Corporate & Securities Law

Alternative Fee Arrangements for Deals: Little Less Talk and Lot More Action?

Posted on July 13, 2009
Alternative Fee Arrangements for Deals: Little Less Talk and Lot More Action? Tune in tomorrow for this DealLawyers.com webcast - "Alternative Fee Arrangements for Deals: Little Less Talk and Lot More Action?" - to hear Wilson Chu of K&L Gates;...

U.S. Regulation of Inbound M&A

Posted on July 09, 2009
US Regulation of Inbound M&A Below are some thoughts from William Newman of Sullivan & Worcester on the regulatory regimen in the US for inbound M&A deals - often a significant factor in determining whether a deal will be completed...

SEC Approves Elimination of NYSE Rule 452

Posted on July 07, 2009
SEC Approves Elimination of NYSE Rule 452 Here's some analysis from Cliff Neimeth of Greenberg Traurig: As widely anticipated, in an open session of the SEC's Commissioners last week, they approved (in a 3-2 split-vote) the elimination of NYSE Rule...

Delaware Court Allows Expedited Proceedings to Seek Injunctive Relief Based on Revlon Claims

Posted on July 01, 2009
Delaware Court Allows Expedited Proceedings to Seek Injunctive Relief Based on Revlon Claims Kevin Miller of Alston & Bird notes: In this order on Friday, Delaware Chancellor Chandler granted plaintiff's motion for expedited proceedings to seek injunctive relief to address...

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"It's Groundhog Day!" Deciding Whether to Disclose Merger Negotiations

Posted on June 29, 2009
"It's Groundhog Day!" Deciding Whether to Disclose Merger Negotiations - by John Jenkins, Calfee Halter & Griswold Sometimes you can't blame deal lawyers for feeling like Bill Murray's character in Groundhog Day - there are just some things that seem...

More on "Strategic Sandbagging: Let the Buyer Beware"

Posted on June 24, 2009
More on "Strategic Sandbagging": Let the Buyer Beware Reacting to this blog recently from John Jenkins, a member posed the question: why, given the virtually universal use of indemnification, does reliance matter? This member would characterize most claims as actions...

Delaware Supreme Court Affirms Alliance Data Systems

Posted on June 23, 2009
Delaware Supreme Court Affirms Alliance Data Systems Last week, the Delaware Supreme Court affirmed - in Alliance Data Systems v. Blackstone Capital Partners V - the Chancery Court's decision dismissing Alliance Data Systems suit against Blackstone acquisition entities for breach...

Study: Private Equity-Backed IPOs Not Shareholder Friendly

Posted on June 22, 2009
Study: Private Equity-Backed IPOs Not Shareholder Friendly Recently, The Corporate Library and the IRRC Institute teamed up to study whether private equity buyout firms institute more shareholder-friendly corporate governance structures in their IPO companies than non PE-backed IPO companies...

New Trend? Diminished Power for CEOs

Posted on June 18, 2009
New Trend? Diminished Power for CEOs We note that one of our DealLawyers.com board advisors, Frank Aquila of Sullivan & Cromwell, weighed in recently on the state of corporate governance in this BusinessWeek article. Frank argues that the recent market...

"Cool Deal Cube Contest": We Have a Winner!

Posted on June 16, 2009
"Cool Deal Cube Contest": We Have a Winner! Recently, I announced a "cool deal cube contest" as part of our ongoing "Deal Cube Chronicles." John Newell of Goodwin Procter takes the prize with this cube. John notes: Here is an...

Japan: Proxy Season Preview

Posted on June 15, 2009
Japan: Proxy Season Preview As the proxy season gets underway in Japan – where the majority of companies hold their meetings during the last two weeks of June - defensive measures are the hot topic once again this year. This...

Monitoring Activist Activity

Posted on June 10, 2009
Monitoring Activist Activity During this podcast, Mary Beth Kissane of Walek Associates analyzes how companies should be monitoring shareholder activist activity, including: - How do hedge funds have such a solid activism record? - What should companies do to prepare...

More on "First Drafts: On the Two Yard Line or Closer to Midfield?"

Posted on June 09, 2009
More on "First Drafts: On the Two Yard Line or Closer to Midfield?" - by Scott Walker, Walker Corporate Law Group I want to expand on John Jenkins' recent blog on first drafts to capture a broader - and perhaps...

Strategic Sandbagging: Let the Buyer Beware

Posted on June 08, 2009
Strategic Sandbagging: Let the Buyer Beware - by John Jenkins, Calfee Halter & Griswold Webster's Dictionary defines the term "sandbagging" to mean "to conceal or misrepresent one's true position, potential, or intent especially in order to take advantage of...

Proxy Access: Chinese Menu Ballots Address Concerns

Posted on June 04, 2009
Proxy Access: Chinese Menu Ballots Address Concerns - by Professor J.W. Verret The ghosts of securities law past, present, and future seem to haunt the headlines lately. But proxy access is heralded as the issue most likely to bring a...

Canadian Regulator Weighs In: Contingent Fee Fairness Opinions

Posted on June 03, 2009
Canadian Regulator Weighs In: Contingent Fee Fairness Opinions Recently, the Ontario Securities Commission announced its reasons for its January ruling that led to the withdrawal of HudBay Minerals' proposed acquisition of Lundlin Mining. In doing so, the OSC expressed concerns...

Delaware Chancery Court: "Continuing Director" CIC Provision

Posted on June 01, 2009
Delaware Chancery Court: "Continuing Director" CIC Provision A few weeks ago, Delaware Vice Chancellor Lamb issued his opinion in San Antonio Fire & Police Pension Fund v. Amylin Pharmaceuticals that had challenged "poison puts" in debt agreements. The Court interpreted...

Target's Annual Meeting Campaign: "Bringing It" Online

Posted on May 28, 2009
Target's Annual Meeting Campaign: "Bringing It" Online Some interesting news comes courtesy of Target, whose annual meeting is being held today. This will be no "regular" annual meeting as William Ackman, whose Pershing Square Capital Management owns a 7...

Corp Fin Grants General Motors Relief for Debt Exchange Offers

Posted on May 26, 2009
Corp Fin Grants General Motors Relief for Debt Exchange Offers Last week, Corp Fin granted General Motors exemptive relief so that GM can move fast and exchange its debt. The relief is highly unusual, but certainly seems merited under the...

Due Diligence: Aim Before You Fire

Posted on May 20, 2009
Due Diligence: Aim Before You Fire - by John Jenkins, Calfee Halter & Griswold Spearheading the legal due diligence investigation of a potential acquisition target is a big part of a deal lawyer's job. With the possible exception of preparing...

New DOJ Antitrust Chief Announces Aggressive Enforcement Philosophy

Posted on May 15, 2009
New DOJ Antitrust Chief Announces Aggressive Enforcement Philosophy In her first major public speech, new Assistant Attorney General for Antitrust Christine Varney announced last week that difficult economic times call for more aggressive - not less - antitrust enforcement and...

May-June Issue: Deal Lawyers Print Newsletter

Posted on May 13, 2009
May-June Issue: Deal Lawyers Print Newsletter This May-June issue of the Deal Lawyers print newsletter was just sent to the printer and includes articles on: - Reversing Course: Delaware's Supreme Court Provides Comfort to Directors Regarding Revlon Process and Bad...

A Little "Deal Tact" Goes a Long Way

Posted on May 12, 2009
A Little "Deal Tact" Goes a Long Way - by John Jenkins, Calfee Halter & Griswold In my last blog, I talked about some advice given to our firm's associates during a training session on becoming a seasoned business lawyer...

Deal Protection: The Latest Developments in an Economic Tsunami

Posted on May 11, 2009
Deal Protection: The Latest Developments in an Economic Tsunami Tune into our webcast tomorrow - "Deal Protection: The Latest Developments in an Economic Tsunami" - to hear these experts analyze the latest Delaware law developments in deal protection: - Clifford...

First Drafts: On the Two Yard Line or Closer to Midfield?

Posted on May 06, 2009
First Drafts: On the Two Yard Line or Closer to Midfield? - by John Jenkins, Calfee Halter & Griswold A few months ago, our law firm had one of its periodic training sessions for our associate attorneys. The topic for...

The "Deal Cube" Chronicles: Part 3

Posted on May 04, 2009
The "Deal Cube" Chronicles: Part 3 Following up on Part 2, Charles Vaughn of Nelson Mullins Riley & Scarborough provides us some fodder for the latest installment of the "Deal Cube Chronicles": "In my office at home is a beautiful...

HLSP Holdings v. Fortune Management: ConEd Issues Are Alive and Well in Delaware

Posted on April 30, 2009
HLSP Holdings v. Fortune Management: ConEd Issues Are Alive and Well in Delaware Here is analysis of a recent decision from Kevin Miller of Alston & Bird: In HLSP Holdings v. Fortune Management, the Delaware Superior Court recently granted a...

Standing Mergers & Acquisitons Board Committees: Few and Far Between

Posted on April 28, 2009
Standing Mergers & Acquisitons Board Committees: Few and Far Between Recently, a member asked if we had any board committee charters for M&A Committees. We conducted some search and we were able to find a few - that we have...

Teaching Transactional Lawyering

Posted on April 22, 2009
Teaching Transactional Lawyering As someone who sometimes teaches, I enjoyed reading this paper entitled "Teaching Transactional Lawyering" by Drexel Prof. Karl Okamoto. If you are involved with teaching mergers & acquisitions, either internally in your firm or at a college...

Closings Then and Now

Posted on April 15, 2009
Closings Then and Now - by John Jenkins, Calfee Halter & Griswold I started practicing law in 1986, but so much has changed since then that I often feel like I'm a complete relic. For instance, it boggles my mind...

News from the Tulane Corporate Law Institute

Posted on April 14, 2009
News from the Tulane Corporate Law Institute A few weeks ago, the Tulane Corporate Law Institute was held and it's still the most well-covered annual M&A event, despite a dearth of deals these days (as well a declining number of...

Sponsor-Backed Going Private Transactions

Posted on April 07, 2009
Sponsor-Backed Going Private Transactions Recently, Ira Millstein of Weil Gotshal blogged about his firm's 3rd annual survey of sponsor-backed going private transactions. The survey analyzes and summarizes the material transaction terms of going private transactions involving a private equity sponsor...

Now Available: FASB's Staff Position of FAS 141(R)

Posted on April 03, 2009
Now Available: FASB's Staff Position of FAS 141(R) A few weeks ago, I blogged about the FASB agreeing to issue a Staff Position that modifies FAS 141R on the accounting for business combinations (essentially leaving the FAS 5 regime in...

The SEC Staff on M&A

Posted on April 02, 2009
The SEC Staff on M&A We have posted the transcript of our popular webcast: "The SEC Staff on M&A."...

Novel No-Action Response: Ability to "Round Out" Minority Slates with Other Insurgents

Posted on April 01, 2009
Novel No-Action Response: Ability to "Round Out" Minority Slates with Other Insurgents Recently, Carl Icahn and Eastbourne Capital Management each sent a similar no-action request to Corp Fin that is quite interesting. I can't recall seeing anything quite like it...

Merger Litigation Sharply Rejected by the Seventh Circuit

Posted on March 30, 2009
Merger Litigation Sharply Rejected by the Seventh Circuit Here is analysis of a new case from Wachtell Lipton: Long after Sam Zell's decision to sell Equity Office Properties (EOP) at the market top in an all-cash deal was followed by...

Game Changer: Delaware Supreme Court Reverses in Lyondell

Posted on March 27, 2009
Game Changer: Delaware Supreme Court Reverses in Lyondell We have begun posting memos on the Lyondell decision in our "Fiduciary Duties" Practice Area. Even though I blogged about it yesterday, the case is important enough to also blog the following....

The Big Reversal: Lyondell Chemical Company v. Ryan

Posted on March 26, 2009
The Big Reversal: Lyondell Chemical Company v. Ryan - by Brad Aronstam, Connolly Bove Lodge & Hutz Last night, the Delaware Supreme Court delivered the much anticipated decision in Lyondell Chemical Company v. Ryan (No. 401, 2008). The decision reverses...

Analysis: Flip-In vs. Flip-Over Pills

Posted on March 25, 2009
Analysis: Flip-In vs. Flip-Over Pills - by John Jenkins, Calfee Halter & Griswold A member recently asked in the DealLawyers.com "Q&A Forum" about the rationale for including "flip-in" and "flip-over" provisions in shareholder rights plans, or "poison pills...

Testing the Chinese Anti-Monopoly Law: China Blocks Foreign Acquisition of Chinese Company

Posted on March 23, 2009
Testing the Chinese Anti-Monopoly Law: China Blocks Foreign Acquisition of Chinese Company Last week, the Ministry of Commerce of the People's Republic of China blocked Coca-Cola's proposed acquisition of a major domestic juice manufacturer (China Huiyuan Juice Group Limited) under...

FASB Amends Guidance on Standard for Contingencies in Business Combinations

Posted on March 19, 2009
FASB Amends Guidance on Standard for Contingencies in Business Combinations Last Friday, the FASB held a roundtable to discuss disclosure of certain loss contingencies. This handout shows the issues that were discussed, as the FASB is redeliberating last year's proposed...

The SEC Staff on M&A

Posted on March 18, 2009
The SEC Staff on M&A Tune in tomorrow for this webcast - "The SEC Staff on M&A" - to hear all the latest from: - Michele Anderson, Chief, SEC's Office of Mergers & Acquisitions - Dennis Garris, Partner, Alston &...

March-April Issue: Deal Lawyers Print Newsletter

Posted on March 17, 2009
March-April Issue: Deal Lawyers Print Newsletter This March-April issue of the Deal Lawyers print newsletter was just sent to the printer and includes articles on: - Lessons from the Meltdown: Remedies - Poison in a Pen: Recent Trends in Drafting...

"You're Going the Wrong Way!"

Posted on March 16, 2009
"You're Going the Wrong Way!" - by John Jenkins, Calfee Halter & Griswold Remember the scene in "Planes, Trains and Automobiles" where John Candy and Steve Martin are driving the wrong way down an interstate highway? A couple driving in...

Customary M&A Indemnity Provision Gives Rise to Breach of Loyalty Claim

Posted on March 12, 2009
Customary M&A Indemnity Provision Gives Rise to Breach of Loyalty Claim - by John Jenkins, Calfee Halter & Griswold Public company merger agreements frequently contain provisions under which a buyer agrees to cause the surviving corporation to indemnify the seller's...

A Little Comic Relief

Posted on March 11, 2009
A Little Comic Relief Oddly, I've been watching a few of CNBC's stock market shows lately. I guess I've been curious how they've been touting stocks in this downturn and it's been comic relief. And the recent feud between Jon...

The "Deal Cube" Chronicles: Part 2

Posted on March 10, 2009
The "Deal Cube" Chronicles: Part 2 Following up on my earlier blog portraying some "deal cube" chronicles, I'm holding a contest for the coolest cube. Please email me pictures of the cube(s) that you cherish the most. If you wish...

Valuing Interests in Private Equity and Hedge Funds

Posted on March 09, 2009
Valuing Interests in Private Equity and Hedge Funds In our "Private Equity" Practice Area, we have posted a number of memos and articles discussing the future of the private equity and hedge fund industries. One of the articles states: "In...

Carbon Risks and Opportunities: Implications for Investment Activity and M&A

Posted on March 05, 2009

More on Roche and Genentech's Tangled Web

Posted on March 04, 2009

The "Deal Cube" Chronicles

Posted on March 03, 2009

Madden v. Cowen & Co.: SLUSA's "Delaware Carve-Out" Applies to Suit Against M&A Financial Adviser

Posted on March 02, 2009

Roche and Genentech’s Tangled Web

Posted on February 26, 2009
Roche and Genentech’s Tangled Web - by John Jenkins, Calfee Halter & Griswold The continuing saga of Swiss pharmaceutical giant Roche’s efforts to acquire the 44% of Genentech that it does not already own added a chapter on Monday, when...

Lessons Learned from the BCE Buyout: Bondholder Rights, Litigation Issues, Etc.

Posted on February 25, 2009
Lessons Learned from the BCE Buyout: Bondholder Rights, Litigation Issues, Etc. Tune in tomorrow for this webcast: "Lessons Learned from the BCE Buyout: Bondholder Rights, Litigation Issues, Etc." Please print off these course materials in advance. And stay tuned for...

Survey: Rising Demand for Fairness Opinions

Posted on February 24, 2009
Survey: Rising Demand for Fairness Opinions This recent survey finds that a majority of senior executives expect demand for – and scrutiny of – fairness opinions to increase in the US and Europe. Here is a summary of key results...

Japanese Investors Step Up Opposition to Pills

Posted on February 23, 2009
Japanese Investors Step Up Opposition to Pills Recently, RiskMetrics reported in its "Corporate Governance Blog": Corporate Japan may have a tougher time deploying “poison pills” as investor opposition to such defenses mounts. In the latest signal that financial market participants...

Antitrust Clearance: Cutting through the Government Red Tape to Close the Deal

Posted on February 19, 2009
Antitrust Clearance: Cutting through the Government Red Tape to Close the Deal From Akin Gump: "The recent worldwide financial turmoil and the still-uncertain aftermath of the Emergency Economic Stabilization Act of 2008 have sparked major mergers and acquisitions that need...

Deal Cubes: Fond Memories

Posted on February 18, 2009
Deal Cubes: Fond Memories This commentary by Christine Hurt on the "Conglomerate Blog" brought back fond memories regarding my long lost collection of deal toys. Well, not really "lost." More like "tossed" after a few years passed and I began...

Developments in Debt Restructurings & Debt Tender/Exchange Offers

Posted on February 17, 2009
Developments in Debt Restructurings & Debt Tender/Exchange Offers One impact of the Recovery Act is a reduced tax burden for those companies that restructure or cancel debt, which may complicate tax planning. To learn about this and more, tune in...

Look Out for Hoax Letters

Posted on February 12, 2009
Look Out for Hoax Letters According to this Kirkland & Ellis memo, several private equity funds have received letters purporting to be from (or, in some cases, to) the SEC. These letters ask the funds not to make capital calls...

Gantler v. Stephens: Bad Moon Risin’ for Corporate Officers?

Posted on February 10, 2009
Gantler v. Stephens: Bad Moon Risin’ for Corporate Officers? - John Jenkins, Calfee Halter & Griswold Whenever the Delaware Supreme Court issues a corporate law decision, it’s almost by definition big news. However, the court’s recent decision in Gantler v...

Some Guidance on Corp Fin's Updated 13e-3 Interps

Posted on February 09, 2009
Some Guidance on Corp Fin's Updated 13e-3 Interps Here is a good summary from Cleary Gottlieb: A few weeks ago, the SEC released updated interpretations regarding the application of Rule 13e-3 to going private transactions. Among other things, Rule 13e-3...

Online Course: Tackling Equity Compensation Issues Related to Mergers & Acquisitions

Posted on February 06, 2009
Online Course: Tackling Equity Compensation Issues Related to Mergers & Acquisitions Surprising given the environment, a number of law firms are taking advantage of the upcoming NASPP online course "Tackling Equity Compensation Issues Related to Mergers & Acquisitions...

Pfizer’s Reverse Break-up Fee

Posted on February 05, 2009
Pfizer’s Reverse Break-up Fee - John Jenkins, Calfee Halter & Griswold As reported by The New York Times and other media outlets when the deal was first announced, the merger agreement for Pfizer’s $68 billion acquisition of Wyeth contains an...

Private Equity Investments in Financial Services Raising & Solving New Issues

Posted on February 04, 2009
Private Equity Investments in Financial Services Raising & Solving New Issues Here is an interesting article from Fried Frank: The good news is that private equity (“PE”) investments in financial institutions are occurring at an unprecedented pace, and there is...

Pat McGurn on M&A

Posted on February 03, 2009
Pat McGurn on M&A A few weeks ago, Pat McGurn, Special Counsel of RiskMetrics’ ISS Division, participated in a TheCorporateCounsel.net webcast: “Forecast for 2009 Proxy Season: Wild and Woolly.” The excerpt below was culled from the webcast transcript and it...

The Tender Offer Makes a Comeback

Posted on February 02, 2009
The Tender Offer Makes a Comeback - by John Jenkins, Calfee, Halter & Griswold LLP The health care sector is one of the few areas of the deal economy where M&A activity remains fairly robust, particularly among the multi-national pharmaceutical...

Obama's Key Antitrust Nomination: What to Expect From the FTC and DOJ Now

Posted on January 29, 2009
Obama's Key Antitrust Nomination: What to Expect From the FTC and DOJ Now From a Paul Weiss alert: President Barack Obama has announced his nomination of Christine Varney to serve as assistant attorney general in charge of the Antitrust Division...

IndyMac: Signals Possibilities for Investments in Failed, Troubled Banks

Posted on January 28, 2009
IndyMac: Signals Possibilities for Investments in Failed, Troubled Banks As noted by Cleary Gottlieb: "The year-end purchase of IndyMac by a PE/hedge fund consortium headlined some key elements for failed and troubled bank sales in the coming year, absent a...

Corp Fin Issues Updated Interpretations for Going Private Transactions and '33 Act Rules

Posted on January 27, 2009
Corp Fin Issues Updated Interpretations for Going Private Transactions and '33 Act Rules Close enough to getting them out by the end of the year as promised, Corp Fin issued two sets of new Compliance & Disclosure Interpretations yesterday -...

BofA/Merrill and Disclosure About an Incomplete Quarter

Posted on January 26, 2009
BofA/Merrill and Disclosure About an Incomplete Quarter - by John Jenkins, Calfee, Halter & Griswold LLP Merrill Lynch’s catastrophic fourth quarter performance and Bank of America’s decision to close the Merrill deal notwithstanding those results have resulted in the filing...

Delaware Chancery Court Dismisses Claim for Payment of a Termination Fee

Posted on January 23, 2009
Delaware Chancery Court Dismisses Claim for Payment of a Termination Fee From Travis Laster: Last week, Vice Chancellor Leo Strine issued an opinion in Alliance Data Systems v. Blackstone Capital Partners V - dismissing claims filed by Alliance Data Systems...

SFAS 141(R) Doesn’t Deter Endo Pharmaceuticals from Contingent Payment to Target Shareholders

Posted on January 22, 2009
SFAS 141(R) Doesn’t Deter Endo Pharmaceuticals from Contingent Payment to Target Shareholders - by John Jenkins, Calfee, Halter & Griswold LLP One of the many aspects of SFAS 141(R) that has caused some angst among dealmakers is the provision governing...

The Latest Cross-Border Deal Developments

Posted on January 21, 2009
The Latest Cross-Border Deal Developments With the dealmaking environment facing unforeseeable challenges - and the SEC making the biggest batch of changes to its cross-border in years, practitioners are grappling with how these deals will now change...

FTC Revises HSR Filing Thresholds

Posted on January 15, 2009
FTC Revises HSR Filing Thresholds Pursuant to the 2000 Amendments to the HSR Act, annual adjustments to the notification thresholds are made based on an index that is tied to changes in the U.S. gross national product for each fiscal...

Wrigley Case: Illinois Court Dismisses Shareholder Claims Against Financial Advisor

Posted on January 14, 2009
Wrigley Case: Illinois Court Dismisses Shareholder Claims Against Financial Advisor - by Kevin Miller, Alston & Bird In a decision entered yesterday - in Young v. Goldman Sachs - the Circuit Court of Cook County, Illinois County Department, Chancery Division,...

Intentional Triggering: The Ongoing Saga of Selectica’s Poison Pill

Posted on January 13, 2009
Intentional Triggering: The Ongoing Saga of Selectica’s Poison Pill - by John Jenkins, Calfee, Halter & Griswold LLP Last week, Professor Steven Davidoff blogged about the remarkable situation unfolding over at Selectica, Inc., a Nasdaq-listed provider of contract management software,...

Hedge Fund Activism Extends to SPACs

Posted on January 12, 2009
Hedge Fund Activism Extends to SPACs - by Ted Wallace, Director of Research, The Altman Group A Special Purpose Acquisition Company (SPAC) is a publicly traded shell (or blank check) company formed for the specific purpose of buying an existing...

Corp Fin Issues No-Action Response on Israeli "Partial Offer"

Posted on January 08, 2009
Corp Fin Issues No-Action Response on Israeli "Partial Offer" Jim Moloney of Gibson Dunn notes: Yesterday, the SEC's Division of Corporation Finance posted this no-action letter granted to Retalix. In this case, we have a cross-border tender offer transaction involving...

The Delaware Chancery Court: Big Changes Coming

Posted on January 07, 2009
The Delaware Chancery Court: Big Changes Coming Last month, The Deal ran this interesting article entitled "Change comes to Chancery." Sounds like the four out of five of the justices - Chandler, Lamb, Strine and Parsons - may be moving...

Europe: Transformational M&A and Restructuring Deals on Horizon

Posted on January 06, 2009
Europe: Transformational M&A and Restructuring Deals on Horizon With our "Implementing the New Cross-Border Rules" webcast coming up, I thought it was worth repeating this survey summary issued as part of yesterday's "Directors & Boards" e-Briefing: The financial and economic...

DOJ's Antitrust Division Issues New Guidelines for Criminal Leniency Program

Posted on January 05, 2009
DOJ's Antitrust Division Issues New Guidelines for Criminal Leniency Program From Womble Carlyle: The Antitrust Division (“AD”) of the Department of Justice recently issued revised model conditional leniency letters for companies seeking to avoid criminal prosecution for antitrust violations in...

FASB Issues Proposed FSP FAS 141(R)-a

Posted on December 18, 2008
FASB Issues Proposed FSP FAS 141(R)-a On Monday, the FASB released its proposed FASB Staff Position on FAS 141R standards regarding recognition of contingencies acquired or assumed in a business combination - its called FSP FAS 141(R)-a. As previously blogged,...

Her Majestys Government: Corp Fin Grants Schedule 13D Relief for UKs Investment in the Banking Sector

Posted on December 17, 2008
Her Majestys Government: Corp Fin Grants Schedule 13D Relief for UKs Investment in the Banking Sector Last week, Corp Fin issued this no-action letter entitled Her Majestys Government. Is that the coolest name for a government response or what? Its...

National City: Interesting Fairness Opinion

Posted on December 15, 2008
National City: Interesting Fairness Opinion - by John Jenkins, Calfee, Halter & Griswold LLP While people often think that fairness opinions consist of nothing but boilerplate, that’s not the case when the one of the parties is facing particularly challenging...

Judging the Accuracy: ABA's "2008 Strategic Buyer/Public Company Deal Point Study"

Posted on December 11, 2008
Judging the Accuracy: ABA's "2008 Strategic Buyer/Public Company Deal Point Study" In our "Negotiation Tactics" Practice Area, we have posted the "2008 Strategic Buyer/Public Company Deal Point Study," which was recently compiled by the Market Trends Subcommittee of the ABA's...

Upheld: JP Morgan's Purchase of Bear Stearns

Posted on December 10, 2008
Upheld: JP Morgan's Purchase of Bear Stearns Last week, Justice Cahn of the New York State Supreme Court - in In Re: Bearn Stearns Litigation - granted summary judgment in dismissing a shareholder challenge to the fairness of JPMorgan’s purchase...

Corp Fin Issues New Written Consent CDI

Posted on December 09, 2008
Corp Fin Issues New Written Consent CDI Recently, Corp Fin issued a new set of "'33 Act Compliance and Disclosure Interpretations." Question 239.13 addresses the application of the '33 Act to written consents by a target company’s shareholders approving a...

Corp Fin Issues Compliance Guide for New Cross-Border Rules

Posted on December 08, 2008
Corp Fin Issues Compliance Guide for New Cross-Border Rules Last week, Corp Fin posted a "Compliance Guide" covering the new rules on cross-border business combinations, exchange offers and rights offering, which are effective today. Despite the “Small Entity” title, the...

Antitrust: Government Sues For Divestiture in $76 Million Deal

Posted on December 03, 2008
Antitrust: Government Sues For Divestiture in $76 Million Deal Recently, the Federal Trade Commission sought to unwind an M&A transaction completed more than six months ago that was not subject to HSR notification requirements. This is the latest in a...

FDIC Allows Non-Banks to Bid for Troubled Institutions

Posted on December 01, 2008
FDIC Allows Non-Banks to Bid for Troubled Institutions Last week, the FDIC announced a modified bidder qualification process that allows non-banks to bid on failed financial institutions. This new process is important given that the number of failed banks is...

House Bill Seeks to Prospectively Reverse IRS' Controversial Section 382 Notice

Posted on November 25, 2008
House Bill Seeks to Prospectively Reverse IRS' Controversial Section 382 Notice Last week, as noted in this memo, Representative Lloyd Doggett (D-Tex.) introduced a bill which would prospectively reverse controversial Internal Revenue Service Notice 2008-83...

CFIUS Issues Final Regulations

Posted on November 24, 2008
CFIUS Issues Final Regulations From Linda DeMelis: Last week, the Department of the Treasury's Committee on Foreign Investment in the United States (known as “CFIUS”) issued final regulations governing national security reviews of foreign investments in US companies...

November-December Issue: Deal Lawyers Print Newsletter

Posted on November 21, 2008
November-December Issue: Deal Lawyers Print Newsletter This November-December issue of the Deal Lawyers print newsletter was just sent to the printer and includes articles on: - Responding to Liquidity/Capital Constraints: The Joint Venture Decision Tree - Breaking Up is Hard...

California Love

Posted on November 20, 2008
California Love - by John Jenkins, Calfee, Halter & Griswold LLP Looking for a sophisticated discussion of Delaware law concerning the effect of shareholder ratification on breach of fiduciary duty claims? How about an in-depth analysis of the current state...

Delaware Chancery Rules in Merrill Lynch vs. BofA

Posted on November 19, 2008
Delaware Chancery Rules in Merrill Lynch vs. BofA Last week, Francis Pileggi covered a recent Delaware Chancery Court decision regarding the merger of Merrill Lynch and Bank of America in his "Corporate & Commercial Litigation" Blog: In County of York...

A Quiet Windfall for US Banks

Posted on November 18, 2008
A Quiet Windfall for US Banks Last week, the Washington Post ran this front-page article entitled "A Quiet Windfall for US Banks." The article discussed Notice 2008-83 that the IRS issued back on September 30th. This Notice allows more effective...

Fundamentals of Investing in Public Companies

Posted on November 17, 2008
Fundamentals of Investing in Public Companies Tune in Wednesday for this DealLawyers.com half-day video webconference: “Fundamentals of Investing in Public Companies.” Thanks to Kirkland & Ellis, we are providing this conference to DealLawyers.com members so that they can learn the...

The Wachovia Shareholder Suit

Posted on November 13, 2008
The Wachovia Shareholder Suit - by John Jenkins, Calfee, Halter & Griswold LLP There is some interesting shareholder litigation in North Carolina’s Superior Court over Wells Fargo’s pending acquisition of Wachovia Corporation. In Ehrenhaus v. Baker, 2008 WL 4787584 (N...

NJ Court Applying Delaware Law Denies Motion for Preliminary Injunction

Posted on November 12, 2008
NJ Court Applying Delaware Law Denies Motion for Preliminary Injunction On October 28th, the Superior Court of New Jersey - in In re: Datascope Shareholders Litigation - denied plaintiffs motion to preliminarily enjoin the closing of a first step tender...

A New Chapter in the CSX Dispute

Posted on November 10, 2008
A New Chapter in the CSX Dispute As noted in this WSJ article, a Section 16(b) claim has been filed against the two hedge funds that were locked in a dispute with CSX Corp. earlier this year. A CSX shareholder...

Joyce v. Morgan Stanley: 7th Circuit Holds Board’s Financial Advisor Doesn't Owe Fiduciary Duty to Shareholders

Posted on November 06, 2008
Joyce v. Morgan Stanley: 7th Circuit Holds Board’s Financial Advisor Doesn't Owe Fiduciary Duty to Shareholders - by John Jenkins, Calfee, Halter & Griswold LLP In Joyce v. Morgan Stanley, 538 F.3d 797 (7th Cir. 2008), the Seventh Circuit recently...

FASB: Proposes Tweaks to FAS 141R, Business Combinations

Posted on November 05, 2008
FASB: Proposes Tweaks to FAS 141R, Business Combinations Last week, the FASB agreed at its board meeting to provide guidance on the soon-to-be-effective FAS 141R, Business Combinations by issuing a proposed FASB Staff Position regarding assets and liabilities arising from...

The "Santiago Principles": Now Available

Posted on November 03, 2008
The "Santiago Principles": Now Available A while back, I blogged that the recently-formed International Working Group of Sovereign Wealth Funds would soon be issuing a set of Generally Accepted Principles and Practices (GAPP). These “Santiago Principles” have now been issued...

Hexion-Huntsman Deal Hits a Snag: An Unusual Coda?

Posted on October 30, 2008
Hexion-Huntsman Deal Hits a Snag: An Unusual Coda? - Linda DeMelis, TheCorporateCounsel.net In July 2007, Hexion Specialty Chemicals, a portfolio company of private equity firm Apollo Management, agreed to acquire Huntsman Corporation for $10.6 billion (including assumed debt)...

FINRA Issues Guidance on Broker/Dealer Obligations regarding SPACs

Posted on October 29, 2008
FINRA Issues Guidance on Broker/Dealer Obligations regarding SPACs Recently, FINRA issued Regulatory Notice 08-54, which provides guidance on the structure, trends and broker/dealer conflicts of interest associated with SPACs. The Notice discusses broker/dealer suitability and disclosure obligations in connection with...

Formula Pricing in the Exchange Offer Context

Posted on October 20, 2008
Formula Pricing in the Exchange Offer Context Recently, the Corp Fin Staff acted on a no-action letter to Procter & Gamble. It builds upon the prior letters in the area of formula pricing in the exchange offer context. Prior letters...

Course Materials Now Available

Posted on October 16, 2008
Course Materials Now Available You are now able to obtain – and print out – the course materials related to our next week's Conferences: "Tackling Your 2009 Compensation Disclosures: The 3rd Annual Proxy Disclosure Conference" & "5th Annual Executive Compensation...

State Corporate Law Fallout from the Financial Bailout?

Posted on October 15, 2008
State Corporate Law Fallout from the Financial Bailout? - by John Jenkins, Calfee, Halter & Griswold LLP While the Treasury Department’s Troubled Assets Relief Program - know as "TARP" - does not directly address any state corporate law issues, if...

Antitrust Pitfalls to Avoid: Dealing with Potential Insolvency of Key Trading Partner

Posted on October 14, 2008
Antitrust Pitfalls to Avoid: Dealing with Potential Insolvency of Key Trading Partner Fred Houwen of Reed Smith recently wrote this in a firm alert: In the current economic climate, businesses are likely to take a keen interest in the ability...

Citigroup Withdraws Offer to Buy Wachovia Banking Operations

Posted on October 10, 2008
Citigroup Withdraws Offer to Buy Wachovia Banking Operations Here is a post by David Brown on Alston & Bird's new "Financial Markets Crisis Blog": Last night, Citigroup announced that it had ended negotiations with Wells Fargo over Wachovia, citing "dramatic...

September-October Issue: Deal Lawyers Print Newsletter

Posted on October 08, 2008
September-October Issue: Deal Lawyers Print Newsletter This September-October issue of the Deal Lawyers print newsletter was just sent to the printer and includes articles on: - Boards Can’t Watch a Sale Unfold from the Balcony: Nine Take-Aways from Lyondell -...

More on Wells Fargo's Exclusivity Agreement

Posted on October 07, 2008
More on Wells Fargo's Exclusivity Agreement Yesterday, John Jenkins blogged on the battle between Citigroup and Wells Fargo for Wachovia. Yesterday, Citi filed a $60 billion lawsuit over the battle. Here are a thoughts on Wells Fargo's exclusivity agreement: 1...

Citigroup, Wachovia & Wells Fargo: "Deal Jumping" is Alive and Well in the Financial Sector

Posted on October 06, 2008
Citigroup, Wachovia & Wells Fargo: "Deal Jumping" is Alive and Well in the Financial Sector - John Jenkins, Calfee, Halter & Griswold LLP A fascinating showdown appears to be brewing between Citigroup and Wachovia over the decision by Wachovia’s board...

After Omnicare: Delaware Chancery Court Denies Injunction Against Target Merger Agreement

Posted on October 02, 2008
After Omnicare: Delaware Chancery Court Denies Injunction Against Target Merger Agreement From Cliff Neimeth of Greenberg Traurig: In its first published consideration of the issue since the Delaware Supreme Court's 2003 decision in Omnicare v. NCS Healthcare, the Delaware Chancery...

Delaware Court of Chancery Directs Hexion/Huntsman Merger To Go Forward

Posted on October 01, 2008
Delaware Court of Chancery Directs Hexion/Huntsman Merger To Go Forward From Travis Laster: On Monday night, Delaware Vice Chancellor Lamb issued his much anticipated post-trial decision on the Hexion/Huntsman deal. In the opinion and implementing order, Vice Chancellor Lamb holds...

Interesting Times, Huh?

Posted on September 29, 2008
Interesting Times, Huh? - John Jenkins, Calfee, Halter & Griswold LLP As the financial markets careen from one crisis to another, it’s hard to find any good news to report about the deal economy. M&A volume is down, and it’s...

Noncontrolling Investments in Banking Organizations

Posted on September 26, 2008
Noncontrolling Investments in Banking Organizations On Monday, as Morgan Stanley and Goldman Sachs were being reorganized into bank holding companies, the Board of Governors of the Federal Reserve System issued a new policy statement on equity investments in banks and...

A Year After the Credit Crunch: Selected US Merger Statistics

Posted on September 23, 2008
A Year After the Credit Crunch: Selected US Merger Statistics Here is a recent survey that looks at some interesting comparisons of mergers in the US between the two 12-month periods of August 2006/July 2007 and August 2007/July 2008. No...

Will Uncle Sam be a Controlling Stockholder with Fiduciary Duties at AIG?

Posted on September 19, 2008
Will Uncle Sam be a Controlling Stockholder with Fiduciary Duties at AIG? Here is a guest blog from Steven Haas of Hunton & Williams: The bailout of AIG gave the Federal Reserve a warrant to obtain 79.9% of the company’s...

Ninth Circuit Limits Survival Clause in Deal Governed by California Law

Posted on September 18, 2008
Ninth Circuit Limits Survival Clause in Deal Governed by California Law As noted in this memo, in what the court described as "an issue of first impression" - in Western Filter Corporation v. Argan (CD Cal.; 8/08) - the Ninth...

RiskMetrics Begins Advising on Tender Offers

Posted on September 16, 2008
RiskMetrics Begins Advising on Tender Offers Last Friday, RiskMetrics' ISS Division broke with tradition and advised its clients not to tender Longs Drug Stores' shares into CVS' tender offer. Historically, RiskMetrics has only made recommendations on shareholder votes and left...

The Original Go-Shop?

Posted on September 15, 2008
The Original Go-Shop? Here is a guest blog from Steven Haas of Hunton & Williams: Travis Laster and I recently co-authored an article in the July 2008 issue of Insights entitled "Relearning M&A Lessons: A Reprise of the 1980s." The...

Delaware Chancellor Dismisses Claim that Directors Sold Subsidiary in Bad Faith

Posted on September 12, 2008
Delaware Chancellor Dismisses Claim that Directors Sold Subsidiary in Bad Faith From Travis Laster: In McPadden v. Sidhu, Delaware Chancellor Chandler recently granted a motion to dismiss claims against the outside directors of i2 Corporation for allegedly selling a significant...

Interview with Delaware Chief Justice Steele

Posted on September 10, 2008
Interview with Delaware Chief Justice Steele Below is a fine interview conducted by Professor J.W. Verret on "The Conglomerate" Blog: I am pleased to welcome Chief Justice Steele to the Conglomerate today. I got to know him when I was...

VC Strine Validates Naked No-Vote Termination Fee

Posted on September 08, 2008
VC Strine Validates Naked No-Vote Termination Fee Here is a guest blog from Steven Haas of Hunton & Williams: Last Tuesday, Delaware Vice Chancellor Leo Strine upheld a “naked no-vote termination fee” in the Lear litigation (2008 WL 4053221). Lear...

What is the Timetable to Assert a MAE?

Posted on September 05, 2008
What is the Timetable to Assert a MAE? From Brad Aronstam of Connolly Bove Lodge & Hutz: Last week, Vice Chancellor Noble of the Delaware Court of Chancery rendered this short opinion - in Henkel Corp. v. Innovative Brands Holdings...

Ryan II: Delaware Chancery Court Denies Interlocutory Appeal

Posted on September 04, 2008
Ryan II: Delaware Chancery Court Denies Interlocutory Appeal Last Friday, Vice Chancellor Noble of the Delaware Chancery Court issued a letter opinion in Ryan v. Lyondell, in which he denied the interlocutory appeal by the defendants - but did dismiss...

The Mad Rush: Changing Your Advance Notice Bylaws

Posted on September 03, 2008
The Mad Rush: Changing Your Advance Notice Bylaws Now that the Delaware Supreme Court has affirmed the Chancery Court's decision in Jana Partners (as well as the holdings in the Office Depot and CSX cases), as noted in this article,...

SEC Adopts Changes for Cross-Border Business Combinations, Exchange Offers and Rights Offerings

Posted on August 28, 2008
SEC Adopts Changes for Cross-Border Business Combinations, Exchange Offers and Rights Offerings Yesterday, the SEC approved a host of changes to the exemptions for M&A transactions and rights offerings at an open Commission meeting; here are opening remarks from Tina...

Recent DOJ Opinion Highlights FCPA Due Diligence in M&A

Posted on August 25, 2008
Recent DOJ Opinion Highlights FCPA Due Diligence in M&A Back in June, the Department of Justice published an advisory opinion regarding a US company’s approach to a corporate transaction under the Foreign Corrupt Practices Act. Although the DOJ’s guidance is...

Lyondell Directors Appeal

Posted on August 21, 2008
Lyondell Directors Appeal I seriously whacked out my back, so this blog suffers and all I can do is quote from Gordon Smith, one of the folks behind the "Conglomerate Blog": If you are following the Ryan case, which I...

Exploring "Strategic Alternatives" and Postponing Annual Meetings

Posted on August 05, 2008
Exploring "Strategic Alternatives" and Postponing Annual Meetings I recently was checking out Damien Park's new blog - "Activist Hedge Fund Investing" - and noticed the spotlight on Point Blank Solutions and how Steel Partners is chasing after them. In particular...

Potential Personal Liability for Directors: Selling the Company

Posted on August 01, 2008
Potential Personal Liability for Directors: Selling the Company Kudos to Francis Pileggi and his "Delaware Corporate and Commercial Litigation Blog" for highlighting a new Delaware Chancery Court case that exposed independent directors of a public company to personal liability in...

CSX/TCI: Vote Miscounting?

Posted on July 29, 2008
CSX/TCI: Vote Miscounting? I think we are gonna hear about more and more about this type of thing, shareholders complaining - and eventually litigating - over how votes are counted at shareholders' meetings. In the hotly contested deal involving CSX....

The Focus on Contractual Clarity

Posted on July 23, 2008
The Focus on Contractual Clarity This recent article from The Deal Newsweekly provides some insight into how private equity shops are pushing for language in their merger agreements that clearly state the target has no right to specific performance. And...

CA v. AFSCME: The Delaware Supreme Court Giveth and the Supreme Court Taketh Away

Posted on July 18, 2008
CA v. AFSCME: The Delaware Supreme Court Giveth and the Supreme Court Taketh Away Some pretty fine analysis - and quick - from Travis Laster: Yesterday, the Delaware Supreme Court issued its much anticipated decision in CA, Inc. v. AFSCME...

Mars-Wrigley Pending Acquisition: Are the "Strategics" Now Emulating the "Financials"?

Posted on July 14, 2008
Mars-Wrigley Pending Acquisition: Are the "Strategics" Now Emulating the "Financials"? From Cliff Neimeth of Greenberg Traurig: Here is the merger agreement for the Mar's pending acquisition of Wrigley. Query whether this is indicative of the new strategic purchaser mindset in...

The Delaware Supreme Court's AFSCME/CA Hearing: All the News Fit to Post

Posted on July 10, 2008
The Delaware Supreme Court's AFSCME/CA Hearing: All the News Fit to Post With a hearty thanks to J.W. Verret, our man on the ground during yesterday's Delaware Supreme Court hearing about the important issue certified from the SEC regarding AFSCME's....

Activists, Swaps & the SEC: A CSX Update

Posted on July 08, 2008
Activists, Swaps & the SEC: A CSX Update In this podcast, Ron Orol, Senior Writer for The Daily Deal, discusses activists, swaps and the SEC in light of the CSX decision, including: - Can you explain how activist fund managers...

Delaware Supreme Court: CA/AFSCME Certification Accepted and on Fast Track

Posted on July 02, 2008
Delaware Supreme Court: CA/AFSCME Certification Accepted and on Fast Track Yesterday, the Delaware Supreme Court accepted the questions certified to it by the SEC relating to the battle between CA and AFSCME over the proponent's binding bylaw proposal seeking reimbursement...

Corp Fin No-Action Relief for Busted Merger/Reorganization

Posted on July 01, 2008
Corp Fin No-Action Relief for Busted Merger/Reorganization Last week, Corp Fin posted this no-action letter - Barclays (Netherlands)(available 6/26/08) - which seems to be well within the line of "abandoned offering" 12h-3 letters. Usually they are for a busted IPO,...

Duty Of Disclosure: Delaware Chancellor Further Limits Availability of Damages

Posted on June 25, 2008
Duty Of Disclosure: Delaware Chancellor Further Limits Availability of Damages From Travis Laster: Last week, Delaware Chancellor Chandler - in In re Transkaryotic Therapies, Inc. - granted summary judgment in favor of three directors who were alleged to have breached...

Shareholder Rights Plans: Adding Derivatives to "Beneficial Ownership"

Posted on June 23, 2008
Shareholder Rights Plans: Adding Derivatives to "Beneficial Ownership" As noted in this WSJ article, at least two companies - Louisiana-Pacific Corp. (see related Form 8-K) and Micrel Inc. (see related Form 8-K) - have changed their shareholder-rights plans in recent...

Half of Sovereign-Wealth Fund Deals Involve Majority Stakes

Posted on June 19, 2008
Half of Sovereign-Wealth Fund Deals Involve Majority Stakes As noted in this recent WSJ article, according to a recent Monitor Group study, half of the investments by sovereign wealth funds since 2000 involved a more than 50% interest. 37% involved...

Corp Fin's No-Action Letter: Partial Tender Offers Under US and Israeli Law

Posted on June 16, 2008
Corp Fin's No-Action Letter: Partial Tender Offers Under US and Israeli Law Here is some analysis from Jim Moloney of Gibson Dunn: This recent no-action letter - Elron Electronics Industries - is unusual in that it relates to a partial...

The CSX Opinion is In!

Posted on June 12, 2008
The CSX Opinion is In! Yesterday, in CSX Corp. v. The Children's Investment Fund Management, Judge Lewis Kaplan of US District Court (SDNY) delivered his anxiously awaited opinion finding that the two plaintiff activist funds violated the securities laws by...

Disclosure of Internal Financial Projections

Posted on June 11, 2008
Disclosure of Internal Financial Projections From guest blogger Steve Haas of Hunton & Williams: A hot M&A issue of late has been the need to disclose internal financial projections under Delaware law. In 2002, the Court of Chancery in Pure...

Unsealed: Yahoo's Tin Parachute

Posted on June 09, 2008
Unsealed: Yahoo's Tin Parachute The media has had a field day ever since Delaware Chancery Court's Chancellor Chandler unsealed this amended complaint filed against Yahoo, particularly because Carl Icahn is involved as he pressures Yahoo to sell; see this DealBook...

SEC Staff Takes a Position in CSX Lawsuit

Posted on June 06, 2008
SEC Staff Takes a Position in CSX Lawsuit From Cliff Neimeth of Greenberg Traurig: In a pending litigation being watched closely by the public M&A bar, institutional activists and target issuers alike, this past Wednesday, in correspondence submitted by Corp...

Obama's "Incorporation Transparency Act" and The Shape of Things to Come

Posted on June 04, 2008
Obama's "Incorporation Transparency Act" and The Shape of Things to Come From guest blogger J.W. Verret, Assistant Professor, George Mason University School of Law: The Senate Permanent Investigations Subcommittee is considering a bill introduced a few weeks ago by Senators...

Goldman Sach Cancels a Deal: SPACs in Limbo?

Posted on May 29, 2008
Goldman Sach Cancels a Deal: SPACs in Limbo? With Goldman Sachs canceling its much-anticipated SPACs offering - through Liberty Lane - it looks like the bloom may be off the SPACs, rose (see this WSJ article from yesterday). Today's WSJ...

Sovereign Wealth Funds and Activism

Posted on May 28, 2008
Sovereign Wealth Funds and Activism In this podcast, Ron Orol, Senior Writer for The Daily Deal, discusses sovereign wealth funds, including: - What is a "sovereign wealth fund"? - How are they working with activist investors, particularly in a post-Dubai...

Sovereign Wealth Funds and Activism

Posted on May 21, 2008
Sovereign Wealth Funds and Activism In this podcast, Ron Orol, Senior Writer for The Daily Deal, The Deal and TheDeal.com and author of "Extreme Value Hedging: How Activist Hedge Fund Managers Are Taking on the World,"discusses sovereign wealth funds, including:...

SEC Approves NYSE's New SPAC Listing Standards

Posted on May 14, 2008
SEC Approves NYSE's New SPAC Listing Standards Last week, in this order, the SEC approved the NYSE's rule changes to make it easier for SPACs to be listed on the exchange. In addition to SPAC listings, the rule changes will...

Officers and Directors Not Considered "Passive" under Rule 13d

Posted on May 13, 2008
Officers and Directors Not Considered "Passive" under Rule 13d Recently, I received a question about an old blog about how officers and directors are not considered passive under Rule 13d. Jim Moloney of Gibson Dunn notes that one thing that...

SEC Proposes Changes to Cross-Border Rules

Posted on May 09, 2008
SEC Proposes Changes to Cross-Border Rules Yesterday, the SEC posted its 194-page proposing release related to the amendments to the cross-border rules, the first proposed changes to the rules since they were initially adopted in 1999. A departure from recent...

2008: The Year of the Hedge Fund Activist

Posted on May 06, 2008
2008: The Year of the Hedge Fund Activist Join us tomorrow for the webcast - "2008: The Year of the Hedge Fund Activist" - to learn about the latest strategies and tactics used by hedge fund activists, as well as...

Joint Bidding By Private Equity Firms: Federal Court Dismisses Private Antitrust Challenge

Posted on May 05, 2008
Joint Bidding By Private Equity Firms: Federal Court Dismisses Private Antitrust Challenge A few months ago, in the wake of the Department of Justice's inquiry into alleged anti-competitive behavior among private equity firms, a handful of class actions have been...

Exclusive Remedy Clauses and Extra-Contractual Disclaimers

Posted on May 02, 2008
Exclusive Remedy Clauses and Extra-Contractual Disclaimers Many thanks to Broc for inviting me to join the blog. I thought I’d use my first post to flag a new case out of Delaware - from the Superior Court, not the Court...

SEC Filing Fees: Going Way Up

Posted on May 01, 2008
SEC Filing Fees: Going Way Up In yesterday's fee rate advisory, the SEC announced that filing fees will be going up after October 1st (or whenever Congress approves the SEC's budget, which historically is significantly later than October 1st) to...

"Witches Brew": SEC Accuses Trader of Rumormongering on Deal

Posted on April 29, 2008
"Witches Brew": SEC Accuses Trader of Rumormongering on Deal As noted in this NY Times article on Friday (and this Wilson Sonsini memo), the SEC settled a case with a former securities who allegedly spread false rumors to profit from...

JPMorgan Chase/Bear Stearns: Splicing the Delaware Issues

Posted on April 28, 2008
JPMorgan Chase/Bear Stearns: Splicing the Delaware Issues Tune in tomorrow for our webcast - "JPMorgan Chase/Bear Stearns: Splicing the Delaware Issues" - during which Professors Elson, Cunningham and Davidoff will analyze the novel Delaware issues presented by the Bear Stearns...

CFIUS Proposes New Regulations on Foreign Investments

Posted on April 24, 2008
CFIUS Issues Proposed Regulations On Monday, the Department of the Treasury's Committee on Foreign Investment in the United States (“CFIUS”) issued proposed regulations governing national security reviews of foreign investments in US companies. The proposed regulations – issued to implement...

Corp Fin's New M&A Chief: Michele Anderson

Posted on April 17, 2008
Corp Fin's New M&A Chief: Michele Anderson Congrats to Michele Anderson, who was promoted to Corp Fin's new Chief of the Office of Mergers & Acquisitions. Most recently, Michele served as a Legal Branch Chief in the Office of Telecommunications...

Delaware Court of Chancery Permits Insurgent To Nominate Short Slate

Posted on April 16, 2008
Delaware Court of Chancery Permits Insurgent To Nominate Short Slate On Monday, the Delaware Court of Chancery ruled on another advance by-law case (here is a blog about the other case). Here is some analysis from Travis Laster: If the...

'08 Shaping Up as Boom Year for Proxy Battles

Posted on April 14, 2008
'08 Shaping Up as Boom Year for Proxy Battles This recent Chicago Tribune article quotes Pat McGurn of RiskMetrics noting that the number of dissident shareholder demands tracked so far this year are the highest ever. The article notes that...

Delaware Chancery Court Doesn't Meddle in Bear Stearns Deal (In Favor of New York Proceeding)

Posted on April 11, 2008
Delaware Chancery Court Doesn't Meddle in Bear Stearns Deal (In Favor of New York Proceeding) From Travis Laster: On Wednesday, Vice Chancellor Parsons of the Delaware Court of Chancery stayed an action filed in Delaware to enjoin the Bear Stearns-JPMorgan...

Delaware Chancery Court Denies Preliminary Injunction Based on Inadequate Disclosure in Merger Proxy Regarding Financial Analyses (and Other Matters)

Posted on April 07, 2008
Delaware Chancery Court Denies Preliminary Injunction Based on Inadequate Disclosure in Merger Proxy Regarding Financial Analyses (and Other Matters) From Kevin Miller of Alston & Bird: In this decision by Vice Chancellor Lamb, the Delaware Chancery Court denied a motion...

News from the Tulane Institute

Posted on April 04, 2008
News from the Tulane Institute The annual Tulane University Corporate Law Institute is always a big M&A Conference. I'm not there myself this year, but the NY Times' DealBook is carrying regular coverage of the proceedings. Great stuff! And here...

Bear Stearns Deal Under Scrutiny

Posted on April 02, 2008
Bear Stearns Deal Under Scrutiny With the 212-page Blueprint Paulson Report adding fuel to the fire over how the government should handle the credit crunch, more and more critics are emerging over the Federal Reserve's role in the JPMorgan Chase/Bear...

Nasdaq Revises Its SPAC Listing Proposal

Posted on March 25, 2008
Nasdaq Revises Its SPAC Listing Proposal Last week, the Nasdaq revised its proposed rule change regarding SPACs that it originally filed a few weeks ago. Under the revised proposal, SPACs would not be required to use cash in completing a...

German Federal Cartel Office Orders the Unwinding of an Acquisition

Posted on March 17, 2008
German Federal Cartel Office Orders the Unwinding of an Acquisition From Sullivan & Cromwell: "On February 28th, the German Federal Cartel Office prohibited the acquisition of a 13.75% shareholding in Norddeutsche Affinerie AG by A-TEC Industries AG. Despite falling short...

Goldman Sachs to Try New Brand of SPACs

Posted on March 14, 2008
Goldman Sachs to Try New Brand of SPACs The WSJ reports that Goldman Sachs will finally enter the roaring SPACs field - but will do so that is more "shareholder friendly." Check out this DealBook article - as well as...

March-April Issue: Deal Lawyers Print Newsletter

Posted on March 13, 2008
March-April Issue: Deal Lawyers Print Newsletter This March-April issue of the Deal Lawyers print newsletter was just sent to the printer and includes articles on: - 2008: The Year of the Activist Hedge Fund - How to Settle Insurgencies and...

NYSE Files Proposal to Allow the Listing of SPACs

Posted on March 11, 2008
NYSE Files Proposal to Allow the Listing of SPACs From Davis Polk: "Following a similar move by the Nasdaq Stock Market last week, the NYSE has filed a proposed rule change with the Securities and Exchange Commission that contains a...

The New Business Combination Accounting

Posted on March 10, 2008
The New Business Combination Accounting As I learn more about the impact the FASB's new business combination rules on deals, I truly believe that this is the "sleeper" of the year. Did you know that lawyers won't be able to...

Genesco Delays Trial Ahead of (Costly) Settlement

Posted on March 05, 2008
Genesco Delays Trial Ahead of (Costly) Settlement Below is an article that recently ran in the NY Time's DealBook (here is the Genesco press release): Genesco and Finish Line appear to have reached an armistice in their battle over a...

Turning Around Troubled Companies

Posted on March 03, 2008
Turning Around Troubled Companies Jim Thornton, CEO of Provo Craft and Novelty, saved this company from bankruptcy by growing revenue to $200 million, a 38% increase in two years with an improvement of 227% in EBITDA. For example, he turned...

Rejecting Merger Proposal/Approving Reclassification: Delaware Chancery Court Dismisses Breach Claims

Posted on February 27, 2008
Rejecting Merger Proposal/Approving Reclassification: Delaware Chancery Court Dismisses Breach Claims From Kevin Miller of Alston & Bird: A few weeks ago - in Gantler v. Stephens - Vice Chancellor Parsons granted defendants' motion to dismiss claims alleging that certain directors...

The Nasdaq Proposes to List SPACs

Posted on February 26, 2008
The Nasdaq Proposes to List SPACs Last week, the Nasdaq Stock Market issued this proposal to create new listing standards that will relate to special purpose acquisition companies. Previously, even if a SPAC met Nasdaq's market and financial initial listing...

An Important New Fairness Opinion Decision

Posted on February 25, 2008
An Important New Fairness Opinion Decision Last week, the US Court of Appeals for the Seventh Circuit - in The HA2003 Liquidating Trust v. Credit Suisse Securities - affirmed the decision of US District Court for the Northern District of...

Class Action Lawsuit Filed re: Private Equity Bid Rigging

Posted on February 20, 2008
Class Action Lawsuit Filed re: Private Equity Bid Rigging Kevin Miller of Alston & Bird notes: Last Thursday, a class action complaint was filed in the US District Court for the District of Massachusetts against 16 private equity funds. The...

Investor Activism Tops Last Year's Record Pace

Posted on February 19, 2008
Investor Activism Tops Last Year's Record Pace Kaja Whitehouse of the WSJ wrote this article on Saturday: "Efforts by activist investors to fight for board seats, oppose mergers and otherwise shake up companies are on track to beat last year's...

The "Forthright Negotiator Principle"

Posted on February 12, 2008
The "Forthright Negotiator Principle" From Kevin Miller of Alston & Bird: For those unfamiliar with the "Forthright Negotiator Principle" referred to in the URI decision, I came across the following in re-reading the In re: IBP, Inc. Shareholders Litigation decision:...

A New York (and Bankruptch) Market MAC Case: Solutia Seeks Specific Performance or $2.25 billion

Posted on February 11, 2008
A New York (and Bankruptcy) Market MAC Case: Solutia Seeks Specific Performance or $2.25 billion With our "MAC Clauses: All the Rage" webcast coming up next week, Kevin Miller of Alston & Bird notes a new case: Recently we have...

VC Strine Blesses Accommodation with Dissident Shareholder - But Emphasizes Need for Disclosure

Posted on February 07, 2008
VC Strine Blesses Accommodation with Dissident Shareholder - But Emphasizes Need for Disclosure Here is some analysis of a recent Delaware case from Davis Polk & Wardwell: In light of surging shareholder activism, boards and issuers may be interested in...

Guttman v. McGinnis (or Netsmart Through the Looking Glass)

Posted on February 04, 2008
Guttman v. McGinnis (or Netsmart Through the Looking Glass) From Kevin Miller of Alston & Bird: A couple of weeks ago, Vice Chancellor Lamb of the Delaware Chancery Court ruled on a Motion to Schedule a Preliminary Injunction Hearing and...

Financial Advisor Disclosure: Globis Partners v. Plumtree

Posted on January 30, 2008
Financial Advisor Disclosure: Globis Partners v. Plumtree From Kevin Miller of Alston & Bird: In a recent Delaware Chancery Court decision - Globis Partners v. Plumtree - the court granted defendants' motion to dismiss claims alleging, among other things, that...

January-February Issue: Deal Lawyers Print Newsletter

Posted on January 28, 2008
January-February Issue: Deal Lawyers Print Newsletter This January-February issue includes articles on: - Fairness Opinions after Revised NASD Rule 2290: Models & Analysis - Navigating a Loan-to-Own Transaction: 11 Steps - Practical Guidelines for Special Committees - Perspectives from an...

The FTC's New HSR Filing Thresholds (and Recent Enforcement Actions)

Posted on January 24, 2008
The FTC's New HSR Filing Thresholds (and Recent Enforcement Actions) Last week, the Federal Trade Commission - the agency charged with administering the Hart-Scott-Rodino Act - approved the new annual HSR Act notification thresholds, by nudging them up a little...

IASB Adopts Business Combination Accounting Changes

Posted on January 18, 2008
IASB Adopts Business Combination Accounting Changes As noted in this press release, the IASB completed the second phase of its business combinations project last week by issuing a revised version of IFRS 3 and an amended version of IAS 27....

Is Wall Street Trading Ahead of Deals They Are Advising?

Posted on January 15, 2008
Is Wall Street Trading Ahead of Deals They Are Advising? Yesterday's WSJ ran this provocative article about a recent study that suggests that some investment banks are trading on deals they are working on - before the deals are announced....

More on the Recent MAC Clause Cases

Posted on January 14, 2008
More on the Recent MAC Clause Cases There continues to be a lot of commentary regarding the recent decision in the Finish Line/UBS Securities LLC litigation, decided by the Tennessee Court of Chancery (Chancellor Ellen Hobbs Lyle). We have posted...

ABA's "2007 Strategic Buyer/Public Target Deal Points Study"

Posted on January 09, 2008
ABA's "2007 Strategic Buyer/Public Target Deal Points Study" A few months ago, the Committee on Negotiated Acquisitions of the American Bar Association’s Section of Business Law released its "2007 Strategic Buyer/Public Target M&A Deal Points Study." We have posted a...

The SEC Is Looking for a New M&A Chief

Posted on January 04, 2008
The SEC Is Looking for a New M&A Chief Corp Fin has posted the job opening (if you click this, give it a few seconds to go to the posting) for the spot vacated by Brian Breheny - Chief of...

Tennessee Court Orders Specific Performance to Complete Acquisition

Posted on January 03, 2008
Tennessee Court Orders Specific Performance to Complete Acquisition Last week - just after a Delaware court denied specific performance in the Cerberus–United Rentals decision - an opposite conclusion was found in Genesco v. Finish Line, 07-2137, Chancery Court for the...

SEC's Registration Filing Fees Finally Set for '07-'08

Posted on December 28, 2007
SEC's Registration Filing Fees Finally Set for '07-'08 As noted in this press release/fee rate advisory #6 issued yesterday, President Bush signed the appropriations bill that includes funding for the SEC on December 26th. As a result, effective December 31st,...

URI v. Ram Post-Trial Opinion: No Specific Performance

Posted on December 26, 2007
URI v. Ram Post-Trial Opinion: No Specific Performance On Friday, in this post-trial opinion, Chancellor Chandler holds that URI cannot compel specific performance of its merger agreement with the RAM entities, which are acquisition subsidiaries for Cerberus...

URI v. RAM: Chancellor Rules Parts of Expert Report Inadmissible

Posted on December 18, 2007
URI v. RAM: Chancellor Rules Parts of Expert Report Inadmissible In our "M&A Litigation" Portal, we have posted a copy of this 3-page ruling from Chancellor Chandler in the URI case in which he ruled that significant parts of an...

KPMG's 1600 Investment Bankers

Posted on December 13, 2007
KPMG's 1600 Investment Bankers According to these league tables, KPMG is a leading middle market financial adviser - with 1,600 investment bankers - operating in 52 countries. Apparently, KPMG’s Corporate Finance practice has ranked first or second on the M&A...

Best Ever? Choice of Law Clause

Posted on December 12, 2007
Best Ever? Choice of Law Clause An "oldie, but goodie" from the "Above the Law" Blog: An associate at an LA law firm sent us the following language, found in the governing law/disputes section of a software license agreement: "This...

More on URI's Request for Specific Performance

Posted on December 06, 2007
More on URI's Request for Specific Performance Back on Monday, I blogged some analysis from Kevin Miller of Alston & Bird about why deference is not generally appropriate when granting extraordinary permanent relief such as specific performance. Then, in his...

The FASB/IASB Convergence Begins: New FAS 141(R)

Posted on December 05, 2007
The FASB/IASB Convergence Begins: New FAS 141(R) On Tuesday, the FASB issued FAS 141(R), Business Combinations. Here is an excerpt from the FASB's press release: "The new standards represent the completion of the FASB’s first major joint project with the...

URI's Request for Specific Performance: The Elephant in the Room

Posted on December 04, 2007
URI's Request for Specific Performance: The Elephant in the Room From Kevin Miller of Alston & Bird: With the recent spate of busted buyouts, the legal and financial community - as well as the press - have devoted significant time...

"Walk Away" Numbers

Posted on November 28, 2007
"Walk Away" Numbers Another gem from Mark Borges' Blog: Following my post last month concerning the difference between the estimated total compensation that an executive will receive when he or she leaves a company (the so-called "walk away" number) and...

Analysis: Cerberus/United Rentals MAC Clause Dispute

Posted on November 26, 2007
Analysis: Cerberus/United Rentals MAC Clause Dispute Geoffrey Parnass gives us the following thoughts from his blog - "PrivateEquityLawReview.com" - about the Cerberus/United Rentals spat: Does Cerberus have the unilateral right to walk away from its deal with United Rental and...