Resources

Earlier this week, electric vehicle startup Lucid Motors agreed to go public through a $24 billion SPAC merger. The deal is one of the largest SPAC transactions ever, ...

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

An Arnold & Porter memo looks at 2020 antitrust M&A enforcement and what may lie ahead in 2021. This excerpt says that the DOJ & FTC are increasingly turning ...

RWI premiums rose sharply in the second half of 2020. A Woodruff Sawyer blog reviews the changes in the market during 2020, and considers whether the significantly ...

Earnouts have long been a popular tool for bridging valuation gaps, and they’ve been particularly popular in life sciences transactions. A recent Cooley blog reviewing ...

In a recent letter ruling, Vice Chancellor Fioravanti held that a stock purchase agreement’s choice of law provision did not bar the plaintiff from asserting ...

A Morris James blog identifies 7 key takeaways from 2020 Delaware appraisal decisions. The most significant of these relate to the guidance these decisions provide ...

Vice Chancellor Laster’s 115-page opinion in Firefighters’ Pension System v. Presidio, (Del. Ch.; 1/21), covers a lot of ground, but today I’m going to focus on ...

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

It’s fair to say that the last few years haven’t been kind to discounted cash flow analysis when it comes to Delaware appraisal proceedings. Generally, Delaware ...

The WSJ recently reported that CFIUS has beefed up its enforcement team and is taking a hard look at venture investments by China-based entities, including deals that ...

A Dechert memo reviews the Delaware Supreme Court’s recent decision in Morris v. Spectra Energy Partners, (Del. Sup.; 1/21), which adopted the test established by the ...

Yesterday, the FTC & DOJ announced that the agencies “will be reviewing the processes and procedures used to grant early termination to filings made under the ...

Demands from investors and other stakeholders for companies increase to increase their focus on ESG issues have grown exponentially in recent years. While most of the ...

Bloomberg published an interesting opinion piece by Chris Bryant that suggests the SPAC boom may be driven by the fact that, unlike traditional IPOs, sponsors of a ...

The FTC’s announcement of the new HSR thresholds beat Groundhog Day this year. Of course, that means that we at DealLawyers.com are getting a jump on our own harbinger ...

In Surf’s Up Legacy Partners, LLC v. Virgin Fest, LLC, (Del. Super. 1/21), the Delaware Superior Court rejected efforts by a seller’s managers to dismiss the ...

A Grant Thornton report looks at some of the leading causes of post-closing disputes in M&A transactions and provides insight into how to prevent them. The report ...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Lazard report summarizes shareholder activism during the third quarter of 2020. Here are some of the highlights: – Q3 2020 represented the lowest level of ...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Delaware amended its appraisal statute in 2016 to allow companies to prepay appraisal claimants in order to stop interest from accruing, but there is no provision in the ...

According to a PitchBook article, average PE fund hold times for portfolio companies fell to 4.9 years during 2019, the first time that number’s fallen below 5 years ...

Latham recently put together a 20-page guide to acquiring a U.S. public company. It’s targeted at foreign buyers, but it’s a useful and digestible reference guide ...

According to a White & Case “M&A Explorer” article, the dollar value of deal traffic between the U.S. & Western Europe rose by 12% to $312.9 billion ...

I’ve previously discussed Xerox’s efforts to corral HP into a deal.  While Xerox has been understandably reluctant to make a hostile tender offer for HP, yesterday ...

Francis Pileggi recently posted his 15th annual review of key Delaware decisions on his Delaware Corporate & Commercial Litigation Blog.  With some exceptions, ...

If you’ve spent any time at all doing deals, you’ve had the experience where somebody on the deal team insists that all that’s needed to get a deal done is to ...

Vertical mergers involve combinations of companies involved in different stages of the supply chain for a product or service, and it has been nearly 40 years since the ...

On January 13, 2020, the Treasury Department issued final regulations implementing the Foreign Investment Risk Review Modernization Act, or FIRRMA.  Here’s an excerpt ...

On Monday, the Delaware Supreme Court issued its decision in BlackRock Credit Allocation Income Trust v. Saba Capital, (Del; 1/20) in which it reversed an earlier ...

A recent Wachtell Lipton memo reviews U.S. M&A antitrust enforcement during 2019 and gazes into the crystal ball to predict what 2020 may bring.  Here’s an ...

A recent blog from Weil’s Howard Dicker & Lyuba Goltser reviews the potential benefits to PE funds, IPOs & participants in M&A transactions associated with ...

In Morrison v. Berry, (Del.; 12/18), the Delaware Supreme Court reversed an earlier Chancery Court ruling and refused to dismiss a shareholder plaintiff’s claims ...

Over the years, descriptions of fairness opinions in proxy statements have proven to be fertile ground for disclosure litigation.  However, in Hurtado v. Gramery ...

A recent  Sullivan & Cromwell memo highlights the increasing scrutiny that antitrust regulators in the U.S. & abroad are applying to transactions involving ...

Last month, I wrote about the inclusion of a so-called “naked no vote” termination fee in the merger agreement for Google’s pending acquisition of Fitbit. At the ...

It used to be one of corporate law’s great truisms that the Delaware courts had never endorsed an attempt to terminate a merger based on a “Material Adverse ...

Does a clause that purports to indemnify a party for losses sustained due to the other party’s breach of reps, warranties or covenants in the agreement cover direct ...

Most merger agreements involving public company targets include a covenant from the buyer obligating it to cause the survivor to continue to indemnify & advance ...

Remember a few weeks back when I wrote about Xerox’s bear hug letter to HP’s board? In the closing paragraph of that letter, Xerox said that if HP didn’t agree to ...

A recent Woodruff Sawyer report covers a variety of developments on the transactional insurance front.  Here’s an excerpt addressing tax liability insurance, which is ...

We’ve discussed quite a bit about issues surrounding who owns the seller’s attorney-client privilege after the deal closes. The default rule in Delaware is that it ...

Hertz & Avis. . .Coke & Pepsi. . .  Red Sox & Yankees. . . BoJack Horseman & Mr. Peanutbutter. .  . When you think about your competitors, it’s ...

A WSJ article says that some recent arrangements between companies and some heavy-hitters in shareholder activism suggest that there may be a peace offensive underway.  ...

Last month, the 1st Circuit Court of Appeals reversed the 2016 Sun Capital decision, in which a Massachusetts federal court imposed joint & several liability on 2 PE ...

Clients are sometimes very impatient with lawyers’ emphasis on getting the “process” right and frequently aren’t shy about expressing their displeasure about ...

Intralinks’ annual Limited Partner Survey always makes for interesting reading.  This excerpt discusses LPs growing interest in co-investment opportunities: When ...

A simple failure by the seller’s shareholders to approve the deal is an unusual termination fee trigger. In fact, according to the latest ABA Deal Points survey, this ...

Earlier this year, I wrote about the FTC’s $5 million settlement with Canon & Toshiba arising out of their efforts to structure the sale of the Toshiba Medical ...

Xerox turned up the heat on its unlikely bid for HP yesterday when it sent a letter to HP’s board stating its case for a deal & threatening to “take its ...

A few months ago, I blogged about a Delaware Superior Court decision holding that a D&O policy’s duty to defend “securities claims” extended to appraisal ...

In the era of the index fund, common institutional ownership among large public companies is almost ubiquitous. As I’ve previously discussed, this has raised a number ...

Last week, in High River Limited Partnership v. Occidental Petroleum, (Del. Ch.; 11/19), the Chancery Court held that an intent to launch a proxy fight was not a ...

According to Dykema’s “15th Annual M&A Outlook Survey,” dealmakers aren’t quite as upbeat about the prospects for M&A activity during 2020 as they were ...

Dechert’s most recent quarterly review of merger investigations during the current year provides several data points supporting the view that companies are facing a ...

A recent Weil blog reviews the Delaware Chancery Court’s recent bench ruling in Brown Robin Capital v. The Anschutz Corp. (Del. Ch.; 8/19) (transcript) and says that ...

A Winston & Strawn memo reviews 9 ways in which European transactions differ from what buyers are accustomed to in U.S. deals.  This excerpt addresses the European ...

Earlier this month, the FTC unanimously ordered the unwinding of a merger involving two microprocessor prosthetic knee (MPK) companies that was completed in 2017. (h/t ...

I’ve previously discussed merger arbitrage and the impact that it can have on the parties’ stock prices after the announcement of a deal. But a new study says that ...

EY recently published the latest edition of its “Global Capital Confidence Barometer”, which surveyed more than 2,900 executives in 45 countries about a variety of ...

Nearly every acquisition agreement has numerous “belt & suspenders” type provisions – one topic might be the subject of a detailed contractual provision, but ...

Last June, I wrote about an Illinois federal judge’s decision to strike down a “mootness fee” settlement arising out of litigation surrounding the aborted ...

Most limited partners are well aware that PE funds are quick to make capital calls, but much slower to pull the trigger on distributions. A Pitchbook article does a deep ...

Earnouts are often used as a bridge to keep a deal together when the parties differ on valuation.  Since that’s the case, people sometimes tip-toe around all sorts of ...

SRS/Acquiom recently issued its annual “Buy-Side R&W Insurance Deal Terms Study,” which address how the use of buy-side R&W insurance continues to influence ...

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 ...

When I wrote last week about Vice Chancellor Laster’s recent decision in Bandera Master Fund v. Boardwalk Pipeline Partners, I said that the case was loaded with ...

A recent Delaware Chancery Court decision addressed the hazards of navigating a company’s disclosure obligations under the securities laws & its controller’s ...

American gymnast Simone Biles was busy shredding the record book last week on her way to winning her 24th world championship medal.  One of the things that separates ...

I’ve seen some pretty radical corporate makeovers involving public companies over the years. I once represented an environmental remediation company that shed its skin ...

A Skadden memo reviews current trends in shareholder activism, including the growth in M&A activism, the merging of private equity & activism, and the rise of ...

I’ve previously discussed situations in which a fund’s entanglement in its portfolio company’s operations have resulted in some pretty significant liability ...

Controlling shareholders can get a little grabby when it comes to stock issuances – and Delaware courts recognize that, in some circumstances, issuances that increase ...

SEC Chair Jay Clayton is on record as wanting to find ways to expand the ability of retail investors to access private markets – including private equity funds. A ...

I recently wrote about the FTC’s increasing focus on non-competes in its merger review process. Earlier this week, the FTC underscored the point that these ...

Don’t look now, but the Delaware Chancery Court just upheld another Caremark claim in the face of a motion to dismiss. In his 50-page opinion in In re Clovis Oncology ...

Financial buyers used to insist on financing conditions in their acquisition agreements.  They learned long ago that a financing condition usually ramped up their ...

I’ve previously talked about the rise of mootness fees as plaintiffs’ favorite post-Trulia method for extracting a quick buck in federal merger objection strike ...

The IRS is taking heat in a recent report issued by the Treasury’s inspector general for tax administration (TIGTA) over its lack of a strategy to assess compliance ...

It’s pretty common for a buyer to seek some sort of non-competition protection from a seller in connection with an acquisition. But this Goodwin memo points out that ...

Despite the rise of protectionism & other pressures on globalization, cross-border transactions continue to grow, and companies are looking beyond the developed ...

Section 382 of the Internal Revenue Code significantly limits a buyer’s ability to use a target’s pre-acquisition net operating losses to offset future income. ...

The latest edition of Cornerstone Research’s M&A Shareholder Litigation Study says that federal courts remained the preferred venue for M&A objection ...

Earlier this week, the Treasury Department issued proposed regulations that would implement the Foreign Investment Risk Review Modernization Act that President ...

Earlier this month, the DOJ announced that – for the first time – it had agreed to take a challenge to a proposed merger to binding arbitration. Here’s the intro ...

It’s not often that you find a court rolling up its sleeves and digging into the mechanics of no-shop & termination fee clauses, but that’s what Vice Chancellor ...

A HBR article reviews recent research finding that companies that accompany their announcements of M&A transactions with other items of “good news” may not have ...

Many credit facilities include an “accordion” feature that allows a borrower to incrementally increase the amount of its availability under an existing credit ...

I recently blogged about the Chancery Court’s decision in  In re Towers Watson & Co. Stockholder Litigation, (Del. Ch.; 7/19), in which Vice Chancellor McCormick ...

HPE’s associate general counsel Saswat Bohidar recently provided some helpful insights into M&A non-disclosure agreements in an Intralinks blog. Here’s an ...

I really like a recent Cooley blog, because to me it gets to the heart of the problem with using earnouts to bridge the valuation gap. Here is an excerpt:   Often ...

The HSR Act has once again proven that it contains some of the most formidable traps for the unwary in the entire U.S. Code. This time, it was activist hedge fund Third ...

Companies with at least 100 employees & some federal contractors with more than 50 employees have to file EEO-1s containing with certain workforce demographic ...

The final days & hours leading up to a signing or closing usually involve a flurry of ever-changing draft documents that frequently don’t come to rest until the ...

This Morris James blog highlights the Delaware Superior Court’s recent decision in Solera Holdings v. XL Specialty Ins., (Del. Super.; 7/19), which held – among ...

Today’s high M&A valuations mean that buyers often face daunting challenges when it comes to achieving an appropriate return on their investment. A McKinsey report ...

Last year, I discussed Vice Chancellor Glasscock’s letter ruling in Manti Holdings v. Authentix Acquisition, (Del. Ch.; 10/18) upholding a contractual waiver of ...

A Gibson Dunn memo reviews the Chancery Court’s recent transcript ruling in Bay Capital Finance, LLC v. Barnes & Noble Education, Inc., (Del. Ch.; 8/19), which ...

A Jenner & Block memo discusses a recent comment letter submitted to the FTC by 18 state AGs. The letter argues for greater emphasis on labor and workforce issues in ...

In late June, the FTC blogged some guidance about compliance issues arising under Section 8 of the Clayton Act, which prohibits an individual from serving as an officer ...

A seller’s management team generally plays a prominent role in the sale process and in the negotiation of the purchase agreement, despite the fact that their interests ...

A HBR article addresses a new study that confirms what a lot of people already thought – if you’re going to do well in mergers and acquisitions, you need a ...

The indemnification provisions contained in most acquisition agreements require any notice of a potential indemnity claim to lay out its factual basis in reasonable ...

Earlier this week, in Tiger v. Boast Apparel, (Del.; 8/19), the Delaware Supreme Court rejected contentions that a presumption of confidentiality should apply to ...

A PwC blog discusses some of the uncertainties arising out of 2017’s tax reform legislation that continue to create challenges for dealmakers.  Here’s the ...

The WSJ recently reported that the FTC’s ongoing probe of Facebook is focusing on its M&A activities and whether it used acquisitions to eliminate potential ...

A Lazard report summarizes shareholder activism during the first half of 2018. Here are some of the highlights: –  In H1 2019, 107 new campaigns targeted 99 ...

Non-disclosure agreements often distinguish between the parties with whom information may be shared and those parties who are bound by the agreement.  A recent Weil ...

Rising stock prices may be good for your 401(k), but a WSJ article says they’re putting the squeeze on private equity funds: Rising stock valuations are forcing ...

Depending on the circumstances, public companies may have make Form 8-K filings disclosing the terms of an acquisition or divestiture. That filing obligation may arise ...

I think most M&A lawyers would agree that working with experienced people usually results in a much smoother transaction process than what you experience working ...

We’ve previously blogged about the growing importance of cybersecurity due diligence in M&A.  The UK Information Commissioner’s Office brought home some of ...

After the Supreme Court’s decision in Aruba Networks, most lawyers probably thought that Vice Chancellor Laster’s “unaffected market price” approach to ...

A few weeks ago, I blogged about Canon & Toshiba’s unsuccessful efforts to structure an acquisition around HSR’s pre-merger notification requirements. U.S. ...

Check out this Ropes & Gray podcast featuring former Corp Fin Director Keith Higgins addressing the use of Rule 506(c) in the context of PE fundraising. Here’s ...

Okay, maybe the title’s play on the famous line from John Huston’s “Treasure of the Sierra Madre” was click bait, but hey – you clicked, didn’t you?  ...

I confess that I haven’t spent a lot of time on the SEC’s rule proposal on M&A financial statement requirements, but I thought that there might be a few ...

Subscription credit facilities, which provide a debt financing source for PE funds secured by investors’ capital commitments, can be a useful tool to address liquidity ...

It’s been 50 years since Apollo 11, and now it looks like the prospect of space tourism is finally on the horizon.  Personally, I don’t think I’m built for it. ...

Here’s an interesting new study by several prominent scholars – including SEC Commissioner Robert Jackson – that asks the question: does Revlon matter? In ...

Here’s big news on the universal proxy front: yesterday, at EQT Corporation’s annual meeting, a dissident group won control of the company’s board through a ...

Divestitures have long been used to address regulators’ antitrust concerns.  Last month, the FTC’s Bureau of Competition offered up new guidance on what the ...

John Updike’s “Hub Fans Bid Kid Adieu” may be the best piece of sportswriting ever produced by somebody not named Heywood Broun, and it was the first thing that ...

Shareholders’ ability to claim 3rd party beneficiary status under corporate M&A agreements is an area of considerable uncertainty. In Consolidated Edison v. ...

Many advance notice bylaws contain language requiring proponents to submit such additional information about their director nominee as the board may reasonably request ...

I remember my law school property professor’s discussion of the dreaded “rule against perpetuities.”  I didn’t get it, and neither did my classmates.  Finally, ...

A Fox Rothschild blog, reviews the Delaware Supreme Court’s recent decision in Leaf Invenergy Co. v. Invenergy Renewables, LLC, in which it reversed the Chancery ...

Vertical mergers traditionally haven’t been subject to the same regulatory scrutiny as those involving direct competitors.  A recent Jenner & Block memo suggests ...

Buying distressed companies, whether through bankruptcy or otherwise, presents some unique challenges – as well as some unique opportunities.  Wachtell provides a ...

Last year, the SCOTUS created significant uncertainty concerning the application of a commonly used mechanism to protect former shareholders in an LBO from ...

The SEC recently issued a 224-page proposal that would make significant changes to the rules governing the financial information that public companies must provide for ...

According to Dechert’s latest report on antitrust merger investigations, the number of significant U.S. investigations declined almost 40% during the 12 months ...

Family businesses are unique in many ways – and the process by which they find a buyer is often one of them. DLA Piper has some tips for private equity sponsors on how ...

In a recent memo, King & Spalding addresses the role that “self help” remedies played in the successful defense of the DOJ’s challenge to the AT&T/Time ...

In order to for a spin-off to qualify under Section 355 of the Tax Code, the parent and the subsidiary must be engaged in an “active trade or business” immediately ...

A recent Hunton Andrews Kurth memo says that insurance assets are sometimes overlooked during the due diligence process, and that parties often neglect to take the steps ...

Most companies are geared up to buy businesses, not sell them – and that is reflected in most companies’ post-divestiture performance. According to a recent Willis ...

The Delaware Chancery Court recently held that a buyer was not under an obligation to maximize the amount of an earnout potentially payable to the sellers subsequent to ...

State and local tax (SALT) issues are sometimes below dealmakers’ radar screens – but they can pack quite a wallop if they aren’t properly taken into account.  A ...

The early reviews on the Delaware Supreme Court’s Aruba Networks decision are coming in – and they’re mixed.  Academics have a lot of questions about the ...

CFIUS recently announced that it had imposed a $1 million civil monetary penalty against an undisclosed entity for repeatedly breaching a 2016 mitigation agreement. ...

The SRS Acquiom study reviews the financial & other terms of 1,200 private target deals that closed during the period from 2014 through 2018. Here are some of the ...