substantially All’ Issue in Asset Deal Challenge

Section 271 of the DGCL requires stockholder approval of a sale of “substantially all” the assets of a Delaware corporation. While a lot of ink has been spilled by ...

Read More

Contingent Value Rights: Key Components and Trends

Contingent Value Rights, or CVRs, are the public company analog of an earnout, and like earnouts are a tool for bridging valuation gaps between buyers and sellers. A ...

Read More

Post-Closing Disputes: Beware Derivative Unjust Enrichment Claims

One consequence of the limitations that Delaware courts have imposed on reliance disclaimers in the context of contractual fraud allegations is the potential exposure of ...

Read More

Distressed Deals: UBS’s Credit Suisse Risk Factor Disclosure

As we all know by now, whenever there’s a financial crisis, healthy financial institutions often swoop in — either voluntarily or with some arm-twisting from ...

Read More

Del. Chancery Finds Potential for Control Insufficient to Apply Entire Fairness

VC Glasscock recently issued the seventh memorandum opinion in the litigation involving Oracle’s 2016 acquisition of NetSuite, which John has blogged about here ...

Read More

Bad Facts Make … Fun Opinions?

There’s already been plenty of news coverage of the decision in City of Coral Springs Policy Officers’ Pension Plan v. Dorsey, (Del. Ch.; 5/23). But, for us lawyers, ...

Read More

Buyer Beware: Follow Seller’s Participation Right, or Else!

We recently blogged about the importance of both detailed diligence on a target’s compliance and addressing post-acquisition regulatory issues promptly and properly. ...

Read More

Corwin Cleansing: A No Go for Injunctive Relief Under Unocal

In a recent opinion in In re Edgio, Inc. Stockholders Litigation, (Del. Ch.; 5/23), Vice Chancellor Zurn held that Corwin cleansing can’t apply to claims for ...

Read More

Activists Gain a Second UPC Win

Michael Levin recently shared another UPC development — the second activist success story: An individual investor, Daniel Mangless, owns 2.3% of Zevra Therapeutics ...

Read More

More on the Federal Exemption for M&A Brokers

John blogged earlier this year about the new statutory exemption for M&A Brokers from federal broker-dealer licensing requirements. In case you missed it, a recent ...

Read More

Del. Chancery Addresses Stockholder Covenant Not to Sue

In a recent opinion in New Enterprise Associates 14, L.P. v. Rich, (Del. Ch.; 5/23), Vice Chancellor Laster found a stockholder covenant not to sue for breach of the ...

Read More

M&A Trends: 2023 Edition of Wachtell’s “Takeover Law & Practice”

Wachtell Lipton recently published the 2023 edition of its 235-page “Takeover Law and Practice” publication. It addresses directors’ fiduciary duties in the ...

Read More

R&W Insurance: Becoming a Commodity Product?

Lowenstein Sandler recently issued a report on the state of the RWI claims marketplace and how it has evolved since the firm’s 2020 report on RWI claims experience. ...

Read More

Study: Private Target Deal Terms

SRS Acquiom recently released its annual M&A Deal Terms Study, which reviews the financial and other terms of 2,100 private-target acquisitions valued at more than ...

Read More

Looks Like an Amendment, Reads Like an Amendment, Must be an Amendment

At issue in S’holder Representative Services LLC v. HPI Holdings, LLC, (Del. Ch.; 4/23), was an earnout conditioned on the surviving entity signing a customer ...

Read More

Do Buyers Need to Change Their Approach to Cross Border Due Diligence?

The DOJ has recently commented on rewarding buyers that engage in careful and detailed diligence on a target company’s compliance efforts and address post-acquisition ...

Read More

The Usual Takeover Defenses Were Less Common in 2022 IPOs

In its 2023 M&A Report, WilmerHale recently reported on some pretty unusual trends in adoption rates of common takeover defenses by newly public companies in 2022. ...

Read More

Home Runs: Did Dominion Just Become the Best PE Deal Ever?

Fox’s staggering $787.5 million defamation settlement with Dominion Voting Systems raises all sorts of profound questions about the First Amendment, the role of the ...

Read More

Antitrust: EU Court Says No Free Pass for Non-Reviewed Deals

It appears that global antitrust regulators are singing from the same hymnal when it comes to the potential for post-closing scrutiny of deals that aren’t subject to ...

Read More

Del. Chancery Holds Exclusive Forum Clause Doesn’t Convey Jurisdiction

In a recent letter ruling in D. Jackson Milhollan v. Live Ventures, Inc., (Del. Ch.; 4/24), Vice Chancellor Fioravanti rejected a plaintiff’s efforts to convey ...

Read More

M&A Litigation: Valuation Issues in a Volatile Market

Yesterday, I blogged about how buyers and sellers in private equity deals are addressing valuation gaps. Today, it’s time for the litigators’ perspective. A recent ...

Read More

Private Equity: Managing Valuation Gaps in a Tough Market

The macroeconomic headwinds that dealmakers faced in 2022 have carried over into this year, and the recent unpleasantness in the banking sector threatens to make deal ...

Read More

Activism: Occasional Activists Move to Center Stage

Like a lot of other investors, traditional activist hedge funds had a tough year last year. A recent Morrison Foerster memo says that the sector was down 17% in 2022, ...

Read More

National Security: Outbound Investment Screening Coming Soon

Last year, I blogged about how proposals to implement national security reviews of outbound investments were bouncing around Congress. While specific legislation ...

Read More

Del. Chancery Rejects Seller’s Efforts to Pass Retained Liabilities to Buyer

Buyers and sellers frequently find plenty to fight about post-closing, but it’s unusual to see a seller claim that obligations that were spelled out as being ...

Read More

Recent FTC Closing Statement Says Merger Review’s Not All About Antitrust

For the first time in three years, the FTC issued a closing statement in connection with its HSR review of Amazon’s acquisition of One Medical. A Freshfields blog says ...

Read More

Antitrust: FTC Orders Illumina to ‘Unscramble the Eggs’ on GRAIL Deal

Yesterday, the FTC overturned a prior administrative law judge’s ruling and ordered Illumina to unwind its 2021 acquisition of multi-cancer early detection (MCED) test ...

Read More

Due Diligence: Insurance and Risk Management

Woodruff Sawyer recently published a guide for insurance due diligence on M&A transactions. The publication highlights the importance of insurance and risk ...

Read More

PE Sponsors Turn to Creative Financing Structures

In a recent Private Equity — 2023 Outlook, Wachtell reviews the key themes that drove deal activity in 2022 and expectations for 2023. On the financing side, the ...

Read More

Conducting a Strategic Review Process: Should You Publicly Disclose It?

Boards may face pressure from shareholders to publicly announce that they are considering strategic alternatives, including a sale of the company, but announcement comes ...

Read More

Activism: Thinking Like an Activist Pays Dividends

A recent Stanford report on shareholder activism highlights some of the ways shareholder activism and companies’ responses to it continue to evolve. In recent years, ...

Read More

Mindbody: Target’s CEO & Buyer Liable for $44M in Damages

Last week, in In re Mindbody Stockholder Litigation, (Del. Ch.; 3/23), Chancellor McCormick held that Mindbody’s former CEO and its acquiror were jointly and severally ...

Read More

M&A Litigation: Plaintiffs Have Discovered Section 203 of the DGCL

A recent Davis Polk memo says that the plaintiffs’ bar has discovered Section 203 of the DGCL — the Delaware Takeover Statute — and has recently been asserting ...

Read More

Delaware Dings Another Sale of Business Non-Compete

Last week, in Intertek Testing Systems v. Eastman, (Del. Ch.; 3/23), the Chancery Court struck down yet another sale of business non-compete covenant, and the recent ...

Read More

Tender Offers: SEC Builds Out Tender Offer Rules & Schedules CDIs

Corp Fin recently finished its long-awaited build-out of the Tender Offer Rules and Schedules CDIs by issuing 34 CDIs addressing a wide range of interpretive issues. As ...

Read More

Bridging Valuation Gaps in Life Science Deals Through Spin-Offs & CVRs

Life science targets with clinical or near-clinical products often come with early-stage pipeline assets, the value of which is dependent on the achievement of a ...

Read More

RWI Policies in 2023

A recent Woodruff Sawyer article makes some predictions about the market for rep and warranty insurance in 2023, in light of macro conditions, including the M&A and ...

Read More

Do the Antitrust Agencies Win by Losing?

The FTC and DOJ have been taking an aggressive approach to antitrust enforcement, which has meant a number of high-profile challenges to deals. That approach has met ...

Read More

Del. Supreme Court Cross-Designates 5 Judges to Serve as Vice Chancellors

According to a recent report, the Delaware Chancery Court’s caseload has grown at a compound annual rate of 5% since 2017, with much of the growth coming from cases in ...

Read More

Antitrust: DOJ Sues to Stop JetBlue-Spirit Deal

Yesterday, the Department of Justice announced that it filed a lawsuit seeking to block JetBlue’s proposed acquisition of Spirit Airlines. While the DOJ and Federal ...

Read More

Antitrust: Allocating Antitrust Risk in Merger Agreements

With the FTC and DOJ taking an increasingly aggressive approach to merger review and enforcement, merger agreement terms allocating antitrust risk are becoming an ...

Read More

Fiduciary Duties: Del. Chancery Rejects Claim That CEO Steered Board to Lower Priced Deal

In Teamsters Local v. Martell, (Del. Ch.; 2/23), the Chancery Court dismissed breach of fiduciary duty claims against the former CEO of Core Logic. Those allegations ...

Read More

Private Company Mergers of Equals: A Primer for Companies, Investors

Public company mergers of equals aren’t uncommon, but since the stock of private companies isn’t liquid, an MOE involving private companies has been a relatively ...

Read More

Divestitures: The Spin-Off Alternative in a Turbulent Market

Companies are likely to see continued investor and activist pressure to divest non-core businesses in order to generate higher multiples for the parent or the divested ...

Read More

Del Chancery Validates Defective Charter Amendments — But SEC Hasn’t Signed Off

A couple of weeks ago, I blogged about how Vice Chancellor Will’s decision in Garfield v. Boxed, (Del. Ch.; 1/23), prompted a number of SPACs to file actions seeking ...

Read More

Strategic Buyers Look to M&A to Improve ESG Profile

When it comes to ESG diligence, my sense was always that ESG considerations could be a deal breaker, but they were rarely a deal driver. In fact, John has blogged here a ...

Read More

Take Private Deals in 2022

A recent Weil going private survey showed that going-private transactions reached a new high in 2022 by volume and value (up 51% from 2021), with over half of the ...

Read More

ICYMI: Masimo Reverses Bylaw Amendments

John previously blogged about Politan’s lawsuit against Masimo Corp. seeking to overturn the bylaw amendments adopted by the company following the effectiveness of the ...

Read More

Cross-Border: Key Trends Driving Global M&A

A recent Cooley blog discusses 10 key trends from the European market that shaped global M&A in 2022 and are expected to continue to impact deals this year. Many of ...

Read More

SPACs Seek Relief for Defective de-SPAC Charter Amendments

Last month, I blogged about the Chancery Court’s decision in Garfield v. Boxed, (Del. Ch.; 1/23), which indicated that a separate class vote was required to authorize ...

Read More

Antitrust: The FTC Wants More Time for Merger Reviews

In a statement accompanying the FTC’s annual report to Congress on the HSR Act, the Democratic commissioners again called for legislation extending the time periods ...

Read More

M&A Brokers: New Federal Exemption

If you haven’t encountered the problem of an unlicensed “business broker” who expects to be paid for their role in bringing a buyer and seller together, you ...

Read More

SPACs: Closing the Book on a Terrible Year

White & Case recently published its 2022 US de-SPAC & SPAC Data & Statistics Roundup, and the numbers are every bit as ugly as you think they are. Here are ...

Read More

M&A Agreements: Making Sure Clients Understand Them is a Big Part of the Job

Andrew Abramowitz recently blogged about a really critical part of the deal process that lawyers overlook at their peril — making sure that clients understand the ...

Read More

Controllers: MFW Isn’t Just for Squeeze-Outs

Debevoise recently published the latest edition of its Special Committee Report, which surveys transactions announced during the period from July through December 2022 ...

Read More

Activism: Implications of Interlocking Directorate Enforcement

A recent Cleary memo discusses the outlook for shareholder activism in 2023. In addition to highlighting the potential implications of universal proxy, the growth of ...

Read More

Annual Survey of Delaware Judicial Decisions

Over on the Delaware Corporate & Commercial Litigation Blog, Francis Pileggi and Sean Brennecke have posted a review of last year’s key Delaware corporate and ...

Read More

Antitrust: New HSR Thresholds Announced

Earlier this week, the FTC announced the new thresholds for HSR filings. This excerpt from Fenwick’s memo on the new thresholds has the details: Size of Transaction ...

Read More

Del. Chancery Decision Sheds Light on Statutory Class Voting Requirements

A motion for attorneys’ fees may seem like an odd place to address the provisions of Section 242 of the DGCL that require separate class votes to approve certain ...

Read More

Private Equity Exits: Be Ready for the IPO Window to Open

Last year was a pretty dismal one for IPOs, and I haven’t seen many predictions saying that 2023 will be a banner year for going public either. That being said, the ...

Read More

Del. Chancery Applies MFW to Controller’s Take-Private Despite Higher 3rd Party Offer

Last month, in SMART Local Unions and Councils Pension Fund v. BridgeBio Pharma, (Del. Ch.; 12/22) the Chancery Court dismissed breach of fiduciary duty allegations ...

Read More

Merger Investigations: Expect a Long Slog on Both Sides of the Pond

Dechert recently published its annual “Dechert Antitrust Merger Investigation Timing Tracker” report on the timing of significant merger investigations, and its ...

Read More

Private Equity: Sponsors Have Mixed Expectations for Middle-Market Deals

Katten’s recent “2023 Middle Market Private Equity Report” provides plenty of insights into how PE firms view the challenges and opportunities middle-market deals ...

Read More

Non-Competes: Delaware’s No Walk in the Park When It Comes to Enforceability

In early January, the Vice Chancellor Zurn issued her decision in Ainslie v. Cantor Fitzgerald, (Del. Ch. 1/24), which addressed the limitations on enforceability of ...

Read More

Activism: 2022 Trends & Settlements

Sullivan & Cromwell recently published its annual report on 2022 shareholder activism and activist settlement agreements. The publication addresses a wide range in ...

Read More

Non-Competes: How Broad is the FTC’s Proposed Sale of Business Carveout?

Last week, the FTC issued a proposed rule that would ban the use of non-compete agreements in most settings. However, the FTC does propose to allow them in connection ...

Read More

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

Picking up where she left off with her decision in the Multiplan case almost exactly one year ago, Vice Chancellor Will last week declined to dismiss breach of fiduciary ...

Read More

SPAC Redemptions: IRS Issues Guidance on Application of Buyback Excise Tax

One of the questions raised by the 1% excise tax on stock repurchases by the Inflation Reduction Act was how it would apply to SPAC redemptions. The IRS recently issued ...

Read More

Sandbagging: What About Deals With RWI Policies?

Kramer Levin recently published a memo on “sandbagging” that covers the various contractual approaches parties can take to the issue and the default rules that New ...

Read More

M&A Trends: In 2023, a Good Premium May Not be Enough

A recent blog from Freshfield’s Ethan Klingsberg offers up some predictions on M&A for the upcoming year. One that may come as a surprise to many dealmakers is his ...

Read More

M&A Trends: Last Year Wasn’t Great for ‘Mega Deals’ Either

According to an analysis by Bloomberg Law’s Emily Rouleau, “mega deals” didn’t escape the overall downturn in M&A activity last year: After reaching an ...

Read More

Antitrust: HSR Filing Fees for Big Deals Get a Big Bump Up

A recent White & Case memo reports that the Consolidated Appropriations Act that Congress passed just before Christmas includes some big changes for HSR filing fees. ...

Read More

Small Deals: A Bright Spot in 2023 M&A?

A recent article from Mergers & Acquisitions says that small deals outperformed the overall M&A market in 2022 and are poised to do so again next year. This ...

Read More

SPACs: The Wall Street Journal Says ‘Stick a Fork in ‘Em’

The SPAC industry received an unwelcome present on Christmas Day when the Wall Street Journal announced that the party was officially over: During the boom in ...

Read More

Del. Supreme Court Reverses Chancery’s $700M Bandera Decision

Yesterday, the Delaware Supreme Court issued its decision in Boardwalk Pipeline Partners v. Bandera Master Fund, (Del. 12/22). The Court reversed a 2021 Chancery Court ...

Read More

Universal Proxy: Lessons From the First Proxy Contest

A recent memo from Goodwin’s Sean Donahue takes a look at some of the lessons learned from the first proxy contest conducted after the effective date for the universal ...

Read More

More Bandera: The Concurring Opinion’s Take on Legal Opinions

The Delaware Supreme Court’s majority decision in Bandera focused primarily on the terms of the MLP’s partnership agreement and the appropriate way to interpret ...

Read More

Antitrust: FTC Sues to Block Microsoft/Activision-Blizzard Deal

Yesterday, the FTC voted to file an administrative complaint to block Microsoft’s proposed acquisition of video game titan Activision-Blizzard. According to the ...

Read More

Liability of Third Parties: Tortious Interference v. Aiding & Abetting

Several recent Delaware decisions have addressed the potential liability of third parties for aiding and abetting breaches of fiduciary duties, but in Atlantic NWI v. ...

Read More

Going Private: Controller Ties Not Enough to Blemish Special Committee’s Independence

Prior business dealings between a company’s controlling stockholder and members of a special committee evaluating a transaction with that controller can call into ...

Read More

Universal Proxy: Want the White Proxy Card? Better Amend Your Bylaws!

In our recent podcast, Hunton Andrews Kurth’s Steve Haas discussed bylaw changes that companies should consider in response to the implementation of the universal ...

Read More

Contract Fraud: Dealmakers Still Don’t Get Limits of Disclaimers?

A recent blog from Weil’s Glenn West reviews a pair of Delaware decisions in which non-reliance, exclusive remedy and non-recourse clauses intended to sharply curtail ...

Read More

Bank Deals: It Turns Out That Not All of Them Move Like Glaciers

I worked on a number of bank deals over the years and due to the regulatory approval process, all of them took a lot longer to close than almost all of the other deals I ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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, ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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. ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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 ...

Read More

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

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