Resources

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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

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 ...

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

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 ...

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

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 ...

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 ...

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 ...

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 ...

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

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 ...

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 ...

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

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Lazard report summarizes shareholder activism during the third quarter of 2020. Here are some of the highlights: – 123 new campaigns have been initiated globally ...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When negotiating an earnout, buyers typically resist efforts to tie their hands when it comes to operating a business post closing. Frequently, the contract expressly ...

I have never minced words when it comes to my personal disdain for letters of intent, which is one reason why I found a Kramer Levin memo on some of the potential ...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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, ...

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

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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

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 ...

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 . ...

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 ...

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 ...

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 ...

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

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 ...

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 ...

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

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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

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 ...

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, ...

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, ...

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 ...

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 ...

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 ...

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 ...

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. ...

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 ...

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 ...

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 ...

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 ...

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 ...

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

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 ...

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 ...

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 ...

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 ...

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

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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

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. ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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

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 ...

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 ...

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 ...

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. ...

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 ...

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 ...

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, ...

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 ...

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. ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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

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 ...

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 ...

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 ...

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

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 ...

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 ...

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. ...

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

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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

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 ...

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

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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, ...

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’ ...

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 ...

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 ...

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 ...

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 ...

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

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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

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 ...

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 ...

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 ...

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 ...

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. ...

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 ...

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. ...

There are a lot of companies that have seen their stock prices fall through the floor as a result of the market’s ongoing meltdown. I know this because so many of them ...

I’ve previously written about the possible use of the COVID-19 pandemic as a MAC trigger and the negotiation of specific carve-outs to MAC clauses addressing the ...

In its 2018 Cyan decision, the SCOTUS unanimously held that class actions alleging claims under the Securities Act of 1933 may be heard in state court. It also held that ...

Given the havoc that COVID-19 has wreaked on the world economy, you might have expected to see a spike in terminations of pending deals during the current month, but ...

It’s hard to find a single aspect of daily life that hasn’t been disrupted by the COVID-19 pandemic. A recent blog from Francis Pileggi reports that this includes ...

On Friday, the FTC announced the implementation of a temporary e-filing system for HSR notifications in response to the COVID-19 pandemic. While this temporary system is ...

It seems fair to say that companies have gotten comfortable with the Corwin cleansing process over the past several years. If you provide your shareholders with full and ...

There’s been a lot of action in Delaware recently about when holders of less than a majority equity stake in an enterprise may be regarded as controlling shareholders. ...

The Foreign Investment Risk Review Modernization Act, or FIRRMA, authorizes CFIUS to establish a filing fee not to exceed the lesser of 1% of the transaction value or ...

Deals involving significant antitrust risk usually contain fairly elaborate covenants governing the parties respective rights and obligations with respect to the HSR ...

Insurance companies have taken it on the chin in recent years when it comes to claims experience, so many businesses find that policy costs and retention are up sharply ...

Xerox finally launched its long-threatened tender offer for HP earlier this week. The tender offer involves a combination of cash and stock, and while it certainly ...

Delaware’s MFW doctrine provides a path to business judgment review for controlling shareholder deals, but it requires the parties to jump through a lot of hoops ...

There are lots of pending deals involving companies whose business prospects have been made substantially less certain due to the ongoing impact of the coronavirus. ...

The Delaware Chancery Court’s 2014 decision in Cigna v. Audax, (Del. Ch.; 11/14) was anticipated to result in big changes to the way dealmakers approached efforts to ...

Schulte Roth recently published its “2020 Shareholder Activism Insight” report, and it had some interesting things to say about M&A activism. After noting that ...

A recent study from SRS Acquiom & Bloomberg Law addresses some of the major trends in private company deal terms over the past decade. Overall, the conclusion is one ...

A recent Sidley memo says that the FTC has been ratcheting up its scrutiny of non-compete & “no-poach” clauses in acquisitions agreements. Here’s the ...

An IR Magazine article by Sullivan & Cromwell’s Melissa Sawyer and Marc Treviño offers some practical guidance on working with an activist-affiliated director’s ...

In a couple of recent blogs, I’ve referenced Professor Ann Lipton’s commentary about how Delaware’s Corwin doctrine has warped its approach to controlling ...

A recent Delaware Superior Court decision provides some insight into how courts interpret contractual limitations on a buyer’s right to manage the post-closing conduct ...

So far, concerns about ESG issues have generally focused on corporate governance and disclosure. But a Wachtell Lipton memo says that ESG considerations may be about to ...

Every now and again, the Delaware Chancery Court issues an appraisal decision that reminds everybody that despite the trend toward a “deal price minus synergies” ...

In my recent article about the Chancery Court’s Essendant decision, I mentioned that plaintiffs have increasingly been asserting “controlling shareholder” claims ...

An international target’s compliance with U.S. sanctions regulations is often one of the more challenging due diligence issues confronting potential buyers. But a ...

In his recent decision in In re Essendant Inc. Stockholder Litigation, (Del. Ch.; 12/19), Vice Chancellor Slights dismissed fiduciary duty claims arising out of a target ...

Any acquisition agreement that doesn’t provide for a simultaneous sign & close is going to have some sort of covenant obligating the seller to conduct business in ...

In Garfield v. BlackRock Mortgage Ventures, (Del. Ch.; 12/19), the Delaware Chancery Court held that a plaintiff challenging a corporate reorganization had adequately ...

So far, winter hasn’t been too bad here in Northeast Ohio, although I don’t think anyone is predicting that the buzzards will make an early return to Hinckley. ...