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Authored and curated by our team of experienced attorney-editors, Deal Lawyers offers a collection of “timely, accurate and well-researched” resources designed to help corporate attorneys navigate various corporate and securities issues.

  • ArticlesHere are all posts related to articles
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Articles

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

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

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Articles

Due Diligence: Government Contractors

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

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Articles

Distressed Deals: Transactional Risk Insurance

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

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Articles

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

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

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Articles

Fiduciary Duties When Settling with Activists

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

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Articles

Integration Issues: Address Employment Considerations Early

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

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Articles

Purchase Price Adjustment Disputes: Accountants as Experts or Arbitrators?

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

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Articles

More On: SEC Adopts Private Fund Adviser Rules

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

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Articles

Director Interlocks: FTC Targets Non-Corporate Entities

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

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Articles

Private Equity: SEC Adopts Private Fund Adviser Rules

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

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Articles

Antitrust: The Draft Merger Guidelines & Non-US Regulators

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

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Articles

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

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

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Articles

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

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

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Articles

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

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

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News

Damage Exclusions May Also Benefit From Plain English

We lawyers sometimes get in our own way by using terms that we think are well-defined and understood by us and other lawyers — and, most importantly, the courts — ...

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Articles

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

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

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Articles

Drafting M&A Documents Following the 2023 DGCL Amendments

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

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Articles

It’s Here: Outbound Investment Screening

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

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Articles

Cross-Border: Navigating European Labor Issues

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

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Articles

National Security: CFIUS Issues 2022 Annual Report to Congress

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

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Articles

Del. Chancery Addresses Expectation Damages Calculation

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

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Articles

National Security: CFIUS Requiring Mitigation Agreements in Voluntarily Noticed Deals

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

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Articles

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

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

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Articles

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

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

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Articles

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

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

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Articles

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

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

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Articles

Effective Now: EU Foreign Subsidies Regulation

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

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Articles

Trending M&A: Acqui-Hires

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

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Articles

Report: M&A Risks in First Half of 2023

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

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Articles

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

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

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Articles

Activism: Be Prepared!

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

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Articles

Due Diligence: Implications of the SCOTUS Affirmative Action Decision

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

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Articles

Antitrust: DOJ, FTC Issue Draft Merger Guidelines

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

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Articles

Universal Proxy: Where Are We After 1 Year?

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

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Articles

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

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

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News

Antitrust: The FTC Takes Another ‘L’ in a Pre-Closing Challenge

The FTC’s efforts to stop Microsoft’s pending acquisition of Activision/Blizzard can now be added to the agency’s loss column. Last week, a California federal ...

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Articles

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

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

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Articles

Nasdaq’s New De-SPAC FAQ

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

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News

More on ‘Extensive Changes to HSR Premerger Notification Form Proposed’

In late June, I blogged about the significant changes proposed by the FTC and DOJ to the Hart-Scott-Rodino (“HSR”) Premerger Notification and Report Form. For more ...

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Articles

Foreign Investments: Multi-jurisdiction Guide

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

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Articles

Private Equity: SEC Enforcement Action Targets Fund Advisor

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

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Articles

RWI: 2023 Guide to Rep & Warranty Insurance

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

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Articles

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

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

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Articles

Extensive Changes to HSR Premerger Notification Form Proposed

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

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Articles

The Stats on the First Season of UPC

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

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Articles

The Latest Analysis of Top 40 Activists

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

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Articles

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

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

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Articles

Antitrust: DOJ Overhauls Approach to Bank Mergers

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

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Articles

Due Diligence: Top Issues for Tech Sector Deals

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

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Articles

Private Equity: New ILPA Guidance on Continuation Funds

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

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Articles

A Survey of Bylaw Amendments for UPC

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

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Articles

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

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

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Articles

Public Right to Access Court Documents

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

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Articles

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

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

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Articles

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

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

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Articles

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

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

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Articles

Findings from New Shareholder Activism Study

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

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Articles

UK Antitrust Scrutiny of Roll-up Acquisitions

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

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Articles

New CFIUS Guidance on Date for Submission of Mandatory Filings

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

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Articles

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

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

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Articles

Contingent Value Rights: Key Components and Trends

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

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Articles

Post-Closing Disputes: Beware Derivative Unjust Enrichment Claims

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

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Articles

Distressed Deals: UBS’s Credit Suisse Risk Factor Disclosure

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

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Articles

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

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

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Articles

Bad Facts Make … Fun Opinions?

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

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Articles

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

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

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Articles

Corwin Cleansing: A No Go for Injunctive Relief Under Unocal

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

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Articles

Activists Gain a Second UPC Win

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

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Articles

More on the Federal Exemption for M&A Brokers

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

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Articles

Del. Chancery Addresses Stockholder Covenant Not to Sue

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

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Articles

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

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

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Articles

R&W Insurance: Becoming a Commodity Product?

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

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Articles

Study: Private Target Deal Terms

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

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Articles

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

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

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Articles

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

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

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Articles

The Usual Takeover Defenses Were Less Common in 2022 IPOs

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

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Articles

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

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

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Articles

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

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

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Articles

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

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

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Articles

M&A Litigation: Valuation Issues in a Volatile Market

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

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Articles

Private Equity: Managing Valuation Gaps in a Tough Market

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

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Articles

Activism: Occasional Activists Move to Center Stage

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

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Articles

National Security: Outbound Investment Screening Coming Soon

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

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Articles

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

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

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Articles

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

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

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Articles

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

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

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Articles

Due Diligence: Insurance and Risk Management

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

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Articles

PE Sponsors Turn to Creative Financing Structures

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

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Articles

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

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

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Articles

Activism: Thinking Like an Activist Pays Dividends

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

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Articles

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

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

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Articles

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

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

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Articles

Delaware Dings Another Sale of Business Non-Compete

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

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Articles

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

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

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Articles

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

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

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Articles

RWI Policies in 2023

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

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Articles

Do the Antitrust Agencies Win by Losing?

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

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Articles

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

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

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Articles

Antitrust: DOJ Sues to Stop JetBlue-Spirit Deal

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

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Articles

Antitrust: Allocating Antitrust Risk in Merger Agreements

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

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Articles

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

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

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Articles

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

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

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Articles

Divestitures: The Spin-Off Alternative in a Turbulent Market

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

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Articles

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

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

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Articles

Strategic Buyers Look to M&A to Improve ESG Profile

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

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Articles

Take Private Deals in 2022

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

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Articles

ICYMI: Masimo Reverses Bylaw Amendments

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

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Articles

Cross-Border: Key Trends Driving Global M&A

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

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Articles

SPACs Seek Relief for Defective de-SPAC Charter Amendments

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

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Articles

Antitrust: The FTC Wants More Time for Merger Reviews

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

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Articles

M&A Brokers: New Federal Exemption

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

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Articles

SPACs: Closing the Book on a Terrible Year

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

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Articles

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

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

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Articles

Controllers: MFW Isn’t Just for Squeeze-Outs

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

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Articles

Activism: Implications of Interlocking Directorate Enforcement

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

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Articles

Annual Survey of Delaware Judicial Decisions

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

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Articles

Antitrust: New HSR Thresholds Announced

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

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Articles

Del. Chancery Decision Sheds Light on Statutory Class Voting Requirements

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

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Articles

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

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

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Articles

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

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

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Articles

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

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

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Articles

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

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

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Articles

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

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

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Activism: 2022 Trends & Settlements

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

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

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

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

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

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

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

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Sandbagging: What About Deals With RWI Policies?

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

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

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

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

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

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

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

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

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

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

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

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

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

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Universal Proxy: Lessons From the First Proxy Contest

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

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

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

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

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

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Articles

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

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

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

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

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

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

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

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

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Articles

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

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

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Articles

Del. Chancery Says Seller’s Rep Must Release Escrowed Funds

It isn’t often that you see a stockholders’ representative argue that funds held in escrow shouldn’t be released to the seller, but that’s the situation the ...

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Articles

Private Equity: PE Sponsors Down on Take Private Deals

Dechert recently published its 2023 Global Private Equity Outlook Survey, which surveyed 100 senior executives of PE firms with $1 billion or more in assets under ...

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Articles

Venture Capital: Down Round Options

With valuations of many early-stage companies tumbling, some of those companies are staring at the possible need for a “down round” equity financing. Down rounds are ...

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Articles

The Worst Merger Ever? Not Even Close

Last week, the New York Times published an epic account of the decline and fall of the corporate marriage between Time Warner and AT&T under the title “Was this ...

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Articles

Advance Notice Bylaws: Battlelines are Drawn on Amendments Targeting Activists

Activists and their advisors are seeing red over some changes to advance notice bylaws being implemented by companies in response to the universal proxy rules. In a ...

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Articles

The Board’s Role in Managing M&A Regulatory Risk

As regulators in the U.S. and abroad ramp up their scrutiny of potential M&A transactions, a recent Skadden memo addresses the need for directors to take on a bigger ...

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Articles

PE & VC Firms Look to Control Legal Spend

In a down M&A market, it’s not surprising that PE and VC firms would be taking a close look at their legal fees, and a recent survey of 300 in-house lawyers at ...

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Articles

Dispute Over de-SPAC Merger Leads to Bountiful Harvest of Legal Issues

I know that Chancellor McCormick has been absolutely swamped over the last several months dealing with the Twitter litigation, but spare a thought for Vice Chancellor ...

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Articles

M&A Leaks Report: 2021 Deals Leaked More Than in Prior Years

Intralinks recently published its M&A Leaks Report, which analyzes deal leaks over the period from 2009 to 2021, and breaks them down by world region, country and ...

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Articles

Antitrust: FTC Stakes a New Claim to Sweeping Authority

Last week, the FTC issued a policy statement setting forth a sweeping new claim to enforcement authority under Section 5 of the Federal Trade Commission Act. Up until ...

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Articles

Antitrust: Federal Judge Permanently Enjoins Simon & Schuster Deal

On Monday, U.S. District Judge Florence Pan permanently enjoined Penguin Random House’s proposed acquisition of Simon & Schuster. In doing so, Judge Pan found that ...

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Articles

Del. Chancery Invalidates Sale of Business Non-Compete

In Kodiak Building Partners, LLC v. Philip D. Adams, (Del. Ch.; 10/22), the Chancery Court invalidated a non-compete covenant agreed to by a target’s former employee ...

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Articles

Antitrust: European Regulators to Follow US Lead on Private Equity?

Private equity has become one of U.S. antitrust regulators’ prime targets during the Biden administration, and a recent Freshfields blog says that European regulators ...

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Articles

Del. Chancery Says Faulty Projections Provide Basis for Fraud Claim

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

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Articles

Due Diligence: Political Law Compliance

A target’s compliance with laws governing political involvement is an area that doesn’t typically get a lot of attention during M&A due diligence, but a recent ...

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Articles

National Security: Treasury Adopts CFIUS Enforcement & Penalty Guidelines

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

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Articles

Antitrust: Kroger, Albertsons’ ‘Regulatory Matters’ Covenant

Kroger and Albertsons’ announcement of their proposed merger last Friday was followed almost immediately by wailing and gnashing of teeth over the deal’s antitrust ...

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Articles

Private Equity: Is it Becoming a Ponzi Scheme?

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

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Articles

Del. Chancery Addresses 3rd Party Beneficiary Issues in Twitter Stockholder Suit

The Twitter v. Musk litigation continues to churn on through seemingly endless discovery disputes, but there’s at least one related case that has given deal lawyers ...

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Articles

M&A Tax: SPACs & the Buyback Excise Tax

I’ve blogged a couple of times about the potential impact of the tax provisions of the Inflation Reduction Act on M&A transactions. A recent Cooley blog looks ...

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Articles

Drag-Along Rights: ‘To Exercise or Not to Exercise, That is the Question…’

Drag-along rights entitling the lead investor to compel other investors to participate in a sale transaction are a common feature in stockholders’ agreements for ...

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Articles

Going Private: Survey of 2021 Sponsor-Backed Deals

Earlier this year, Weil issued a survey highlighting the key terms of 2021 sponsor-backed, going private deals. The survey covered 23 U.S. sponsor-backed, going private ...

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Articles

Private Equity: ‘Bolt-Ons’ Shine in Turbulent Times

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

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Articles

Busted Deals: What’s the Right Measure of Damages?

Twitter’s battle with Elon Musk has prompted a lot of discussion about the proper remedies for jilted sellers in mergers and acquisitions litigation. A recent article ...

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Articles

Divestitures: Transition Services Agreements

Because a divested business’s infrastructure is often so intertwined with the seller’s other businesses, a divestiture buyer often needs the seller to continue to ...

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National Security: Executive Order Enhances CFIUS Review of Emerging Risks

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

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Articles

M&A Agreements: ‘Hell or High Water’ Clauses

The efforts required to obtain antitrust or other regulatory approvals for a deal are often among the most heavily negotiated aspects of the merger agreement. In some ...

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Articles

Antitrust: Push to Target Director Interlocks Raises Unresolved Issues

Antitrust regulators have made it clear that they intend to take a hard look at potential violations of Section 8 of the Clayton Act, which prohibits director ...

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Articles

Twitter v. Musk: When It Comes to Privilege, ‘It’s Good to be da King!’

Some days it isn’t easy to come up with content for this blog, and today is one of those days. It looks like my choices have come down to either blogging about another ...

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Articles

Key Considerations for Buying a De-SPACed Company

The bursting of the SPAC bubble has left quite a few companies that went public via a de-SPAC looking for an exit. The depressed valuations of these companies might make ...

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Articles

Due Diligence: Artificial Intelligence Transactions

Artificial intelligence is becoming an increasingly important tool for many businesses. But like any emerging technology, the use of AI in a target’s business raises a ...

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Articles

Delaware Chancery Holds Reverse Spin-Off Passes Muster Under MFW

Last week, in In Re Match Group Inc. Derivative Litigation, (Del. Ch.; 9/22), the Chancery Court held that IAC/InterActive’s 2019 reverse spin-off of its Match.com ...

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Articles

Universal Proxy: A Roundup of Recent Commentary

Over the past several weeks, there’s been a lot of interesting commentary on some of the implications of the SEC’s universal proxy rules. Here are some of the ...

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Articles

M&A Tax: New Book Minimum Tax Creates Complications for M&A

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 ...

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Articles

Antitrust: FTC Makes It Easier to Launch M&A Investigations

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

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Articles

Universal Proxy: ISS Weighs In

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 ...

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Articles

Reverse Termination Fees: Analysis of Size Ranges

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 ...

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Articles

SPACs: Are the SEC’s Proposed Rules SPAC Insecticide?

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 ...

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Articles

Delaware Chancery Says Process Isn’t Entirely Perfect, but Deal is Entirely Fair

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’ ...

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Articles

Controllers: Managing Liquidity Conflicts

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 ...

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Antitrust: The FTC’s High Stakes Challenge to Meta’s Virtual Reality Deal

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” ...

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Articles

M&A Privilege: Delaware Chancery Addresses Claim of ‘Common Interest’

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 ...

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Articles

Private Equity: Pubco Valuations Down, Take Privates Up

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 ...

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Articles

National Security: CFIUS Flexes Its New Muscles

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 ...

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Books & Records: ‘Reliable Hearsay’ May Satisfy Delaware’s Proper Purpose Requirement

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 ...

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Articles

Purchase Price Adjustments: The Locked-Box Alternative

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 ...

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Articles

Controllers: Del. Chancery Applies MFW to Dual Class Charter Amendment

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, ...

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Articles

Delaware Supreme Court Refuses to Dismiss Misleading Appraisal Disclosure Claims

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 ...

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Exclusive Forum Bylaws: Recent 9th Circuit Decision Creates Circuit Split

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 ...

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Due Diligence: Government Contractor Compliance

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 ...

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Antitrust: FTC Challenges M&A Non-Compete

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 ...

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Articles

Busted Deals: It Isn’t Just Twitter …

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 ...

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Earnouts: Reducing the Risk of Disputes Over Milestone Payments

“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 ...

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Private Equity: Portfolio Company Debt Buybacks

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 ...

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SPACs: Dealmakers Call Foul on SEC’s ‘Clarification’ of Underwriter Status

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 ...

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Twitter: Musk Makes a Run for the Exit

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 ...

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M&A Activity: An Uptick On the Way?

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 ...

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Earnouts: Delaware Chancery Interprets Undefined ‘Commercial Best Efforts’ Clause

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 ...

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Universal Proxy: Basic Compliance & Advanced Strategy Webinar

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 ...

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Cross-Border: Japan’s M&A Outlook Brightens

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 ...

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Articles

Antitrust: PE Firm & Portfolio Company Can’t Conspire Under Sherman Act

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 ...

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SEC’s SPAC Proposals: Commenters Weigh In

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 ...

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Articles

Will Rising Interest Rates Lead to More Cash & Stock Deals?

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 ...

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Proxy Contests: Deadlocked Board Requires Company Neutrality

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 ...

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Asset Sales: Stockholder Approval Required for Transfer by Insolvent Corporation

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 ...

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Private Equity: Investors Want More ‘Skin in the Game’ From GPs

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 ...

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RWI: General Partner-Led Private Equity Fund Secondaries

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 ...

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Due Diligence: Software License Compliance

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 ...

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Twitter: A Huge Reverse Breakup Fee If Musk Retrades the Deal?

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 ...

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Private Equity: The Resurgence of PIK Loans

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 ...

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Fiduciary Duty: Delaware Chancery Permits Direct ‘Brophy Claim’

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 ...

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D&O Insurance: No Coverage for Pre-Merger Conduct

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 ...

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PE Sponsor’s Desire to Close Out Fund Results in Entire Fairness Review

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

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Antitrust: EU General Court Upholds EC’s Tough Approach to Gun-Jumping

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 ...

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National Security: White Paper on Global FDI & National Security Review Regimes

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 ...

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Fiduciary Duty: Del. Chancery Says Charter Can’t Alter Standard of Review

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 ...

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Elon Musk & Twitter: ‘Forget It, Jake. It’s Chinatown’?

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

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Officer Liability: M&A Board Minutes Put CLO in the Crosshairs

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 ...

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Articles

Antitrust: Heads Up, Private Equity!

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 ...

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Due Diligence: The Value of Entity Management in M&A

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

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Prevention Doctrine: Could Musk Troll His Way Into Big Trouble?

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 ...

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Deal Jumping: JetBlue Goes ‘Hostile-ish’

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. ...

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Proposed SPAC Rules: Are PIPE Investors Potential ‘Underwriters’?

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 ...

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Antitrust: Big Changes to Required HSR Information on the Horizon?

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 ...

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Cross-Border: Overview of UK ‘Schemes of Arrangement’

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 ...

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M&A Trends: 2022 Edition of Wachtell’s ‘Takeover Law and Practice’

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 ...

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Del. Chancery Finds ‘Compelling Justification’ for Dilutive Share Issuance

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 ...

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Proposed SPAC Rules: Implications for Investment Banks

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 ...

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National Security: Review of Outbound Investments?

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 ...

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Tesla/SolarCity: ‘We’ll Meet Again, Don’t Know Where, Don’t Know When …’

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 ...

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Advance Notice Bylaws: Delaware Courts Move Toward Intermediate Scrutiny

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 ...

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Twitter: The Elon Stuff in the Merger Agreement

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 ...

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Twitter: What Will the Merger Agreement Say?

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 ...

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When Do Minority Shareholders Owe Fiduciary Duties?

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 ...

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Spin-Offs: Wachtell Lipton Updates Its Guide

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 ...

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Poison Pills: Twitter Opts for Plain Vanilla

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 ...

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Poison Pills: What to Look for When Twitter Files Its Rights Plan

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 ...

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Due Diligence: Privacy & Cybersecurity Risks

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 ...

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Diversity: Number of Women in M&A on the Rise

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 ...

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Ukraine Crisis: M&A Agreements’ Sanctions Language Gets an Update

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

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Survey: Middle Market Deal Terms

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 ...

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Deal Hacking: Delaware Chancery Addresses Claims Arising Out of Hacker’s Theft of Merger Consideration

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 ...

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SPACs: SEC Rule Proposal Seeks to Level Playing Field with Traditional IPOs

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

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Venture Capital: Board Seats, Who Needs ‘Em?

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 ...

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SPACs: Delaware Looks to Weigh-in Again

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 ...

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SPACs: D&O Implications of Delaware Chancery’s ‘Multiplan’ Decision

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

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Gender Diversity: Impact on M&A Strategies and Outcomes

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 ...

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Antitrust: Heightened Vertical Merger Scrutiny Not Limited to US

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

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Delaware Supreme Court Again Addresses Preliminary Agreements

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 ...

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Due Diligence: Growing GDPR Risk to Fund Sponsors & Corporate Parents

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 ...

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Activism: Is a Wave of ‘SPACtivism’ Coming?

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 ...

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Appraisal: Recent Del. Chancery Decision Opens Door to Arbs?

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 ...

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Reps & Warranties: Del. Chancery Reaffirms That Delaware is “Pro-Sandbagging”

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 ...

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Material Breach Metaphysics: Del. Chancery Addresses MAE Rep Without a Closing Condition

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 ...

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Survey: Prevalence of Takeover Defenses

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 ...

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RWI: Implications of Russia Sanctions

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 ...

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Going Private: Survey of 2020 Sponsor-Backed Deals

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 ...

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Fiduciary Duty: Director’s Abstention Isn’t a Get Out of Jail Free Card

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 ...

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Antitrust: Implications of Recent Vertical Merger Challenges

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 ...

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Advance Notice Bylaws: Del. Chancery Upholds Record Holder Requirement

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

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Lessons for Sellers From the Wordle Deal

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 ...

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Mootness Fees: SDNY Says “No” to M&A Disclosure Litigation Plaintiff

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. ...

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Antitrust: Will “Ticking Fees” Become a Trend?

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 ...

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M&A Agreements: Crypto References Creep In

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

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Aiding and Abetting: Buyer Beware

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 ...

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Appraisal: Chancery Limits Discovery for Lurking Fiduciary Claim

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 ...

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Articles

Financial Reporting: Handbook on Accounting for Business Combinations

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 ...

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Private Equity: SEC Proposes to Overhaul Private Fund Adviser Rules

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 ...

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Appraisal: Chancery Addresses Fair Value Change Between Signing and Closing

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 ...

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Transition Services Agreements: Key Considerations for Buyers and Sellers

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 ...

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SPACs: Former SEC Corp Fin Director Doesn’t Pull Any Punches

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 ...

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Private Equity: The Return of Club Deals?

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 ...

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Antitrust: DOJ’s Antitrust Chief Takes a Hard Line on Remedies

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 ...

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Articles

Private Equity: SEC Proposes Changes to Form PF

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 ...

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Articles

Activism: Are Anti-Activist Pills Useless?

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 ...

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FTC Announces New HSR Thresholds

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 ...

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Articles

Mega Deals: More Common Than You Might Think

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 ...

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Articles

Poking Around the Microsoft-Activision Blizzard Merger Agreement

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

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M&A Agreements: Rethinking Consequential Damages Exclusions

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

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Antitrust: DOJ & FTC Look to Revamp Merger Guidelines

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

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National Security: CFIUS & De-SPAC Transactions

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 ...

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Articles

M&A Agreements: When do Target Stockholders become Buyer Stockholders?

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 ...

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M&A Activism: Sale-Oriented Activism on the Rise?

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 ...

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Private Equity: LPs Say Continuation Funds are a Game Changer

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

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Articles

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

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 ...

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M&A Agreements: Disclosure Schedules Have Their Day in Court

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 ...

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COVID-19 Busted Deals: Ontario Court Awards C$1.24 Billion to Jilted Seller

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 ...

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M&A Agreements: Brief Chancery Opinion Has Plenty to Say to Drafters

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 ...

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Earnouts: Del. Chancery Refuses to Dismiss Fraud & Implied Covenant Claims

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 ...

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Antitrust: FTC & DOJ Eye Changes to Horizontal Merger Guidelines

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

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Articles

Poison Pills: Del. Supreme Court Leaves Many Unanswered Questions

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

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Articles

Deal Hacking: Paying Agent in Cross-Hairs for Hacker’s Theft of Merger Consideration

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 ...

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Articles

SPAC Regulation: “A Hard Rain’s A-Gonna Fall”

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 ...

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Articles

SPAC M&A Litigation: Recent Filings Highlight Alleged Process Failures

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 ...

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Articles

Effective Time: When Do Target Stockholders Stop Being Stockholders?

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 ...

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Articles

Letters of Intent: NC Business Court Provides Another Cautionary Tale

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 ...

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Articles

Blank Check Reverse Mergers: The SEC Responds to the Del. Chancery

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 ...

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Articles

M&A Tax: Build Back Better Act May Increase Tax on Private Company Sales

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 ...

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Articles

COVID-19: Will Omicron Throw a Monkey Wrench into Pending Deals?

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 ...

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Articles

M&A Activism: Assessing the State of Play

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 ...

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Articles

Legal Opinions: Recent Chancery Decision Provides Guidance

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 ...

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Start-Ups: Allocating Founders’ Shares

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 ...

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Articles

Earnouts: An Overview

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 ...

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Delaware Chancery Provides Guidance on Legal Dividend Issues

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 ...

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Antitrust: Where’s the Enforcement Surge?

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 ...

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Articles

M&A Agreements: What Will Next Year’s Deal Agreements Look Like?

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 ...

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Articles

National Security: UK’s National Security and Investment Act

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 ...

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National Security: CFIUS and The Food Sector

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

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Articles

The Rise of Hipster Antitrust: DOJ Brings Monopsony Case

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? ...

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Articles

Dissecting Fraud Carve-Outs

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 ...

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Injunctive Relief: Delaware Chancery Again Refuses to Enjoin a Merger

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 ...

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Successor Liability: Federal Common Law

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 ...

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Articles

Antitrust: New Tool Helps You Not Sound Like a Supervillain

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 ...

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Articles

SPACs: Fitting Square Pegs into Corporate Law’s Round Holes

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 ...

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Activism: Third Quarter Highlights

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

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Antitrust: FTC Reinstates Prior Approval Policy

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 ...

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No Deal: Private Equity Firm Changes Its Vocabulary

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 ...

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Middle Market M&A: Strategic vs. PE Valuations

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 ...

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Usury: Toxic Converts Prove Toxic to Lender

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 ...

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Proxy Contests: Del. Chancery Upholds Enforcement of Advance Notice Bylaw

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 ...

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M&A Agreements: Interpreting Termination Provisions

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 ...

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Tax Considerations: The M&A Implications of Pending Tax Proposals

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 ...

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Special Committees: “Bad Faith” Claims Gain a Foothold in Delaware

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 ...

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Due Diligence: Quality of Earnings

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 ...

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Special Committees: Income Dependence and Admiration for Controller Preclude Independence

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 ...

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Pending M&A Transactions: Signing a Deal is the Easy Part

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 ...

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Private Equity: Is IRR a Misleading Metric?

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 ...

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M&A Litigation: Contractual Fraud Marches On

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. ...

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Activism: What Industries Are in the Cross-Hairs?

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

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Fraud on the Board: Wait, I’m the Victim Here. . .

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 ...

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Preferred Stock: Del. Chancery Holds No Breach of Mandatory Redemption Provision

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 ...

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Snapshot of Public Company Deal Terms

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 ...

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Antitrust Merger Review: There’s a New Sheriff in Town

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 ...

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Controllers: Del. Supreme Court Holds Dilution Claims Are Derivative

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 ...

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Del. Chancery Addresses Duties of Shareholders’ Reps

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 ...

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Antitrust: FTC Rescinds Vertical Merger Guidelines

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 ...

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SPAC Valuations: Propelled by Plenty of Hot Air?

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 ...

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Investment Bankers: Overview of Engagement Letter Provisions

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 ...

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Contract Interpretation: Timing of Affiliate Status

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, ...

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Appraisal: Del. Supreme Court Okays Contractual Waiver of Appraisal Rights

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 ...

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Articles

Welcome to SPACtivism!

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 ...

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Fraud on the Board: What Is It?

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 ...

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SPAC IPOs Implode in Q2

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 ...

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Earnouts: Del. Chancery Says “Commercially Reasonable Efforts” Must be Persistent

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

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Articles

Merger Agreement Breach Supports NC Deceptive Trade Practices Claim

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 ...

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Antitrust Risks: Dealing with the New Environment

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 ...

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Articles

Do All Cash Deals Automatically Trigger Revlon?

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 ...

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Target’s Termination of Deal Results in Loss of Breach and Fraud Claims

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. ...

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Delaware Law: The Bedrock M&A Cases

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, ...

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Antitrust: FTC Withdraws HSR Guidance on Debt Repayment

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 ...

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SPAC Litigation: 49 Firms Say SPACs Aren’t Investment Companies

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 ...

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PSTH Lawsuit: SPACs, SPARCs, Profs & Fig Leaves

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

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Articles

Revlon: No Change in Control In 58% Stock Deal

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 ...

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Controllers: No MFW For Expiring Procedural Commitments

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 ...

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D&O Insurance: Carriers Get a “W” in Appraisal Case

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 ...

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R&W Insurance: Current Market Trends

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 ...

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Poison Pills: 2020-2021 Pill Adoptions

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 ...

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MAE Clauses: Drafting Lessons From Bardy Diagnostics v. Hill-Rom

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 ...

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PSTH Lawsuit: “SPACmageddon” or Something Less?

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 ...

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Non-Assignment Clauses: What Assignments Don’t They Prohibit?

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 ...

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Contract Fraud: Negotiated Limitations on Liability Had “Too Much Dynamite”

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 ...

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Non-Signatories Bound By Merger Agreement’s Indemnification Provisions

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 ...

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R&W Insurance: Coverage for Non-Standard Deals? Good Luck!

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’ ...

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COVID-19 M&A Litigation: Lessons Learned

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 ...

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Shareholders Agreements: De-SPACs v. IPOs

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 ...

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Due Diligence: ESG Considerations

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 ...

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M&A Agreements: “Effect of Termination” Provisions

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

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HSR Filings: The FTC’s Overwhelmed and You’re on Your Own

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, ...

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National Security: 2020 CFIUS Annual Report

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 ...

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Cybersecurity: Strategic and Tactical Considerations in M&A

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 ...

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Antitrust Merger Investigations: 2021’s First Half Scorecard

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 ...

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Controllers: No Shortcuts to MFW Cleansing

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 ...

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Proxy Fights: Was Exxon Mobil a Bellwether?

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 ...

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Is Appraisal Arbitrage Poised for a Comeback?

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 ...

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Activism: 2021 First Half Highlights

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 ...

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SPACs: Alternatives to PIPE Financing for De-SPACs

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 ...

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More on “Rights Offerings: Cleansing? Maybe Not…”

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 ...

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Activism: Bumpitrage in the UK

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 ...

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M&A Process: The Role of Social Media

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 ...

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Appraisal Rights: What About LLCs?

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 ...

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Choice of Law Clauses: Boilerplate They Ain’t!

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 ...

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Is the Intro to a Merger Agreement a “Resolution”? It is in Nevada!

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 ...

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Antitrust: President’s Executive Order Puts the Squeeze on M&A

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

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Busted Deals: “Tyson Right Uppercut” to Seller’s Business Isn’t a MAE

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 ...

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Antitrust: Interlocking Director Issues

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

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Del. Chancery Denies Injunction for Alleged Violations of DGCL Section 203

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 ...

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Rights Offerings: Cleansing? Maybe Not…

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 ...

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Take-Privates: An Overview of the Process

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 ...

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SPAC M&A Litigation: The Specter of Section 11

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 ...

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Delaware Supreme Court Says Entire Fairness Sometimes Isn’t Enough

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 ...

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Private Equity: LPs Say ESG is a Top Investment Priority

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 ...

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Dealing With M&A Compensation Issues

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 ...

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Del. Chancery Says 35% Stockholder Not a Controller

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 ...

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CFIUS: Treasury Team Hunts For Non-Notified Transactions

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 ...

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Loyalty Claim Against Special Committee Chair Survives Motion to Dismiss

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 ...

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Fraud: Integration Clause Bars Claims Based on “Future Promises”

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 ...

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M&A Agreements: Don’t Play Hide the Ball With Forum Selection Clauses

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 ...

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Antitrust: VCs Stressing Out Over Federal Antitrust Legislative Initiatives

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

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Controllers: Receipt of Unique Benefits Results In Entire Fairness Review

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 ...

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Articles

SPACs: The UK Opens Its Doors to Listings

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 ...

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National Security: CFIUS’s Cybersecurity Compliance Expectations

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 ...

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The Modern Deal Economy: How Did We Get Here?

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 ...

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Earnouts: Buyer’s Discretionary Authority Doesn’t Bar Claim

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 ...

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Letters of Intent: Traps for the Unwary

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 ...

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Spin Offs: Wachtell Lipton Updates Its Guide

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 ...

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National Security: The Growing Importance of Export Controls

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 ...

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Articles

M&A Projections: Third Circuit Dismisses Claims Based on Downside Case Disclosure

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 ...

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Appraisal Statute Doesn’t Bar Extraordinary Dividend as Part of Merger

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 ...

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Antitrust: 7-Eleven Acquires Speedway Despite FTC Objections

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 ...

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Appraisal: Delaware Chancery Permits Reverse Veil Piercing

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 ...

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Articles

Stockholder Votes: Sometimes, Not to Decide is to Decide

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 ...

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Post-Closing Disputes: New Del. Case Addresses Purchase Price Adjustments

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 ...

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Controllers: Del. Chancery Rejects Challenge to Committee Independence

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 ...

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Articles

Appraisal: Fair Value Adjusted for Post-Signing Developments

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 ...

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Articles

Divestment: Breaking the Cycle of Inaction

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 ...

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Crypto M&A: The Central Role of Money Transfer Regulations

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, ...

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Articles

Exclusive Forum Bylaws: Farewell to Section 14(a) Claims?

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 ...

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Articles

Study: Private Target Deal Terms

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 ...

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Articles

Earnouts: Del. Chancery Refuses to Re-Write Contract Terms

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 ...

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Articles

National Security: The U.K. Adopts a New Review Regime

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 ...

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Articles

Disclosure: Board’s Delegation of Proxy to Management Allegedly “Bad Faith”

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 ...

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Articles

A New Approach to MACs

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, ...

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Nevada Supreme Court Applies BJR to Controlling Shareholder Transaction

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

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Specific Performance: Del. Chancery Orders PE Buyer to Close

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 ...

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M&A: A Comprehensive Outline of Delaware Issues

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

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Fraudulent Transfers: 2d Circuit’s Revival of Bankruptcy Safe Harbor Stands

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 ...

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Articles

De-SPACs: Fiduciary Duties

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 ...

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The Ties That Bind: Limits On A CEO’s Authority

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” ...

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Post-Closing: Dealing with “People Challenges” in M&A

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 ...

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Controllers: Fiduciary Duties Don’t Include Martyrdom

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 ...

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Articles

Activism: First Quarter Highlights

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 ...

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Articles

SPACs: Skepticism About Captive Insurance as a D&O Alternative

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 ...

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Articles

Private Equity: Global Deal Value Soars in Q1

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. ...

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Articles

Letters of Intent: NC Court Says Disclaimers Preclude Fraud Claims

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 – ...

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Articles

SPACs: Here Come the Lawsuits. . .

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 ...

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Articles

Special Committees: 2020 Delaware Developments

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 ...

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Articles

Disclosure: Mass. Court Says No Duty to Disclose Preliminary Merger Negotiations

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 ...

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Articles

SPACs: Less Risky Than IPOs? Corp Fin Chief Says “Don’t Bet On It”

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 ...

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Articles

Antitrust: Amended EC Policy Allows Review of Non-Reportable “Killer Acquisitions”

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 ...

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Articles

Transactional Insurance: The Year in Review

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 ...

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Antitrust: FTC Challenges Vertical Merger

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 ...

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Articles

Comparability Provisions: Treatment of Employees in M&A Agreements

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

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M&A Agreements: Del. Chancery Rejects Seller’s Attempt to Reclaim Pre-Closing Cash

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 ...

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Articles

Exclusive Forum Bylaws: Stabilizing D&O Rates?

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 ...

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Articles

Private Equity: SPACs Provide Competition for Tech Deals

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 ...

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Articles

Antitrust: Make Sure the HSR Clock Has Started Running

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

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Officer & Controller Liability: Vice Chancellor Laster Speaks!

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 ...

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SPACs: The Captive Insurance Alternative

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

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Books & Records: Can Inspection Rights be Waived in Delaware?

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 ...

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Antitrust: NY Legislation Would Mandate Pre-Merger Notification

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 ...

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Officer Liability: Del. Chancery Again Endorses “Fraud on the Board” Claim

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 ...

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Articles

Intellectual Property Issues in M&A: A Deep Dive

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

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Private Equity: Navigating Portfolio Company Conflicts

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

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D&O Insurance: “Forget It Jake, It’s Delaware. . .”

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 ...

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Del. Supreme Court Says Parties May Limit Liability for Non-Intentional Fraud

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

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SPAC Mergers: A Guide to SEC Filing & Disclosure Requirements

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 ...

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Articles

Poison Pills: A Recap of 2020 Pill Adoptions & Terms

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 ...

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Controllers: What’s The Standard of Review for a Sale to a Third Party?

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 ...

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SPACs: SEC Guidance a Road Map for De-SPAC Plaintiffs?

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 ...

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Selling the Company: A Practical Guide for the Sale Process

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

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Del Chancery Strikes Down “Anti-Activist” Poison Pill

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 ...

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Private Equity: Will a Gensler-Led SEC “Send Them A Message”?

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 ...

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SPACs: The More Costly Route to the Public Market?

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

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Director Liability: Directors’ Duties are Fiduciary, Not Contractual

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

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Antitrust: Agencies Increase Use of Sherman Act in M&A Enforcement

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

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Rep & Warranty Insurance: Are Higher Premiums Here to Stay?

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

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Articles

Earnouts: Still Popular – And Still Problematic

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

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Delaware Choice of Law Provision Doesn’t Bar California Statutory Claim

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

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Appraisal: Key Takeaways From 2020 Delaware Decisions

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

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Aiding & Abetting: Del. Chancery Allows Claim Against Buyer

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

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Post-Closing: Purchase Price Adjustments & Indemnification Claims Study

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

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Appraisal: Del. Supreme Court Affirms DCF-Based Fair Value Determination

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

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National Security: CFIUS Targets China-backed Venture Deals

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

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Derivative Claims: Del. Supreme Court Addresses Post-Closing Standing

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

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Antitrust: Agencies Suspend HSR Early Terminations Pending Process Review

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

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Articles

ESG: Have We Reached an Inflection Point for M&A?

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

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SPACs: Is the PSLRA Safe Harbor Driving the Boom?

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

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Articles

FTC Announces New HSR Thresholds

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

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Officer Liability: Del. Court Refuses to Dismiss Fraud Claims Against LLC Managers

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

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Articles

Post Closing Disputes: The Locked Box Alternative

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

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Shareholder Activism: 2020 In Review

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

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

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

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

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

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

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

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When M&A Goes Wrong: Lessons From Divestitures

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

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

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

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Antitrust: How Aggressive Will the Biden FTC Be?

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

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

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

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

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

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Officer Liability: Recent Trends

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

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

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

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SPACs: Corp Fin Issues Disclosure Guidance for De-SPACs

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

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

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

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Cross-Border: International Issues in Domestic Deals

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

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

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

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More Lessons From the Stream TV Networks Decision

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

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

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

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

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

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Doing Deals Remotely: Long-Form Memos as Collaboration Tools

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

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Articles

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

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

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Disclosure Claims: Another CEO Ends Up Holding the Bag

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

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Hostile Takeovers: On the Comeback Trail?

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

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

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

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

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

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

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

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

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

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Activism: Perspectives on Proxy Fights

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

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Post-Closing Adjustments: COVID-19 Issues

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

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

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

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

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

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

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

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

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

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

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

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Articles

Disclosure: When Are Merger Negotiations MNPI?

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

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Articles

Activism: Preparing for What 2021 May Bring

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

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Articles

Simon/Taubman: Revised Deal Reduces Conditionality Along with Price

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

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Articles

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

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

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Articles

Appraisal: Sound Process Leads to Deal Price Fair Value Determination

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

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Articles

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

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

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Articles

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

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

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Articles

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

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

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Articles

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

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

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Articles

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

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

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Articles

Activism: Third Quarter Highlights

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

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Articles

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

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

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Articles

Antitrust: How Will the Election Influence Merger Enforcement?

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

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Articles

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

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

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Articles

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

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

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Articles

M&A Agreements: Who Holds the Pen?

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

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Articles

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

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

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Articles

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

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

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Articles

SPACs: Sponsor Liability Risks

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

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Articles

Acquired Company Financials: A Quick Reference

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

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Articles

National Security: An Overview of the New CFIUS Regime

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

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Articles

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

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

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Articles

Beyond TikTok: Dealing with the Politicization of M&A

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

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Articles

Revlon: Chancery Refuses to Dismiss “Paradigmatic” Complaint

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

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Articles

Private Equity: Loyalty Issues for Designated Directors

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

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Articles

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

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

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Articles

Antitrust: Mitigating the Risk of Non-Competes

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

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Articles

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

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

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Articles

Activism & Hostile Bids: The Vacation’s Over

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

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Articles

M&A Leaks Report: Dealmakers More Chatty in 2019

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

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Articles

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

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

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Articles

Better Days Ahead for Dealmaking?

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

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Articles

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

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

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Articles

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

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

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Articles

National Security: Treasury Tweaks CFIUS Mandatory Declaration Rules

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

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Articles

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

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

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Articles

Antitrust: Proposed HSR Change Could Make Activism Stealthier

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

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Articles

Busted Deals: Simon Accuses Taubman of Additional Breach

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

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Articles

Exclusive Forum Bylaws: You Win Some, You Lose Some

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

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Articles

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

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

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Articles

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

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

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Articles

SPACs: What’s Behind the Craze?

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

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Articles

Fiduciary Duties: Exculpatory Charter Provision Saves the Day

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

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Articles

Breakup at Tiffany’s? LVMH Looks for an Exit

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

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Articles

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

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

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Articles

Antitrust: Overview of Q2 M&A Regulatory Actions

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

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Articles

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

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

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Articles

Antitrust: DOJ Issues Merger Remedies Manual

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

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Articles

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

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

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Articles

Venture Capital: Silicon Valley Venture Capital Survey

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

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Articles

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

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

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Articles

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

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

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Articles

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

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

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Articles

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

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

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Articles

Fiduciary Duties: Post-Announcement Renegotiation of Deal Terms

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

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Articles

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

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

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Articles

National Security: Post-Closing CFIUS Review Unwinds TikTok Deal

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

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Articles

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

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

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Articles

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

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

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Articles

R&W Insurance: Do Insurers Pay Claims?

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

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Articles

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

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

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Articles

SPACs: Does Ackman’s SPAC Change the Game?

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

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Articles

National Security: Treasury Publishes 2019 CFIUS Annual Report

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

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Articles

Del. Chancery Dismisses Challenge to M&A Retention Comp

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

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Articles

Private Equity: Portfolio Company Borrowers Driving COVID-19 Defaults

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

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Articles

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

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

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Articles

Private Equity: COVID-19’s Global Impact

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

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Articles

Books & Records: The Chancery Court Provides a Primer

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

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Articles

Antitakeover: Evaluating Your Defenses

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

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Articles

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

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

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Articles

SPAC Acquisitions: Key Considerations for Targets

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

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Articles

Del. Chancery Sustains Aiding & Abetting Claim Against Financial Advisor

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

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Articles

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

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

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Articles

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

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

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Articles

Antitrust: FTC Unhappy With Slow Divestitures

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

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Articles

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

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

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Articles

Controllers: Minority Shareholder Negotiations Result in Loss of MFW

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

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Articles

Antitrust: Merger Review During the COVID-19 Crisis

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

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Articles

Private Equity: Sponsors Preparing for Exit Window to Open

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

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Articles

Reasons for Optimism? CFOs Bullish on M&A Prospects

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

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Articles

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

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

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Articles

Activism: Investors Are Willing to Listen to the Pitch

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

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Webcasts

M&A Litigation in the Covid-19 Era

Like every other aspect of business life, the Covid-19 crisis has had a profound impact on mergers and acquisitions. High stakes battles over attempted deal terminations ...

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Webcasts

Middle Market M&A: The Latest Developments

The middle market is where most of the deals are, and the issues that arise are always changing, and often quite different from larger company M&A. This program will ...

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Articles

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

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

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Articles

Earnouts: Structuring Considerations for the COVID-19 Environment

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

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Articles

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

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

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Articles

Antitrust: FTC & DOJ Issue Vertical Merger Guidelines

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

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Articles

Conflicts of Interest: Undisclosed Comp Discussions Rebut BJR

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

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Articles

M&A Disclosure Claims: Somebody Actually Litigated One!

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

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Articles

National Security: CFIUS Prepares to Drop the Hammer

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

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Articles

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

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

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Articles

Controllers: Dell Redemption Flunks MFW

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

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Articles

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

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

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Articles

Shareholder Representative Appointment Provision Limits Discovery

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

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Articles

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

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

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Articles

Will CARES Act NOL Breaks Spur M&A Activity?

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

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Articles

Take Privates: An Overview of the Process

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

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Articles

Beyond Earnouts: Bridging Valuation Gaps in the Current Environment

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

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Articles

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

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

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Articles

Revisiting Earnouts During the COVID-19 Era

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

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Articles

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

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

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Articles

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

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

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Articles

Del. Chancery Dismisses Claims Based on Anti-Reliance Language

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

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Articles

Due Diligence: Dealing with PPP Borrowers

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

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Articles

Poison Pills: Overview of NOL Rights Plans

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

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Articles

M&A Financials: Working with the New Rules

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

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Articles

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

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

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Articles

M&A Market: What Deals are Getting Done?

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

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Articles

National Security: Changes Proposed to CFIUS Mandatory Declaration Rules

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

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Articles

Distressed Deals: Bankruptcy Court Ruling Tarnishes “Golden Shares”

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

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Articles

SEC Adopts Overhaul of M&A Financial Info

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

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Articles

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

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

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Articles

Antitrust: FTC Provides Guidance on HSR Filing Fees

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

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Articles

Due Diligence: Getting Your Arms Around COVID-19 Issues

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

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Articles

Busted Deals: Lessons From COVID-19 Litigation

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

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Articles

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

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

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Articles

Distressed M&A: Dealmaking In The New Normal

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

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Articles

National Security: Governments Heighten Scrutiny of FDI

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

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Articles

Entire Fairness: Chancery OKs Strategy to Fund Controller Preferred Redemption

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

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Articles

Study: Private Target Deal Terms

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

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Articles

Deal Terminations: “Things Fall Apart…”

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

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Articles

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

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

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Articles

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

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

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Articles

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

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

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Articles

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

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

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Articles

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

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

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Articles

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

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

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Articles

National Security: CFIUS Update

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

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Articles

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

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

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Articles

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

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

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Private Equity: Debt Finance Opportunities for Middle-Market Funds

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

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

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

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Antitrust: FTC Files Post-Deal Challenge to Minority Investment

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

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

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

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Satisfying “Efforts Clauses” in a COVID-19 Environment

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

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

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

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Survey: Middle Market Deal Terms

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

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

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

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Webcasts

Activist Profiles & Playbooks

With more activism than ever, it's important to be able to identify who the activists are - and what makes them tick. Join these experts: Anne Chapman, Managing ...

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

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

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

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

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Rep & Warranty Insurance: Aon Releases Study on Claims Experience

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

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

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

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

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

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Del. Chancery Says No Turning Back After Buyout Notice

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

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Debt Restructurings May Trigger CFIUS Review

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

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Antitrust: HSR Early Terminations Back on the Table

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

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

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

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

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

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Activism: Preparing For The New Environment

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

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Antitrust: More COVID-19 Implications For Merger Review

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

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Articles

Poison Pills: Has Their Time Come Again?

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 ...

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COVID-19: Impact On MAC Language

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 ...

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Cyan Agonistes: Del. Supreme Ct. Upholds Federal Forum Provisions

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 ...

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Articles

Where Are All The Busted Deals?

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 ...

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COVID-19: Delaware Supreme Court Declares Judicial Emergency

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 ...

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HSR: No Early Termination Under Temporary FTC Filing Protocols

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 ...

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Corwin: Delaware Chancery Adds A Pinch Of MFW To The Recipe

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 ...

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Controllers: Minority Blocking Rights May Confer Control Status

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. ...

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National Security: Treasury Proposes CFIUS Filing Fee

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 ...

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Articles

Antitrust: Vague Covenants Lead to “Broken Deal” Lawsuits

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

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What Does a Tight Insurance Market Mean for M&A?

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 ...

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Frenemies: Xerox’s Not Particularly Hostile Bid for HP

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 ...

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MFW: Viable Derivative Claim Impairs Committee Independence

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 ...

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Coronavirus: Will It Be Used As A MAC Trigger?

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. ...

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Letters of Transmittal: What Do They Look Like 5 Years After Cigna v. Audax?

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 ...

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Activism: “More M&A in Activism and More Activism in M&A”

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 ...

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M&A Trends: A Review of the Last Decade

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 ...

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Antitrust: FTC Ratchets Up Scrutiny of M&A Non-Compete & No-Poach Clauses

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 ...

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M&A Activism: Working With Activist-Affiliated Directors

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 ...

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Minority Controllers: Blame Corwin

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 ...

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Webcasts

Cybersecurity Due Diligence in M&A

Cybersecurity and data privacy are increasingly high priority issues in M&A due diligence. Post-signing revelations about data breaches, significant penalties ...

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Articles

Earnouts: Court Rejects Claim Based on Conduct of Business Covenant

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 ...

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ESG: The Next Big Thing in M&A?

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 ...

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Appraisal: Score One for DCF!

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” ...

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Controllers: The Heat is On in Delaware for Minority Shareholders

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

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Due Diligence: Mitigating M&A OFAC Risk

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 ...

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Fiduciary Duties: Del. Chancery Upholds Exercise of “Superior Proposal” Out

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 ...

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Acquisition Agreements: The “Ordinary Course of Business” Covenant

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 ...

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Controllers: Chancery Refuses to Dismiss “Control Group” Claim

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

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FTC Announces New HSR Thresholds

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. ...

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Articles

Appraisal: Chancery Says No Refund on Prepayments

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 ...

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Private Equity: Funds Headed for the Exits More Quickly in 2019

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 ...

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Articles

Public Deals: Guide to Buying a U.S. Public Company

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 ...

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Articles

Cross-Border: Glass Half Full for U.S – Western Europe Deals

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 ...

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Articles

Game On! Xerox Launches a Proxy Fight for Control of HP Board

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 ...

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Articles

Delaware: Review of 2019’s “Unsung Heroes”

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

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Articles

M&A Negotiation: “Let’s Get Everybody in a Room. . . “

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 ...

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Antitrust: DOJ & FTC Issue Draft Vertical Merger Guidelines

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 ...

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National Security: Treasury Adopts Final FIRRMA Regs

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

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Articles

Advance Notice Bylaws: Del. Supreme Court Upholds Strict Bylaw Deadline

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 ...

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Articles

Antitrust: What to Expect in 2020

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 ...

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Auditor Independence: Proposed Rule Changes are Good News for Dealmakers

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 ...

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Chancery Court Refuses to Dismiss Duty of Care Claims Against GC

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 ...

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M&A Disclosure: Fed Ct. Rejects Claims Based on Fairness Opinion Description

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

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Antitrust: High Tech Means High Scrutiny

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

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Termination Fees: An Overview of the “Naked No Vote” Fee

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 ...

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MACs: Even After Akorn, They Still Don’t Come Easy

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 ...

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M&A Indemnity: Does Your Clause Cover Direct Claims?

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 ...

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Buyer Dodges Advancement Claim From Former Seller Officer

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

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Antitakeover: The Shadow Pill Flexes Its Muscle

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 ...

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The Rise of M&A Tax Liability Insurance

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 ...

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Attorney-Client: NY Appellate Court Says Seller Retains Privilege

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 ...

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Antitrust: Regulators Aren’t Just Worried About Your Arch-Rival

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

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Activism: Give Peace a Chance?

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. ...

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Private Equity: 1st Cir. Reverses Sun Capital Decision

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 ...

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Fairness Opinions: Don’t Jump the Gun!

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

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Private Equity: 2020 Limited Partner Survey

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

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Termination Fees: Google & Fitbit’s “No Vote Fee”

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 ...

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Antitrust: FTC Provides Guidance on HSR “Avoidance Devices”

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 ...

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Hostile Deals: Xerox Gives HP a “Bear Hug”

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 ...

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D&O: Common Law & Statutory Claims Aren’t Covered “Securities Claims”

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 ...

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Does Common Institutional Ownership Deter Competing Bids?

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 ...

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Books & Records: Del. Chancery Says Proxy Fight Not a “Proper Purpose”

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 ...

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M&A Outlook: Dealmakers Curb Their Enthusiasm

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 ...

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Antitrust: Regulators Continue Aggressive Merger Review Posture

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 ...

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Forum Selection Clauses: Make Sure They Say What You Mean

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 ...

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Cross-Border: They Do Deals Differently in Europe. . .

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 ...

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Antitrust: FTC Orders 2017 Merger Unwound!

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 ...

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M&A Arbitrage: Do Arbs Influence the Consideration Mix?

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 ...

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M&A Outlook: Execs Optimistic About 2020, Despite Economic Jitters

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 ...

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Purchase Agreements: Beware Undue Reliance on “Catch-Alls”

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

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Webcasts

“M&A in Aerospace, Defense & Government Services”

Each industry has their own unique issues, characteristics & style when it comes to deals. That is particularly true when it comes to deals that implicate the ...

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Mootness Fees: Plaintiffs Tell Court “It’s None of Your Business”

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 ...

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Private Equity: The Long & Winding Road to Winding Down

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 ...

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Earnouts: “Comprehensive & Explicit” Language Wins the Day for Buyer

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 ...

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R&W Insurance: Influence on Deal Terms

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 ...

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M&A Leaks Report: Less Gabby Trend Continued in 2018

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

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Shareholders v. Stakeholders: When A Controller Is In The Mix

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 ...

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Del. Chancery Says Disclosure of Potential Call Right Exercise Raises Contract Issues

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

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Spin-Offs: IPOs With Points for the Degree of Difficulty

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 ...

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Reverse Mergers: Talk About a Corporate Makeover!

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 ...

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