Resources

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 ...