Investment Banking Today

Life Sciences Earnouts: Legal and Science Teams Must Closely Collaborate

Deal Lawyers

FEBRUARY 20, 2025

A recent Chancery Court decision, Pacira Biosciences, Inc. et al. v. Fortis Advisors LLC (Del. Ch.; 1/25), addressed a very specific life sciences earnout issue — whether the contract tied the earnout payment to a national CMS (Centers for Medicare and Medicaid) reimbursement rate or a locality-adjusted reimbursement rate.

Collaboration

DExit: Delaware General Assembly Responds

Deal Lawyers

FEBRUARY 18, 2025

Yesterday, Senate Bill 21 was introduced in the Delaware Senate Judiciary Committee. Boies Schiller partner Renee Zaytsev describes the bills new protections for boards and controlling shareholders on LinkedIn as follows: 1.

Corporation

Activism: Private Equity Dry Powder to Fuel Activist Strategies & Responses

Deal Lawyers

FEBRUARY 13, 2025

This Paul Weiss memo discusses a variety of factors that may cause activist strategies to evolve over the course of the coming year.

Private Equity

Private Equity Equities Corporation

M&A Readiness Checklist: They’re From the (Canadian) Govt. & They’re Here to Help!

Deal Lawyers

FEBRUARY 13, 2025

I recently stumbled across an M&A readiness checklist put out by Canada’s export credit agency, Export Development Canada.

M&A

M&A Management

M&A Disclosure: 2nd Cir Upholds Claims Targeting Projections & Board’s Opinion on Deal’s Fairness

Deal Lawyers

FEBRUARY 12, 2025

In In re: Shanda Games Limited Securities Litigation, (2d. Cir.; 2/25), the 2d Cir. reversed a district court’s ruling & allowed plaintiffs to proceed with securities law claims premised on allegedly false and misleading projections included in a merger proxy and on the target board’s statement that the merger was “fair” to the minority stockholders.

M&A

M&A Mergers Securities

Due Diligence: AI Expertise Can Give PE Buyers an Edge

Deal Lawyers

FEBRUARY 11, 2025

This FTI Consulting article discusses ways that PE firms can use AI to drive value for their portfolio companies.

Portfolio

Portfolio Consulting

Del. Chancery Refuses to Tag Minority Stockholder with Controller Status

Deal Lawyers

FEBRUARY 10, 2025

The Delaware courts continue to slog their way through a stream of lawsuits in which plaintiffs seek to have the entire fairness standard applied to an M&A transaction by claiming that a substantial minority stockholder should be regarded as a conflicted controller. Late last month, in Turnbull and Acosta v. Klein, et. al., (Del. Ch.

M&A

Del. Supreme Affirms Chancery Decision Applying “Corwin Cleansing” to Price Reduction

Deal Lawyers

FEBRUARY 7, 2025

In a brief, one-page order this week in In re Anaplan, Inc. Stockholders Litigation (Del.

Controller Deja Vu: Del. Chancery Again Finds No Liquidity-Based Conflict

Deal Lawyers

FEBRUARY 6, 2025

Earlier this week in Krevlin v. Ares Corporate Opportunities Fund (Del. Ch.

Funds

Funds Corporation Acquisitions IT

Delaware Departures: Del. Supreme Applies “Business Judgment” to TripAdvisor Reincorporation

Deal Lawyers

FEBRUARY 5, 2025

Almost a year ago, the Delaware Chancery Court issued its decision in Palkon v. Maffei (Del. Ch.; 2/24) — denying a motion to dismiss a lawsuit against TripAdvisor’s board and controlling stockholder. The lawsuit challenged the boards decision to reincorporate from Delaware to Nevada.

Business

Business IT

Post-Closing Adjustments: SRS Acquiom Issues Working Capital PPA Study

Deal Lawyers

JANUARY 31, 2025

SRS Acquiom recently issued its “2025 M&A Working Capital Purchase Price Adjustment Study,” which analyzes purchase price adjustment terms and claims in over1,200 private-target acquisitions. Here are some of the key findings: – PPAs are now virtually ubiquitous, appearing on well over 90% of private deals.

Capital

Capital M&A Acquisitions IT

Spin-Offs: IRS Proposes Comprehensive New Regs

Deal Lawyers

JANUARY 29, 2025

In the past, the tax treatment for divisive reorganizations such as corporate spin-offs has typically been addressed through IRS private letter rulings. However, earlier this month, the IRS issued proposed regulations that would apply to corporate spin-offs.

Corporation

Venture Capital: Side Letters in Emerging & Growth Equity Financings

Deal Lawyers

JANUARY 28, 2025

A recent Troutman Pepper Locke memo discusses some of the key issues associated with side letters entered into between VC investors and the portfolio companies in which they invest.

Finance

Finance Finance Equities Capital

Private M&A: The Return of the “Dual-Track” Approach in Biotech Deals

Deal Lawyers

JANUARY 27, 2025

Cooley recently published its “2024 Life Sciences M&A Year in Review.

M&A

M&A IPO Sale IT

Chamber Seeks to Block New HSR Enforcement

Deal Lawyers

JANUARY 23, 2025

Per this Freshfields blog, the Chamber — along with the Business Roundtable, American Investment Council, and the Longview Chamber of Commerce — filed a lawsuit in early January seeking to enjoin the enforcement of the recently finalized overhaul of the HSR filing regime on the basis that the changes violated the APA.

Investment

Investment Business

Conflicted Controllers: Del. Supreme Affirms Plaintiff Must Show Actual Control

Deal Lawyers

JANUARY 23, 2025

Earlier this week, the Delaware Supreme Court issued its opinion inIn re Oracle Corp. Derivative Litig. (Del. Sup.

Business

Business IT

Director Interlocks: FTC & DOJ Say Board Observers Count and Resignation May Not Cut It

Deal Lawyers

JANUARY 22, 2025

The ongoing litigation between Elon Musk and Sam Altman is not the first place I’d think to turn to get updates on the FTC and DOJ’s latest positions on the application of Section 8 of the Clayton Act.

IT

“Understanding Activism” Podcast: Jonas Kron on ESG Activism

Deal Lawyers

JANUARY 20, 2025

We’ve recently posted another episode of our Understanding Activism with John & J.T. podcast. This time, John and J.T. Ho were joined by Jonas Kron, Chief Advocacy Officer for Trillium Asset Management. John and J.T.

Asset Management

Asset Management Investors Management

Antitrust: FTC Withdraws Competitor Collaboration Guidelines

Deal Lawyers

JANUARY 17, 2025

Last month, the FTC and DOJ announced that they were withdrawing their Antitrust Guidelines for Collaborations Among Competitors.

Collaboration

Antitrust: DOJ Sues KKR for Alleged “Serial Violations” of HSR Act & KKR Fires Back

Deal Lawyers

JANUARY 16, 2025

On Monday, the DOJ announced that it had filed a civil action against KKR, alleging that the firm “evaded antitrust scrutiny for at least 16 separate transactions by failing to comply with the Hart-Scott-Rodino Antitrust Improvements Act of 1976.” Here’s a copy of the DOJ’s 43-page complaint.

IT

“Understanding Activism” Podcast: Jun Frank on Shareholder Proposal and Activism Trends

Deal Lawyers

JANUARY 15, 2025

We recently posted the latestUnderstanding Activism with John & J.T. podcast. This time, J.T. Ho and I were joined by Jun Frank, who serves as Global Head of Compensation & Governance Advisory for ISS-Corporate. We spoke with Jun about trends in shareholder proposals and activism.

Advisory

Advisory Government Corporation

Antitrust: FTC Announces New HSR Filing Thresholds

Deal Lawyers

JANUARY 14, 2025

On Friday, the FTC announced the new HSR filing thresholds for 2025.

Securities

D&O Insurance: Delaware Court Rejects Insurer’s Efforts to Rely on Bump-Up Exclusion

Deal Lawyers

JANUARY 13, 2025

We’ve blogged a few times about litigation surrounding insurers’ efforts to use bump-up exclusions in D&O policies to avoid coverage of amounts paid to settle merger claims. Last week, in Harman International Industries v. Illinois National Insurance, (Del. Supr.

Insurance

Insurance Mergers

Del. Chancery Confirms High Bar to Prove Liquidity-Driven Conflict of a Controller

Deal Lawyers

JANUARY 9, 2025

In June 2022, John blogged about the Delaware Chancerys decision in Manti Holdings v. The Carlyle Group (Del. Ch.; 6/22) to deny a motion to dismiss allegations of liquidity conflicts.

Funds

Funds Investment IT

Proxy Contests: How Often Are Compensation Issues Raised?

Deal Lawyers

JANUARY 8, 2025

This recent alert from Compensation Advisory Partners updates research from 2015 on how often and when activist investors raise issues with executive pay during proxy contests.

Advisory

Advisory Investors

Activism: Mid-cap Companies See Surge

Deal Lawyers

JANUARY 6, 2025

FTI Consulting recently published its latest Activism Vulnerability Report, which provides an overview of the state of play in shareholder activism & ranks the vulnerability of various industries to activist campaigns.

Consulting

Consulting IT

Antitrust: HSR & the “Supervisory Deal Team Lead”

Deal Lawyers

DECEMBER 20, 2024

The recent changes to the HSR form create a new document custodian known as the “Supervisory Deal Team Lead” and this excerpt from the transcript of a recent Ropes & Gray podcast notes that the requirement to produce so-called “4C documents” extends to documents prepared by or for this new custodian: The new rule requires […]

November-December Issue of Deal Lawyers Newsletter

Deal Lawyers

DECEMBER 19, 2024

The November-December issuer of the Deal Lawyers newsletter was just sent to the printer. It is also available now online to members of DealLawyers.com who subscribe to the electronic format.

Electronics

Electronics M&A IT

Non-Competes: When Will Delaware Courts “Blue Pencil” Unenforceable Covenants?

Deal Lawyers

DECEMBER 18, 2024

In Sunder Energy, LLC v. Tyler Jackson, (Del.; 12/24), the Delaware Supreme Court addressed a plaintiff’s argument that the Chancery Court erred in refusing to blue pencil a non-compete agreement that the Court found to be impermissibly overbroad.

Disclosure of Preliminary Merger Negotiations: Are SPACs Different?

Deal Lawyers

DECEMBER 16, 2024

Last week, the SEC announced settled enforcement proceedings against Cantor Fitzgerald for its alleged role in causing two SPACs that it controlled to make misleading statements to investors about the status of their discussions with potential acquisition targets ahead of their initial public offerings (IPOs).

Negotiation

Negotiation Initial Public Offering IPO Mergers

“Baby HSR” Legislation: 50-State Survey

Deal Lawyers

DECEMBER 13, 2024

Winston & Strawn recently released this survey of Baby HSR laws — legislation requiring parties to seek state-level clearance before closing certain transactions.

Duty of Loyalty: Unique Indemnification Rights Considered a Conflict

Deal Lawyers

DECEMBER 12, 2024

In November, John blogged about the Chancery Courts recent decision inGB-SP Holdings LLC et al. v. Walker(Del. Ch.; 11/24). This Fried Frank M&A briefing on the case discusses the facts that caused Vice Chancellor Fioravanti to evaluate the adoption of the forbearance agreement under the entire fairness standard.

M&A

MAE Clauses: English High Court Decision Looks to DE Law

Deal Lawyers

DECEMBER 9, 2024

Glenn Wests latest article for Business Law Today discusses BM Brazil I Fundo de Investimento em Participaes Multistrategia v. Sibanye BM Brazil (Pty.) Ltd — the latest judicial pronouncement by a common-law court on the meaning and effect of an MAE clause.

Business

Remedies: Del. Chancery Imposes Constructive Trust Hitting PE Funds Right in the Wallet

Deal Lawyers

DECEMBER 6, 2024

Earlier this week, the Chancery Court issued its decision in Enhabit, Inc. v. Nautic Partners IX, L.P. (Del. Ch.; 12/24), a case involving breach of fiduciary duty and aiding and abetting claims arising out of a former executive of Encompass Health’s usurpation of corporate acquisition opportunities.

Funds

Funds Corporation Acquisitions IT

Private Equity: Funds Eager to Get In the NFL Game

Deal Lawyers

DECEMBER 5, 2024

Earlier this year, I blogged about the NFL’s decision to open its franchises up to investment by a select group of private equity funds.

Private Equity

Private Equity Equities Funds Investors

Private Equity: Big Players Flex Their Muscles

Deal Lawyers

DECEMBER 4, 2024

According to a recent PitchBook article, mega PE funds have outstripped their middle market peers when it comes to returns for three quarters in a row.

Private Equity

Private Equity Middle Market Equities Funds

Mindbody: Del. Supreme Court Overrules Chancery on Aiding & Abetting

Deal Lawyers

DECEMBER 3, 2024

Yesterday, the Delaware Supreme Court issued its opinion in In re Mindbody, Inc., Stockholder Litigation, (Del.; 12/24), in which it overruled the Chancery Court’s decision holding a buyer liable for aiding and abetting target fiduciaries’ breach of fiduciary duty based upon its role in reviewing the target company’s merger proxy materials.

Mergers

Mergers IT

Antitrust: Is a GAAP Loophole Letting Parties Dodge HSR Filings?

Deal Lawyers

DECEMBER 2, 2024

I know everyone is licking their wounds over the recent changes to the HSR form, so please don’t shoot the messenger on this one! Anyway, a recent paper by business school profs at Stanford & Chicago claims that GAAP is allowing buyers to avoid HSR scrutiny on a large number of potentially anticompetitive deals.

Business

“Understanding Activism” Podcast: Sean Donahue on Unconventional Activist Proxy Solicitations

Deal Lawyers

NOVEMBER 26, 2024

In their latest “Understanding Activism with John & J.T.” podcast, John and J.T. Ho were joined by Sean Donahue.

Advisory

National Security: Rules Expanding CFIUS Enforcement Authority Finalized

Deal Lawyers

NOVEMBER 25, 2024

Last week, the Treasury Department announced that it has finalized rule changes proposed back in April that expand CFIUS’s penalty and enforcement authority. This Gibson Dunn memo notes that the changes were largely adopted as proposed, with the exception of modifying the time frame within which parties are required to respond to mitigation agreement proposals.

Securities

Securities IT

Duty of Loyalty: Lack of Provable Harm to Company Won’t Preclude Damages

Deal Lawyers

NOVEMBER 22, 2024

The Chancery Court recent decision in GB-SP Holdings LLC et al. v. Walker, (Del. Ch.; 11/24) provides a reminder that fiduciaries who breach their duty of loyalty may find themselves facing financial consequences even if damages to the company itself are too speculative to be proven.

Due Diligence: Be Careful What You Upload to Your Data Room

Deal Lawyers

NOVEMBER 21, 2024

Buyers conducting due diligence in an M&A transaction need access to the target’s material agreements.

M&A

M&A Shares Business

“Understanding Activism” Podcast: Dan McDermott on Activist Short Attacks

Deal Lawyers

NOVEMBER 18, 2024

In our latest “Understanding Activism with John & J.T.” podcast, J.T. Ho and I were joined by Dan McDermott.

Practical M&A Treatise: The 2025 Edition is Here!

Deal Lawyers

NOVEMBER 18, 2024

We recently put the finishing touches on the annual update for the Practical M&A Treatise. This 904-page resource covers a broad range of topics, including the mechanics of an M&A transaction, documentation, disclosure, tax, accounting, antitrust, contractual transfer restrictions, successor liability, antitakeover & fiduciary duties of directors and controlling stockholders.

M&A

M&A Accountant

Deal Lawyers

Life Sciences Earnouts: Legal and Science Teams Must Closely Collaborate

DExit: Delaware General Assembly Responds

Trending Sources

Activism: Private Equity Dry Powder to Fuel Activist Strategies & Responses

M&A Readiness Checklist: They’re From the (Canadian) Govt. & They’re Here to Help!

M&A Disclosure: 2nd Cir Upholds Claims Targeting Projections & Board’s Opinion on Deal’s Fairness

Due Diligence: AI Expertise Can Give PE Buyers an Edge

Del. Chancery Refuses to Tag Minority Stockholder with Controller Status

Del. Supreme Affirms Chancery Decision Applying “Corwin Cleansing” to Price Reduction

Controller Deja Vu: Del. Chancery Again Finds No Liquidity-Based Conflict

Delaware Departures: Del. Supreme Applies “Business Judgment” to TripAdvisor Reincorporation

Post-Closing Adjustments: SRS Acquiom Issues Working Capital PPA Study

Spin-Offs: IRS Proposes Comprehensive New Regs

Venture Capital: Side Letters in Emerging & Growth Equity Financings

Private M&A: The Return of the “Dual-Track” Approach in Biotech Deals

Chamber Seeks to Block New HSR Enforcement

Conflicted Controllers: Del. Supreme Affirms Plaintiff Must Show Actual Control

Director Interlocks: FTC & DOJ Say Board Observers Count and Resignation May Not Cut It

“Understanding Activism” Podcast: Jonas Kron on ESG Activism

Antitrust: FTC Withdraws Competitor Collaboration Guidelines

Antitrust: DOJ Sues KKR for Alleged “Serial Violations” of HSR Act & KKR Fires Back

“Understanding Activism” Podcast: Jun Frank on Shareholder Proposal and Activism Trends

Antitrust: FTC Announces New HSR Filing Thresholds

D&O Insurance: Delaware Court Rejects Insurer’s Efforts to Rely on Bump-Up Exclusion

Del. Chancery Confirms High Bar to Prove Liquidity-Driven Conflict of a Controller

Proxy Contests: How Often Are Compensation Issues Raised?

Activism: Mid-cap Companies See Surge

Antitrust: HSR & the “Supervisory Deal Team Lead”

November-December Issue of Deal Lawyers Newsletter

Non-Competes: When Will Delaware Courts “Blue Pencil” Unenforceable Covenants?

Disclosure of Preliminary Merger Negotiations: Are SPACs Different?

“Baby HSR” Legislation: 50-State Survey

Duty of Loyalty: Unique Indemnification Rights Considered a Conflict

MAE Clauses: English High Court Decision Looks to DE Law

Remedies: Del. Chancery Imposes Constructive Trust Hitting PE Funds Right in the Wallet

Private Equity: Funds Eager to Get In the NFL Game

Private Equity: Big Players Flex Their Muscles

Mindbody: Del. Supreme Court Overrules Chancery on Aiding & Abetting

Antitrust: Is a GAAP Loophole Letting Parties Dodge HSR Filings?

“Understanding Activism” Podcast: Sean Donahue on Unconventional Activist Proxy Solicitations

National Security: Rules Expanding CFIUS Enforcement Authority Finalized

Duty of Loyalty: Lack of Provable Harm to Company Won’t Preclude Damages

Due Diligence: Be Careful What You Upload to Your Data Room

“Understanding Activism” Podcast: Dan McDermott on Activist Short Attacks

Practical M&A Treatise: The 2025 Edition is Here!

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