Investment Banking Today

7th Cir. Fires Another Shot at Mootness Fee Awards

Deal Lawyers

MAY 8, 2024

The 7th Circuit was one of the first federal courts to take a dubious view of mootness fee awards in M&A disclosure litigation, and its decision last month in Alcarez v. Akorn, (7th. Cir; 4/24), suggests that the Court’s views haven’t mellowed with time.

M&A

M&A IT

Private Equity: It Didn’t Start When We Think It Did

Deal Lawyers

MAY 7, 2024

If you’ve been reading this blog for a while, you know I’ve got a soft spot for M&A history. That’s why this CLS Blue Sky Blog discussing a new article on the history of private equity caught my eye.

Private Equity

Private Equity Equities IT M&A

“Deja Vu All Over Again”: Delaware Supreme Court Overrules Chancery on Disclosure of Advisor Conflicts

Deal Lawyers

MAY 6, 2024

The Delaware Supreme Court doesn’t appear to be seeing eye-to-eye with the Chancery Court when it comes to disclosure of advisor conflicts.

IT

Study: Private Target Deal Terms

Deal Lawyers

MAY 3, 2024

SRS Acquiom recently released its annual M&A Deal Terms Study for 2024 (available for download). This year, SRS Acquiom analyzed more than 2,100 private-target acquisitions that closed from 2018 through 2023. Here are some of the key findings summarized in the introduction: – Strategic buyers (both U.S.

M&A

M&A Acquisitions IT

ESG Due Diligence: Now Mandatory?

Deal Lawyers

MAY 2, 2024

This survey by BCG and Gibson Dunn concludes that ESG due diligence has become “indispensable” for M&A. Two-thirds of survey respondents have engaged on ESG topics during transactions, and 75% reported that they identified a material ESG issue in a deal in the last three years because they conducted due diligence.

M&A

DE Chancery: “Commercially Reasonable” Doesn’t Require Actions Beyond Buyer’s Self-Interest

Deal Lawyers

MAY 1, 2024

Himawan v. Cephalon, Inc. (Del. Ch.; 4/24) presents a familiar fact pattern in life-sciences M&A. The target biotech company was developing one main asset for two possible indications. In its acquisition by Cephalon, its stockholders were entitled to “milestone” payments tied to regulatory approval of the asset for those indications.

M&A

M&A Mergers Acquisitions IT

M&A Trends: 2024 Edition of Wachtell’s “Takeover Law & Practice”

Deal Lawyers

APRIL 30, 2024

Wachtell Lipton recently published the 2024 edition of its 237-page “Takeover Law and Practice” publication.

M&A

M&A IT

March-April Issue of Deal Lawyers Newsletter

Deal Lawyers

APRIL 29, 2024

The March-April Issue of the Deal Lawyers newsletter was just posted and sent to the printer.

Mergers

Closing Conditions: When Should Breaches of Financing Cooperation Covenants Trigger a Walk Right?

Deal Lawyers

APRIL 26, 2024

A recent lawsuit involving a buyer’s attempt to terminate a deal based on a seller’s alleged non-compliance with the purchase agreement’s financing cooperation covenant raises the question of when a buyer should have the right to walk away from a deal on that basis.

Finance

Finance Finance

Fraudulent Transfers: 7th Cir Holds Section 546(e) Safe Harbor Applies to Private Deals

Deal Lawyers

APRIL 25, 2024

Section 546(e) of the Bankruptcy Code provides a safe harbor from constructive fraudulent transfer claims for transfers that are settlement payments or payments related to a securities contract, when those transfers are “made by or to (or for the benefit of) … financial institutions.

Financial Institution

Financial Institution Securities

Non-Competes: FTC’s Final Rule Expands Sale of Business Carve-Out

Deal Lawyers

APRIL 24, 2024

Yesterday, the FTC adopted a final rule banning most non-competes in a 3-2, party line vote. Like the proposed rule, the final version includes an exception for non-competes entered into in connection with the bona fide sale of a business. The carve-out is contained in Section 910.

Sale

Sale Business

Reverse Mergers as an IPO Alternative

Deal Lawyers

APRIL 23, 2024

Despite a bit of a checkered reputation, non-SPAC reverse mergers are still a thing, and this excerpt from a recent WilmerHale memo (p.

IPO

IPO Mergers S&P Valuation

Rep & Warranty Insurance: Is the Bloom off the Rose?

Deal Lawyers

APRIL 22, 2024

The rise of RWI has been one of the biggest stories in private M&A over the past decade or so, but according to a recent SRS Acquiom study, RWI usage on private deals appears to be plateauing.

Insurance

Insurance M&A

FTC Open Meeting: Non-Competes on the Agenda Next Tuesday

Deal Lawyers

APRIL 19, 2024

This week, the FTC announced an open meeting next Tuesday, April 23rd. The Commission is scheduled to vote on final rules — previously proposed in January 2023 — that “would generally prevent most employers from using noncompete clauses.

Stock Repurchase Excise Tax: Treasury and IRS Announce Proposed Regulations

Deal Lawyers

APRIL 18, 2024

Shortly after the Inflation Reduction Act was signed into law, a number of tricky interpretive issues regarding the stock repurchase excise tax were identified, and the IRS published temporary interim guidance in Notice 2023-2. John blogged about the application of that interim guidance to SPACs in early 2023.

Stock

National Security: Treasury Proposes Expansion of CFIUS Enforcement Authority

Deal Lawyers

APRIL 17, 2024

Late last week, the Treasury Department announced the issuance of a Notice of Proposed Rulemaking “to enhance certain CFIUS procedures and sharpen its penalty and enforcement authorities.

Securities

Securities Negotiation IT

Adjustment Disputes: Seller Ordered to Pay Buyer 2x Purchase Price

Deal Lawyers

APRIL 16, 2024

You read that right! This Cleary blog addresses a late February Delaware Chancery opinion confirming an arbitration award. SM Buyer LLC v. RMP Seller Holdings, LLC (Del. Ch.

Equities

Vote Confirmation & Visibility in Contested Elections

Deal Lawyers

APRIL 15, 2024

In a recent blog about UPC, we discussed the language from corporates and dissidents stressing that their proxy card be returned — despite the fact that all sides’ nominees are presented on all cards. We noted that vote visibility limitations were one of the reasons for preferring which proxy card is used.

Corporation

Deal Lawyers Download Podcast: The SEC’s New SPAC Rules

Deal Lawyers

APRIL 11, 2024

In our latest Deal Lawyers Download Podcast, Michael Heinz, co-head of Sidley’s SPAC practice, joined me to discuss the SEC’s new SPAC rules.

Activism: M&A Demands Still Feature Prominently in Campaigns

Deal Lawyers

APRIL 11, 2024

A recent memo from H/Advisors Abernathy’s Dan Scorpio highlights some of the early lessons to be drawn from this year’s proxy season.

M&A

NYSE Proposes Favorable Change for SPACs

Deal Lawyers

APRIL 10, 2024

Here’s something that Meredith posted last week on TheCorporateCounsel.net Blog: Yesterday, the SEC posted this notice & request for comment for a proposed NYSE rule change that would amend Section 102.

IT

Antitrust: Are Buyers & Sellers Adjusting to the Regulatory “New Normal”?

Deal Lawyers

APRIL 9, 2024

A recent S&P Market Intelligence blog says that the first quarter of 2024 may see the highest number of big deal announcements in two years.

S&P

S&P M&A

Divestitures: The Reverse Morris Trust Alternative

Deal Lawyers

APRIL 8, 2024

Without a doubt, the most complicated transaction that I was participated in during my years of practice involved a Reverse Morris Trust structure. While the deal team cornered the market on Excedrin trying to sort the mechanics of that transaction out, it proved to be a terrific deal for all parties involved.

IT

Controllers: Del. Supreme Says “Yes, MFW Does Apply Beyond Squeeze-Outs”

Deal Lawyers

APRIL 4, 2024

At the risk of sounding like we have absolutely no lives, John and I have been eagerly awaiting the Delaware Supreme Court’s decision in the In Re Match Group Inc. Derivative Litigation for quite some time — at least since the December oral arguments. Yesterday, the comparatively short, 52-page opinion In Re Match Group Inc.

DE Chancery Tells Plaintiffs’ Counsel “Game is Over” for Outsized Fees

Deal Lawyers

APRIL 3, 2024

After a number of Delaware judicial developments that have presented complications for practitioners, this Sidley Enhanced Scrutiny blog highlights a welcome development for the defense bar, public companies and M&A practitioners. Garfield v.

M&A

More on the DOJ Safe Harbor: Not Everyone’s a Fan

Deal Lawyers

APRIL 4, 2024

John and I have previously blogged about the DOJ’s initiation of a “Mergers & Acquisitions Safe Harbor Policy” intended to incentivize voluntary self-disclosure of wrongdoing uncovered during the M&A process.

Mergers and Acquisitions

Mergers and Acquisitions M&A Mergers Shares

M&A Retention Awards: Companies Shorten Retention Periods

Deal Lawyers

APRIL 1, 2024

Here’s something I shared last week on CompensationStandards.com: WTW recently conducted a study of incentive structures and strategies companies use to retain key employees during an acquisition. The survey of approximately 160 respondents provides useful benchmarking information to shape retention programs more effectively.

M&A

M&A Shares Acquisitions

SPACs: Is More Information Going to Help?

Deal Lawyers

APRIL 1, 2024

In the SEC’s recent rulemaking relating to SPACs, the new requirements were crafted to address concerns about conflicts of interest and perceived shortcomings in disclosures associated with SPAC transactions — both SPAC IPOs and de-SPACs.

IPO

Proposed 2024 DGCL Amendments: “Chancery Court Cleanup in Aisle 3!”

Deal Lawyers

MARCH 29, 2024

The Chancery Court’s recent decisions in Crispo, Moelis, and Activision Blizzard have caused a lot of angst in the M&A community. Yesterday, the Delaware Bar took steps to calm the storm by recommending proposed amendments to the DGCL designed to address the uncertainty created by these decisions.

M&A

Successor Liability: Asset Deals as “De Facto Mergers”

Deal Lawyers

MARCH 28, 2024

Buyers in an asset deal go to a lot of trouble to ensure that they acquire only the assets and assume only the liabilities that they want.

Mergers

Mergers IT

M&A Disclosure: Del. Supreme Court Overrules Chancery on Materiality of Undisclosed Advisor Conflicts

Deal Lawyers

MARCH 27, 2024

Earlier this week, in City of Dearborn Police & Fire v. Brookfield Asset Management, (Del.; 3/24) the Delaware Supreme Court overruled the Chancery Court and held that allegations of undisclosed conflicts of interest involving a special committee’s legal and financial advisors were sufficient to deny the defendants’ motion to dismiss breach of fiduciary duty claims.

M&A

M&A Asset Management Management

M&A Due Diligence: Top Intellectual Property Issues

Deal Lawyers

MARCH 26, 2024

This Gibson Dunn memo addresses the top intellectual property issues that buyers should consider during the M&A due diligence process.

M&A

M&A Business

Controllers: Chancery Says Move to Nevada Doesn’t Have to Trigger Entire Fairness

Deal Lawyers

MARCH 25, 2024

Last month, Vice Chancellor Laster refused to dismiss claims challenging a controlled corporation’s decision to move its jurisdiction of incorporation from Delaware to Nevada.

Corporation

Corporation IT

Deal Lawyers Download Podcast: Activism 2024 – Michael Levin

Deal Lawyers

MARCH 21, 2024

In the latest Deal Lawyers Download Podcast, John is joined by Michael Levin — investor, corporate executive, and management consultant who is also well known for his websites that provide resources for investors, The Activist Investor and UniversalProxyCard.com.

Consulting

Consulting Investors Corporation Management

Consider This Before Rejecting a Dissident Director Nomination

Deal Lawyers

MARCH 21, 2024

There’s been a renewed focus on advance notice bylaws in the wake of the Chancery Court’s decision in Kellner v. AIM Immunotech (Del. Ch.; 12/23) addressing a challenge to advance notice bylaw amendments.

UPC: Retaining Limited Broker Discretionary Authority

Deal Lawyers

MARCH 19, 2024

This HLS blog post from the Shareholder Activism & Takeover Defense Practice at Latham briefly references another funky voting issue coming out of UPC.

Broker

Broker IT

D&O Insurance: Check Your Bump-Up Exclusion

Deal Lawyers

MARCH 19, 2024

This D&O Diary blog from Kevin LaCroix discusses an early March decision by the Eastern District of Virginia that a bump-up exclusion precluded D&O coverage for the $90 million paid by Towers Watson in settlement of claims relating to its January 2016 merger with Willis Group Holdings.

Insurance

Insurance Mergers IT

Private Equity: Increased Regulatory Scrutiny of Healthcare Acquisitions

Deal Lawyers

MARCH 18, 2024

In early March, the FTC, DOJ & HHS announced a “cross-government public inquiry into private equity and other corporations’ increasing control over health care.

Private Equity

Private Equity Healthcare Equities Acquisitions

Merger Agreements: Activision Decision May Raise Fewer Concerns in Other States

Deal Lawyers

MARCH 15, 2024

Earlier this month, I blogged about Chancellor McCormick’s decision in Sjunde AP-fonden v. Activision Blizzard, Inc., (Del. Ch.; 2/24), in which the Chancellor refused to dismiss claims alleged that the board violated various provisions of the DGCL by, among other things, approving a late-stage draft of the merger agreement instead of a final execution copy.

Mergers

Private Equity: There’s a New Metric in Town.

Deal Lawyers

MARCH 14, 2024

According to this MiddleMarket.com article, while limited partners in PE funds have historically looked to IRR as the key metric in determining investment decisions, a sharp decline in distributions over the past two years has caused many to shift their focus to a different metric.

Private Equity

Private Equity Equities Funds Investment

Antitrust: HSR Second Requests are Killing a Lot of Deals

Deal Lawyers

MARCH 13, 2024

Receiving an HSR Second Request from the DOJ or FTC on a pending transaction has always been kind of a deflating experience. Even in the more M&A friendly environment of years past, a Second Request added a significant amount of work, expense, and uncertainty to the deal process.

M&A

Transaction Insurance: Beyond RWI

Deal Lawyers

MARCH 12, 2024

We’ve blogged quite a bit over the years about Rep & Warranty Insurance, but that’s not the only type of transaction insurance available for buyers or sellers looking to lay-off some of the risk associated with their deals.

Insurance

M&A Disclosure: Court Allows Claims Based on Failure to Disclose Updated Sales Metric

Deal Lawyers

MARCH 11, 2024

In Vargas v. Citrix Systems, (SD Fla. 2/24), a case arising out of the 2022 acquisition of Citrix Systems, a Florida federal court refused to dismiss allegations that a merger proxy contained misleading omissions due to the target’s failure to provide updated information addressing continuing improvement in a key sales metric between signing and closing.

Sale

Sale M&A Mergers and Acquisitions Mergers

More on Kellner: Avoid Paying Plaintiffs’ Lawyers

Deal Lawyers

MARCH 8, 2024

In early January, John blogged about the Chancery Court’s decision in Kellner v. AIM Immunotech (Del. Ch.; 12/23) addressing a challenge to advance notice bylaw amendments. Vice Chancellor Will upheld certain amendments but struck down others. This Morgan Lewis memo discusses the fallout from that decision.

Deal Lawyers

7th Cir. Fires Another Shot at Mootness Fee Awards

Private Equity: It Didn’t Start When We Think It Did

Trending Sources

“Deja Vu All Over Again”: Delaware Supreme Court Overrules Chancery on Disclosure of Advisor Conflicts

Study: Private Target Deal Terms

ESG Due Diligence: Now Mandatory?

DE Chancery: “Commercially Reasonable” Doesn’t Require Actions Beyond Buyer’s Self-Interest

M&A Trends: 2024 Edition of Wachtell’s “Takeover Law & Practice”

March-April Issue of Deal Lawyers Newsletter

Closing Conditions: When Should Breaches of Financing Cooperation Covenants Trigger a Walk Right?

Fraudulent Transfers: 7th Cir Holds Section 546(e) Safe Harbor Applies to Private Deals

Non-Competes: FTC’s Final Rule Expands Sale of Business Carve-Out

Reverse Mergers as an IPO Alternative

Rep & Warranty Insurance: Is the Bloom off the Rose?

FTC Open Meeting: Non-Competes on the Agenda Next Tuesday

Stock Repurchase Excise Tax: Treasury and IRS Announce Proposed Regulations

National Security: Treasury Proposes Expansion of CFIUS Enforcement Authority

Adjustment Disputes: Seller Ordered to Pay Buyer 2x Purchase Price

Vote Confirmation & Visibility in Contested Elections

Deal Lawyers Download Podcast: The SEC’s New SPAC Rules

Activism: M&A Demands Still Feature Prominently in Campaigns

NYSE Proposes Favorable Change for SPACs

Antitrust: Are Buyers & Sellers Adjusting to the Regulatory “New Normal”?

Divestitures: The Reverse Morris Trust Alternative

Controllers: Del. Supreme Says “Yes, MFW Does Apply Beyond Squeeze-Outs”

DE Chancery Tells Plaintiffs’ Counsel “Game is Over” for Outsized Fees

More on the DOJ Safe Harbor: Not Everyone’s a Fan

M&A Retention Awards: Companies Shorten Retention Periods

SPACs: Is More Information Going to Help?

Proposed 2024 DGCL Amendments: “Chancery Court Cleanup in Aisle 3!”

Successor Liability: Asset Deals as “De Facto Mergers”

M&A Disclosure: Del. Supreme Court Overrules Chancery on Materiality of Undisclosed Advisor Conflicts

M&A Due Diligence: Top Intellectual Property Issues

Controllers: Chancery Says Move to Nevada Doesn’t Have to Trigger Entire Fairness

Deal Lawyers Download Podcast: Activism 2024 – Michael Levin

Consider This Before Rejecting a Dissident Director Nomination

UPC: Retaining Limited Broker Discretionary Authority

D&O Insurance: Check Your Bump-Up Exclusion

Private Equity: Increased Regulatory Scrutiny of Healthcare Acquisitions

Merger Agreements: Activision Decision May Raise Fewer Concerns in Other States

Private Equity: There’s a New Metric in Town.

Antitrust: HSR Second Requests are Killing a Lot of Deals

Transaction Insurance: Beyond RWI

M&A Disclosure: Court Allows Claims Based on Failure to Disclose Updated Sales Metric

More on Kellner: Avoid Paying Plaintiffs’ Lawyers

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