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Insider Trading in India
Posted on November 21, 2009Here's a relatively recent empirical study of insider trading in India in advance of merger announcements, Merger Announcements and Insider Trading in India: An Empirical Investigation. Shorter version: insider trading is rampant. Don't be surprised. It's apparently rampant here...
eBay/Skype: RIP
Posted on November 21, 2009eBay announced on Thursday that it closed its sale of Skype. The buyer, who will control an approximately 70 percent stake, is an investor group led by Silver Lake and includes Joltid Limited and certain affiliated parties, the Canada Pension...
B&N's Pill
Posted on November 19, 2009On Tuesday the board of Barnes and Noble adopted a shareholder rights plan -- or a poison pill. From the board's announcement: The Board adopted the Rights Plan in response to the recent rapid accumulation of a significant portion of...
Internal Poison Pills
Posted on November 18, 2009Geis has an article, Internal Poison Pills, appearing in the current NYU Law Review that thinks about the relationship between majority and minority shareholders. The article argues that a version of the shareholder rights plan can be used to constrain...
Google Scholar (Legal)
Posted on November 18, 2009Google Scholar has just gotten better. It now includes legal opinions and law review articles. -bjmq
3Com-HP Lawsuit
Posted on November 17, 2009You know what they say ... it's not a real deal unless there's a lawsuit. Well, the 3Com/HP deal has its first lawsuit. The $2.7 billion all cash deal was announced last week. Here's the merger agreement. Given that it's...
AOL Spinoff Approved, Set for Dec 9
Posted on November 17, 2009Our long, national deal-nightmare is over. AOL amended its Form 10 again, inserting dates into all the agreements. The record date for the spin off is now set for November 27, 2009. Here's the letter to Time Warner shareholders: We...
Reimbursement Policies for Shareholder Proxy Nominations
Posted on November 16, 2009HealthSouth Corp. recently announced a policy to reimburse shareholder initiatives relating to shareholder nominations for the election of directors: Board of Directors has authorized the Company to amend its bylaws to adopt procedures relating to shareholder nominations for the election...
Merck Stock Swap Confusion
Posted on November 14, 2009As you'll remember, Merck structured its recent acquisition of Schering-Plough as a ?reverse merger? in order to prevent a change of control provisions in Schering?s joint venture with J&J from being triggered and thereby lose control over the venture?s hit...
Bad Faith, Not in Good Faith...Tomato, Tomahto
Posted on November 13, 2009In Amirsaleh v. Board of Trade of The City of New York, Inc, Chancellor Chandler takes up the heavy burden of politely explaining the Delaware corporate law to the Supreme Court. I apologize for posting such a long quotation, but...
Board Connections and M&A
Posted on November 12, 2009I like this paper, Board Connections and M&A Transactions. It lets me explore my inner Glenn Beck. I mean, it shouldn't be all that surprising that in transactions where the target and the acquirer share board members that there should...
Simple Theory of Takovers
Posted on November 11, 2009Continuing the theme of comparative takeover regulation: here's a new paper, A Simple Theory of Takeover Regulation in the United States and Europe, from Ferrarini and Miller forthcoming in the Cornell International Law Journal investigating a federal approach to takeover...
3Com Options Trading...More Insider Trading?
Posted on November 11, 2009OK, it's almost too much to bear. Someone stop the madness. Bloomberg is reporting that 3Com options were trading at records volumes and a 26-month high just prior to today's announcement of 3Com's acquisition by HP. Almost 4,000 of the...
Mandatory Rules in the Takeover Market, A Lesson from Down Under
Posted on November 10, 2009The UK-styled approach to takeover regulation relies heavily (although not exclusively) on brightline rules for delimiting what is permitted in the context of an offer and a response to an offer. The upside of this structure is that it leaves...
Valero adopts Say-on-Pay Policy
Posted on November 10, 2009It's officially a trend! In response to a say-on-pay campaign Valero announced yesterday that it was adopting a 'say-on-pay' policy joining Pfizer. Apparently shareholders at more than 110 companies are considering say-on-pay resolutions this proxy season...
Subramanian, et al on Delaware's Antitakeover Statute
Posted on November 09, 2009Some of you might have been recently been on the receiving end of a surprisingly caustic "Marty-gram" attacking an academic paper. Let's see, if I remember correctly, it started something like this: Academic empirical legal analysis, when not coupled with...
Choice of Forum and State Competition
Posted on November 09, 2009Prof. Faith Stevelman's paper, Regulatory Competition, Choice of Forum and Delaware's Stake in Corporate Law, now appearing in the Delaware Journal of Corporate Law takes on a version of the state competition argument. Her take on it is focuses on...
IPOs versus Acquisitions: An Empirical Analysis
Posted on November 07, 2009The IPO versus acquisition exit is a continuing area of interest: Why go sell when you can go public at a higher valuation? My first reaction is that if you sell, you can then head off to Hawaii the next...
"Artie" was right to be spooked
Posted on November 06, 2009Don't trade options. Yes, that's right, but it turns out these guys weren't as smart as they thought. Best not to share confidential information about your client's transaction with anyone. From the DOJ's criminal complaint: At one point defendant Drimal...
More Bad Lawyers...
Posted on November 06, 2009The Galleon case takes more scalps. From the SEC's litigation release. The Securities and Exchange Commission today announced insider trading charges against nine defendants in a case involving serial insider trading by a ring of Wall Street traders and hedge...
Schapiro on Shareholder Access
Posted on November 05, 2009SEC Chair Mary Schapiro's address (yesterday) to the PLI on shareholder voting and proxy access is here. Her thoughts on shareholder access (in part): Corporate governance, after all, is about maintaining an appropriate level of accountability ? accountability to shareholders...
Takeover Panel and Arsenal
Posted on November 05, 2009I think I've said before that I love takeovers of sports teams - mostly because it let's me read the sports pages on company time. Well, there's a bit of a to-do brewing in the Uk over Denver-based businessman Stan...
Grundfest on Shareholder Access
Posted on November 04, 2009Joe Grundfest fo Stanford has a new paper on the SEC's shareholder access proposal, The SEC's Proposed Proxy Access Proposal: Politics, Economics, and the Law. Abstract: The Securities and Exchange Commission has proposed proxy rules mandating shareholder access under conditions...
13(d) and 13(g) Staff Interpretations
Posted on November 04, 2009The new SEC staff interpretations (September 19, 2009 update) on 13(d) and 13(g) and a not so random selection of one of the Q&A's have been posted. They're worth reviewing if these questions have kept you up at night. Question:...
Derivatives, Complexity, and Asymmetric Information
Posted on November 03, 2009Arora, et al have a paper, Computational Complexity and Information Asymmetry in Financial Products, which concludes that the complexity of financial derivatives due in part to the complicated structure of many derivatives, the sheer volume of financial transactions, the need...
VC Laster's First Days
Posted on November 03, 2009Vice Chancellor Laster's first days on the job and an informative backgrounder of the Chancery's newest vice chancellor: Vice Chancellor J. Travis Laster strode down the hallway used by judges in Delaware's Court of Chancery like an old hand on...
Bad Lawyers
Posted on November 02, 2009This is a story with sad endings all around. Last week, the SEC charged Canadian lawyer, Stanko Grmovsek with insider trading. Here's the SEC's complaint. The complaint alleges that Grmovsek was involved in a 14 year long conspiracy with his...
Mergers and Acquisitions in the Cosmos
Posted on November 01, 2009I wonder if there is a statutory shareholder vote for any of these transactions? Do I get appraisal rights if I vote no? -bjmq
Oracle withdraws Russian Antitrust Filing re Sun
Posted on October 31, 2009That's according to eWeek and the English translation of a notice from the Russian Antritrust authority. I have no idea why Oracle would pull its pre-merger approval application. The "reasonable best efforts" language in the merger agreement would suggest that...
Pfizer gives shareholders "say-on-pay"
Posted on October 30, 2009Pfizer is kind of forward-looking when it comes to these kinds of governance issues. By that I mean - they get pushed, they resist, then they rethink their position. Last time around they adopted a majority-voting policy very early on....
Dealmaker of the Week
Posted on October 30, 2009Congratulations to my partner, Monica Shilling for being named Dealmaker of the Week by AmLaw Daily. As the story notes, in a complex M&A transaction involving "a multitude of players," including lawyers from Proskauer, Latham, S&C, Sutherland, Venable, and Wilkie...
Keep It Simple
Posted on October 30, 2009So you graduated with a fancy law degree and picked up some Latin phrases that you can use to impress dates and pass the Bar (congratulations, by the way). But guess what, the SEC wants none of it in your...
Assessing the Chrysler Bankruptcy
Posted on October 29, 2009Mark Roe and David Skeel have a new paper, Assessing the Chrysler Bankruptcy. In the paper they argue that the Chrysler 363 sale pushes us back to the practices of the 19th century - those were some pretty dark days...
Wachtell's 2009 Proxy Season Review and Look Ahead
Posted on October 29, 2009...is available on the NY Law Journal's site, here. -bjmq
AOL Spin-off Update
Posted on October 28, 2009Time Warner recently filed an amendment to its Form-10 which includes and Information Statement describing the overall transaction. To accomplish the spin-off, Time Warner will, following the reorganization, distribute all of its equity interest AOL to Time Warner shareholders on...
Night School?
Posted on October 28, 2009Umm...I don't care if it's on the front page of today's NY Times, this is one academic trend that I am not interested in following: BOSTON ? Winston Chin hustles on Tuesdays from his eight-hour shift as a lab technician...
The Warning
Posted on October 28, 2009This is worth watching if you missed it when it ran earlier this week.
Forstmann on Future of Wall St.
Posted on October 28, 2009Teddy Forstmann and Charlie Gasparino on the financial crisis, executive compensation, corporate risk taking and the future of Wall St.
PE in Vietnam
Posted on October 27, 2009Yesterday, the FT carried a piece announcing that TPG would be investing $35 mln in a private Vietnamese company, Masan Group. I'm noting this for a couple of reasons. First, I have a long-standing personal/professional interest in things that happen...
Dodgers Cat-Fight in the Works
Posted on October 26, 2009I like sales of sports teams. It's one of the few times I can read the sports pages and still pretend to be working. That said, the pending divorce of Dodgers owner Frank McCourt from his wife, Jamie, is shaping...
Say on Pay - Great White North Edition
Posted on October 26, 2009According to the Canadian Globe and Mail, say-on-pay is voluntarily sweeping Canada's financial services industry: Canada's nine largest financial services companies have reached an agreement to give shareholders a vote next year on the same resolution approving the firms' compensation...
BAC-ML: More E-Mail
Posted on October 25, 2009OK, so now that BAC has started turning over internal e-mails to the House Committee on Oversight, it's not looking so good ... especially for the lawyers. Law.com/Corporate Counsel has had access to the e-mail and it's quite a tangled...
Grading Google
Posted on October 25, 2009Talk about a serial acquiror, over at Silicon Alley Insider they've assembled a list of 52 of Google's recent acquisitions. Silicon Alley Insider has done us all a service by grading Google's efforts. The grades are decidedly mixed - an...
Australian Takeovers Panel
Posted on October 23, 2009The Australian Takeovers Panel is presently seeking comment on a rewrite of their procedural rules. The Takeover Panel there is modeled on the UK Takeover Panel. Comments are due by October 26! In May, the Takeovers Panel began to revisit...
Oracle Fiddling While Sun Burns?
Posted on October 22, 2009MySQL, an afterthought in Oracle's decision to buy Sun last April has turned into a major obstacle with the EU Competition Commission standing in the way over the fate of the technology. According to PC World representatives from Oracle met...
Bulow and Klemperer on Auctions
Posted on October 21, 2009Jeremy Bulow and Paul Klemperer have a new paper out in the current issue of the American Economic Review, Why Do Sellers (Usually) Prefer Auctions?. Here's the abstract: We compare the most common methods for selling a company or other...
Reuters Interview with Vice Chancellor Laster
Posted on October 19, 2009Reuters sat down with the newest Vice Chancellor. His thoughts on the financial crisis: "With the crash in the banking system still ringing loud in everyone's ears," said Laster. "If there was ever a moment where a politically sensitive Delaware...
Business Week-Bloomberg
Posted on October 17, 2009Just realizing that this website is apparently worth more than Business Week. I'm not sure how I feel about that. -bjmq
Don't Lie to the Feds
Posted on October 16, 2009OK, so here's some more unsolicited advice: don't lie to the Feds. If they're calling you and asking about your trades, there's a reason. That's especially true if you have been engaging in insider trading in connection with a merger...
Bruce Wasserstein, 1947-2009
Posted on October 15, 2009Bruce Wasserstein was one of "Nader's Raiders." Who knew? The Times has an obituary, as does the WSJ. -bjmq
Triggering Revlon Duties
Posted on October 15, 2009It's a recurring question. We know that an all cash transaction will constitute a change of control and thus require directors attempt to get the highest price reasonably available for the benefit of target shareholders. A stock-for-stock deal where the...
Williamson and Deals
Posted on October 13, 2009I think it?s great that Oliver Williamson was awarded the Nobel Prize in Economics with Elinor Ostrom. Williamson?s work in organizational economics and transaction-cost economics goes to the heart of why and how private actors form firms, vertically integrate and...
?This is a stew of great complexity?
Posted on October 13, 2009The BAC-ML legal stew continues to simmer. In the SEC-BAC case, parties are gearing up for trial and BAC has signaled its intention to waive the attorney client privilege. Remember, in the federal case, BAC is arguing, in effect, that...
This Time is [Not] Different
Posted on October 13, 2009Just finished reading Carmen Reinhart and Kenneth Rogoff's This Time is Different. This book isn't intended to provide the details to answer the question what happened to us last year. Rather, the book is intended to take three steps back...
Pre-Merger Notification in Japan
Posted on October 12, 2009Jones Day's overview of pre-merger notification rules in Japan. -bjmq
Vice Chancellor Laster Interview
Posted on October 10, 2009Francis Pileggi at the Delaware Corporate and Commercial Litigation blog posted an interview with Vice Chancellor Travis Laster. Drop by and get to know the new Vice Chancellor. -bjmq
SEC Charges Insider in EMC-DOCX Deal
Posted on October 09, 2009Here's the SEC's complaint. DOCX executives asked Xie in late November 2007 to participate in a meeting with EMC representatives concerning a plan to further extend the pre-existing partnership between EMC and DOCX. DOCX executives asked Xie to compile information...
Social Networks and Vertical Integration in the Laundry Business
Posted on October 09, 2009In the category of "deals"-like things to read, here's a new paper on social networks and vertical integration in the laundry business - Airing Your Dirty Laundry. I love these kinds of papers mostly because they use a framework that's...
UK Competition Commission Rules Against Ticketmaster-Live Nation Deal
Posted on October 08, 2009Apparently, The Boss has fans in the UK. According to the WSJ, the Competition Commission, the UK antitrust regulators, are moving to hold up the Ticketmaster-Live Nation transaction. The Competition Commission issued a statement today ruling against the merger: Ticketmaster...
Hamermesh and Wachter on Rationalizing Appraisal Standards
Posted on October 08, 2009Now appearing in the current issue of the Boston College Law Review: How does one measure the fair value of a corporation when a controlling shareholder squeezes out the minority interest? Professor Lawrence A. Hamermesh, of Widener University, and Professor...
DGCL 220 Books and Records Action
Posted on October 07, 2009In City of Westmoreland Police & Fire Retirement System v. Axcelis, Inc. the plaintiffs attempted to use a section 220 books and records demand to get Axcelis' board to turn over board minutes and materials relating to the board's decision...
Dealbook Dialogue
Posted on October 06, 2009If you've not dropped by there yet, the Dealbook Dialogue's discussion of the financial crisis is worth reading this week - Steven Davidoff, Gary Gorton, Vice Chancellor Leo Strine, Howard Marks, so far with more to come. -bjmq
World Markets and M&A
Posted on October 06, 2009Continuing the international M&A theme from last week, here's an interesting new paper from the National Bureau of Economic Research by Isil Erel, Rose C. Liao, and Michael S. Weisbach, World Markets for Mergers and Acquisitions. Turns out that geography...
Flip This House: PE Edition
Posted on October 05, 2009It's post-bust stories like that of Simmons in today's NY Times that really make one want to rethink how we do things. The CEO walks away from this bankrupt private equity invested company with $40 million in cash, while employees...
Federal Judge Reviewing Diebold Sale
Posted on October 05, 2009Early last month Diebold announced that it had sold its Premier Election Solutions, Inc. sub to Election Systems & Software (links are to their respective press releases announcing that the transaction had closed). The sale was small - $5 million...
GM: Saturn Sale Collapses
Posted on October 01, 2009The proposed sale of GM's Saturn division to Penske has collapsed and it looks like the Saturn brand will head for the dust-bin. That's too bad. They had a great one price concept, but "corporate" never really set them free...
No Big Deal: GM & Chrysler
Posted on September 30, 2009Stephen Lubben at Seton Hall has a new paper, No Big Deal: The GM and Chrysler Cases in Context in which he takes on the critics of the government's intervention into GM and Chrysler. It's well worth reading. Abstract: Almost...
Sina and Focus Media Drop Deal and then Issue Stock
Posted on September 30, 2009The FT is reporting today that two NASDAQ-listed Chinese companies, Sina Corp and Focus Media, are walking away from their proposed $1.7 billion sale of substantially all Focus Media's assets to Sina because the Chinese Ministry of Commerce refused to...
Hummer: The Last Word
Posted on September 29, 2009September has come and gone and I've decided that I'm tired of waiting for the Hummer "deal". For reasons I've already stated, I don't think it will ever get done - even if both sides still say they're close to...
CF - Terra - Agrium Saga Continues
Posted on September 29, 2009The Deal Professor has been following what he aptly calls "The Forever War" more closely than I, but I thought the recent developments worth commenting on, if briefly. CF Holdings filed a Schedule 13D yesterday announcing that is has acquired...
One Year Later: Financial Regulation
Posted on September 28, 2009Three things worth reading/listening to: 1) Ezra Klein interviews Barney Frank on the future of financial regulation. 2) Last week Roberta Karmel of Brooklyn Law School sat down with Joe Stiglitz and Jesse Eisinger to talk about the future of...
Plural and Majority Voting
Posted on September 28, 2009Today's WSJ has a good article on the beauties of plural voting for directors. The machinations of corporate voting can be hard for normal people to understand. In fact, when I introduce corporate voting to my introductory corporations classes, I...
Fan and Yu on debt and the market for corporate control
Posted on September 25, 2009Qiu and Yu's The Market for Corporate Control and the Cost of Debt is appearing in the current Journal of Financial Economics. Here's the abstract: Abstract: How do bondholders view the existence of an open market for corporate control? Between...
Survey of Senior M&A Executives
Posted on September 24, 2009Key findings of Nixon Peabody's senior executive M&A survey include: Mid-market deals under $250 million are expected to dominate over the next 12 months, with the industrial and financial services segments most likely to generate the highest volume of opportunities...
Perot Systems Employee Charged With Insider Trading
Posted on September 24, 2009...well, that was quick. From the SEC's litigation release this morning: The SEC alleges that [Reza] Saleh made increasingly large purchases of Perot Systems call options contracts based on material, non-public information that he learned in the course of his...
Travis Laster Confirmation Hearing
Posted on September 23, 2009From yesterday's confirmation hearing as reported by the Sussex Countian: ?For the past 13 years the vast majority of my practice has been before the Court of Chancery,? he said, adding that he understands not only the legal precepts that...
Adams Analyzes the Oracle/Sun Agreement
Posted on September 23, 2009Ken Adams makes his case for better drafting of merger agreements, using last Spring's Oracle/Sun transaction as an example. Here's the agreement so you can follow along. -bjmq
Perot Systems Option Trading Raises Questions
Posted on September 22, 2009By way of warning, I tell students in my Acquisitions Workshop that it's always a bad to start your legal career by engaging in insider trading. Then we launch into a discussion of the David Li (News Corp/WSJ case) and...
Massa and Zhang on Cosmetic Mergers
Posted on September 22, 2009Massa and Zhang's Cosmetic Mergers: The Effect of Style Investing on the Market for Corporate Control is appearing in the current Journal of Financial Economics. Here's the abstract. Abstract: We study the impact of ?style investing? on the market for...
Travis Laster Confirmed to Chancery Court
Posted on September 22, 2009Congratulations to Vice Chancellor J. Travis Laster on his confirmation this afternoon. -bjmq
Air Coming Out of Marvel Acquisition?
Posted on September 21, 2009I hope no one over at Disney was really surprised when Marvel received 45 copyright termination notices from the family of Jack Kirby last Wednesday. I mean, even I, if prodded, remember that there was bad blood between Marvel and...
Legal Scholarship and Contractual Complexity
Posted on September 20, 2009Over at the Conglomerate, guest blogger Afra Afsharipour has a couple of posts (here and here) dealing with the sparseness of legal scholarship on contractual complexity. Prof. Afsharipour, who practiced as a corporate lawyer for seven years before she began...
Business and Tax Law Prof's Wanted - Boston College
Posted on September 19, 2009BC is hiring! Here's the ad: Boston College Law School expects to make faculty appointments in subject areas that are likely to include: business law (corporations, securities regulations, corporate finance, mergers and acquisitions, accounting for lawyers), tax law, and family...
Colbert on Corporate Speech
Posted on September 18, 2009And here's the thing - he's right on Santa Clara County v Southern Pacific Railway! Hooray for smart corporate/constitutional comdey. -bjmq
Post- Closing Purchase Price Adjustments
Posted on September 18, 2009Agreements to purchase private companies often include a post-closing purchase price adjustment (generally based on closing working capital versus some agreed upon target). In an effort to ascertain current market practice, White & Case surveyed 87 private company purchase agreements...
Media Ownership Rules Pop Up as an Issue
Posted on September 18, 2009With the current state of the economy, creditors are being forced to think about taking equity positions in debtors. In most sectors that doesn't present a problem, but an article in today's WSJ points to the media sector where this...
CVS Gets Another Look
Posted on September 17, 2009A number of members of Congress and pressure groups have apparently started pushing the FTC to give the CVS/Caremark merger from two years ago another look. This reminds me of a question a student raised in my M&A class last...
Be careful out there
Posted on September 17, 2009Cautionary tales about catastrophic typos, due diligence errors and the like help focus the senses. Here?s one from Law Shucks: One of the primary responsibilities of junior M&A associates in due diligence is to review material contracts for assignability and...
Gods at War
Posted on September 17, 2009Steven Davidoff's book, Gods at War, will be coming out soon and is available for pre-order. The NY Times adapted a portion of it in today's paper here. In that selection The Deal Professor asks a relevant question: what the...
Laster Hearing Set
Posted on September 16, 2009The Senate Executive Committee will meet to consider the nomination of Travis Laster at 1 p.m. hearing on September 22. At 4:00pm following the nomination hearings, the full Senate will be called into session, presumably to vote on the nominations....
Top-Up Option Math
Posted on September 15, 2009Just going over some older posts, and I ran across The Deal Professor?s excellent post on top up options. I think it?s worth adding that if you?re going to counsel your clients that a top up option is ?standard? in...
Adams and Superfluous Recitals
Posted on September 14, 2009Ken Adams -- name sound familiar? It should, because if you're like me a dog-eared copy of his Manual of Style for Contract Drafting sits on a shelf in your office -- anyway, he has a good post on his...
Time to Rethink M&A?
Posted on September 14, 2009"It's high time we stand back and completely revamp the basic terms of M&A papers, eliminating the boilerplate that is never relevant in the real world and advancing concepts that actually work when markets turn or expectations change. The technology...
Rakoff Rethinks Corporate Liability
Posted on September 14, 2009"It is not fair, first and foremost, because it does not comport with the most elementary notions of justice and morality, in that it proposes that the shareholders who were the victims of the Bank's alleged misconduct now pay the...
Business Law Prof Wanted - University of Florida
Posted on September 13, 2009The University of Florida Fredric G. Levin College of Law seeks to fill up to three tenure track faculty positions. The anticipated starting date is the Fall Term of 2010. At this time, we anticipate needs in the following areas:...
Davidoff on Selection of Governing Law
Posted on September 10, 2009Steven Davidoff - The Deal Professor - has a new paper with Matthew Cain in which they evaluate the selection of choice of law provisions in merger agreements and find that Delaware dominates: Delaware's Competitive Reach (SSRN). Abstract: We evaluate...
Hummer fails to get Chinese approval
Posted on September 10, 2009Believe me, I'm all for the Chinese central bank reducing its huge foreign exchange surplus by permitting Chinese companies to buy esssentially worthless US assets. That said, I'm not really surprised by this report. -bjmq
Cuomo taking a run at BAC?
Posted on September 09, 2009The WSJ has an article on C1 today suggesting that New York will soon be charging BAC with state securities law violations in connection with its acquisition of Merrill Lynch last year. The article includes a link to a letter...
Stapled Financing in Poor Credit Markets
Posted on September 08, 2009Foulds, a clerk for Vice Chancellor Parsons, has a paper on conflicts of interest in stapled financing. Stapled financing is a practice in which the seller's advisor offers potential acquirors financing to undertake an acquisition. Of course this is a...
Tinker Bell has her Say on SEC Shareholder Access Proposal
Posted on September 06, 2009On Friday, The Dealbook helpfully linked to some of the comments submitted in response to the SEC's "shareholder access" proposal. There are lots of comments and they cover a wide variety of issues related to the access proposal. A general...
Deals and Two-Sided Markets
Posted on September 04, 2009Marc Rysman at BU has a nice introductory paper on two-sided markets (The Economics of Two-Sided Markets) appearing in the current Journal of Economic Perspectives. Two-sided markets are relatively common and often involve some level of network exteranality...
China Pre-merger Clearance paper
Posted on September 03, 2009Mitnick, Yang and Emch have a recent paper assessing China's pre-merger clearance regime, The Dragon Rises: China's Merger Control Regime One Year On. Abstract: During the first year of existence of China?s Anti-Monopoly Law, much has been accomplished but much...
Marvel Lawsuit
Posted on September 01, 2009According to Bloomberg, a suit has been filed ("POW") challenging Disney's acquisition of Marvel ("KABOOM"). The basic claim appears to be that Marvel's directors failed to meet their obligation under Revlon to cinduct a sales process that resulted in the...
Business Law Prof Wanted - Seattle University
Posted on August 27, 2009Seattle University School of Law seeks to hire tenure-track or tenured faculty members to begin in the 2010-11 academic year in the areas of trusts & estates/estate planning (elder law a plus), corporate law/securities, and taxation. The school is interested...
Laster Nomination Goes to Senate
Posted on August 26, 2009The Delaware Senate will meet on September 22 to vote to approve the nomination of J. Travis Laster to take up the Vice Chancellor's position vacated following the retirement of Vice Chancellor Lamb. -bjmq
Business Law Prof Wanted - University of Colorado
Posted on August 26, 2009The University of Colorado Law School at Boulder is accepting applications and nominations to fill two endowed professorships. JOB DESCRIPTIONS: The first is in the area of business law, including business associations, securities law, corporate finance, entrepreneurial law, tax, and...
Business Law Prof Wanted - University of Arizona
Posted on August 22, 2009The University of Arizona James E. Rogers College of Law anticipates hiring several new lateral and entry-level faculty members over the coming year. Our goal is to find outstanding scholars and teachers who can bring new perspectives to extend the...
Cubs Sold
Posted on August 21, 2009It?s not news to anyone who loves sports that Sam Zell?s Tribune Co. has been in negotiations to sell the Cubs to the Rickett family since 2007. Given the obvious White Sox-bias of the current administration in DC there wasn?t...
Travis Laster Nominated to Delaware Chancery Court
Posted on August 19, 2009Governor Markell's nominating statement follows below: Markell Announces He Will Nominate J. Travis Laster To Serve On The Court of Chancery Wilmington Lawyer Spent His Career Litigating High-Stakes Disputes Before the Court WILMINGTON ? Governor Jack Markell announced Tuesday that...
It's Alive - Update from the Hummer Deal
Posted on August 19, 2009OK, so I thought this deal would never really happen. I thought maybe that the Chinese government would have the good sense to look at some of the recent offshore acquisitions by Chinese companies and decide that wasting foreign exchange...
Chancery Court Shortlist
Posted on August 13, 2009Here's the shortlist for the vacant Chancery Court position as reported by WBOC in Delaware: 1. Mary Johnston, a Superior Court judge since 2003 and previously the chief disciplinary counsel for the Delaware Supreme Court and a partner at Morris...
Recent Developments In Private Equity Deals
Posted on August 12, 2009Courtesy of Hughes Hubbard MAW
Business Law Prof Wanted - Penn State
Posted on August 12, 2009Penn State Law invites applications for tenured and tenure-track faculty positions. We seek distinguished scholars and entry-level candidates of exceptional promise in all fields, especially civil procedure, contracts, torts, commercial law, corporate law and finance, property, intellectual property, health law...
BAC's Problems Not Over, Yet
Posted on August 11, 2009?You filed a rather uninformative, bare-bones complaint.? With that Federal Judge jed Rckoff refused to approve the settlement agreement reached between the SEC and BAC over disclosure problems related to bonuses paid to ML executives just prior to closing the...
Proskauer on Pay to Play
Posted on August 07, 2009On August 3, 2009, the SEC proposed for comment a new rule under the Investment Advisers Act designed to address alleged ?pay to play? practices by investment advisers when seeking to manage assets of government entities. If adopted in its...
back soon.
Posted on August 04, 2009I'll be traveling in Asia for the next couple of weeks and posting only sporadically. In the meantime, here's some in-flight entertainment. -bjmq
BAC Settles with SEC Over Merrill Bonuses
Posted on August 04, 2009Bank of America settled with the SEC over charges that it had made inadequate disclosures to its shareholders in connection with its acquisition of Merrill Lynch. The SEC charged that BAC misled investors about billions of dollars in bonuses that...
China's Premerger Review Statistics
Posted on August 03, 2009On July 21, 2009, the Antimonopoly Bureau of China's Ministry of Commerce (MOFCOM) released statistics on their premerger approval work. The Gerson Lerhman Group has an English language summary with links to the Chinese report is available here. Since August...
Help Wanted - Business Law Prof (Great White North Edition)
Posted on August 02, 2009UNIVERSITY OF SASKATCHEWAN College of Law Tenure Track Faculty Positions The College of Law at the University of Saskatchewan seeks candidates for up to three tenure-track positions beginning 1 July 2010. We anticipate that these appointments will be at the...
Vice Chancellor Lamb and his replacement
Posted on August 01, 2009A found farewell to Vice Chancellor Lamb and then some scuttlebutt on a potential replacement in the Delaware papers: Those who confirmed they applied for the post are: Delaware Superior Court Judge Mary Miller Johnston; J. Travis Laster, a partner...
Say-on-Pay Starting to Move
Posted on July 31, 2009Rep. Barney Frank?s ?say-on-pay? bill, also known as the Investor Protection Act of 2009 (Title IX, Subtitle D of the Financial Regulatory Reform package), is making some headway. It?s expected to get a vote on the floor of the House...
Executive Compensation Blog
Posted on July 31, 2009Need to keep up with say-on-pay and the proposed rules on expanded comp disclosure? I'd start over at David Chun's Equilar CEO Blog. He spends all his time on these issues so you don't have to. The monthly newsletter is...
Help Wanted - Business Law Prof
Posted on July 30, 2009ARIZONA STATE UNIVERSITY Tempe, Arizona Sandra Day O'Connor College of Law Associate and Full Faculty Positions The Sandra Day O'Connor College of Law, under Dean Paul Schiff Berman, is poised for transformative growth in the quality and scope of its...
Chinese Auto News...
Posted on July 30, 2009According to the China Car News, the NDRC has given Geely, a company that actually makes cars, the go ahead to bid for Ford's Volvo. No word on Tengzhong Heavy Industrial Machinery's application to buy Hummer. -bjmq
Boatloads of Money?or Not
Posted on July 30, 2009It is days like today that have corporate directors thanking the gods for the creation of the business judgment rule. Last year, Yahoo passed on a $48bn offer from Microsoft. Its market cap is now somewhere around $20bn and falling....
Another Lesson for Young M&A Lawyers
Posted on July 29, 2009I?ve told students in my Acquisitions Workshop repeatedly that insider trading is no way to start a long and fruitful career. Of course, none of them think that they?ll be so stupid as to do anything like that. But I...
What must a Board do to satisfy its Revlon duties?
Posted on July 29, 2009Milbank, Tweed reviews the decision of the Delaware Court of Chancery in Police & Fire Ret. Sys. of the City of Detroit v. Bernal, et al. and concludes [The Delaware Supreme Court?s recent decision in Lyondell Chemical Company v. Ryan]...
Vice Chancellor Lamb's Last Day
Posted on July 29, 2009Vice Chancellor Stephen Lamb served his last day yesterday, Tuesday. According to the WSJ, he'll be starting at Paul Weiss today. He'll be opening their Wilmington office. Good luck! -bjmq
Ticketmaster-Live Nation Fireworks
Posted on July 28, 2009Yesterday, Rep. Bill Pascrell (D-Springsteen) sent a letter to Assistant Attorney General Christine A. Varney urging her to investigate the pending merger between Ticketmaster Entertainment, Inc. and Live Nation, Inc. for anti-trust law violations. The letter was co-signed by 50...
Activision Litigation ? Game Over
Posted on July 27, 2009Last week Chancellor Chandler dismissed Wayne County Employees? Retirement System v Corti (the Activision litigation). The plaintiffs in the case made a number of claims ? you can probably guess what they were. What caught my eye in the opinion...
M&A Market Trends Subcommittee
Posted on July 27, 2009At the Chicago meeting of the M&A Market Trends Subcommittee of the ABA Business Law Section(scheduled for 10:00 a.m. to 11:30 a.m., local time, on Saturday, August 1st): Jennifer Muller of Houlihan Lokey will discuss deal stats for the first...
Subcommittee on Proxy Statements and Business Combinations
Posted on July 25, 2009The ABA's Business Law Section's subcommittee on Proxy Statements and Business Combinations will meet on Monday, August 3, at 9:30 am. Michele Anderson, Chief of M&A in the Division of Corporation Finance of the SEC is scheduled to discuss various...
As the Engine Turns ? VW/Porsche Saga Nears End
Posted on July 24, 2009Over at post-bankruptcy GM and Chrysler decisions are now being weighed studiously on whether or not shedding this division or that brand contributes to the bottom line and increased efficiency. It?s all so heartening for those who look at the...
For Sale ? One Slightly Used Baseball Team
Posted on July 24, 2009The New York Times announced in its earnings call yesterday that it expects to sell its 18% stake in New England Sports Ventures, which among things owns the Boston Red Sox by January 2009. I?m starting a collection. -bjmq
Earnouts and Private Targets
Posted on July 23, 2009Surprise! As information asymmetries with respect to valuation of a target increase, parties are more apt to rely on earnouts to bridge the valuation gap. Contingent Earnouts in Acquisitions of Privately Held Targets by Ragozzino and Reuer is appearing in...
Empty Voting and 13D Filings
Posted on July 22, 2009Been off doing summer-like things for the last few days. Hey, it?s summer! The WSJ reports today that SEC has fined Perry Corp $150,000 in connection with its failure to file a timely 13D following its acquisition of nearly a...
Lessons From the Cuban Insider Trading Decision
Posted on July 22, 2009Courtesy of Fried, Frank. MAW
Rehoboth Beach Reading
Posted on July 14, 2009Wondering what to read during your next weekend at the beach? The latest Nora Roberts or Catherine Colter novels not attracting your attention? Or maybe like me, your local bookstore for some reason doesn't carry the latest Glenn Beck tome?...
M&A in China - Lessons from Rio Tinto?
Posted on July 13, 2009Prof. Donald Clarke over at the China Law Prof Blog has some thoughts on the Chinese arrests of four Rio Tinto employees for "espionage" following the collapse of the Chinalco/Rio Tinto transction last month. He thinks its a serious and...
More on Training Lawyers
Posted on July 10, 2009Over at Akron Law Café, Professor Stefan Padfield blogs about my remarks on training transactional lawyers given at the AALS's midyear meeting focusing on business law. (Usha Rodrigues previously commented on these remarks over at TheConglomerate). Unrelated to my remarks,...
New GM Press Conference
Posted on July 10, 2009The GM 363 transaction will close this morning. Listen in to the webcast/press conference announcing the New GM at 9:00AM (ET). The call-in number to listen is: 800 230-1093 (U.S.) +1- 612 332-0107 (international/caller-paid) No access code is required The...
Hamline -- Director of Business Law Center
Posted on July 10, 2009Hamline University School of Law (HUSL) seeks a founding Director for its new center in Business Law. Building upon HUSL?s existing strengths, the Director will have substantial opportunity to develop the center?s focus and direction. Current curricular offerings include a...
Broadcom-Emulex Litigation and a Collection of Strine Musings
Posted on July 09, 2009In the Broadcom-Emulex battle that was before Vice Chancellor Strine earlier this week, Vice Chancellor Strine took Broadcom to task for ?punking out? by walking away from the litigation and structuring its offer in a way that prevents the court...
Get the DGCL on Your Blackberry
Posted on July 09, 2009Have you ever been at a meeting and need a provision of the DGCL with no statute at hand? Well, the Delaware law firm of Potter Anderson has come to the rescue with a very cool (well cool to a...
A Hostile "Mini-Wave"?
Posted on July 07, 2009Steven Davidoff over at the Deal Professor has been doing a great job following the in's and out's of the legal issues related to the ongoing NRG/Exelon battle so I haven't spent much time on this trasnaction (here, here, here,...
FDIC Approves Proposed Policy Statement on Investor Qualifications for Failed Bank Acquisitions
Posted on July 07, 2009On July 2, the FDIC released a Proposed Policy Statement on Qualifications for Failed Bank Acquisitions. The purpose of the release is to provide private investors, including private equity funds, with guidelines regarding the terms and conditions of investments or...
GM 363 Sale Approved
Posted on July 06, 2009The following documents have been released by the court overnight: 1. The Decision On Debtors Motion For Approval Of (1) Sale Of Assets To Vehicle Acquisition Holdings Llc; (2) Assumption And Assignment Of Related Executory Contracts; And (3) Entry Into...
What Law Schools Should Teach Future Transactional Lawyers
Posted on July 06, 2009I just posted the first draft of an edited version of my remarks given at the 2009 mid-year meeting of the AALS Conference on Business Associates. It's available for download here. Here's the abstract: Since at least the 1980?s, law...
Help Wanted: Vice Chancellor, Republicans Only
Posted on July 06, 2009Delaware's Judicial Nominating Committee recently posted a job opening for a Vice Chancellor to replace retiring Vice Chancellor Stephen P. Lamb (Huntsman v Hexion, San Antonio Fire & Police Pension Fund v. Amylin Pharmaceuticals, among many others) Delaware's courts are...
Korea Introducing the ?Poison Pill System?
Posted on July 04, 2009If the interlocking ownership structures that characterize the chaebol system didn?t already make it hard enough for the market for corporate control to operate in Korea, the Ministry of Justice is apparently moving quickly to legalize the use of shareholder...
Can Secured Creditor Foreclose on Substantially All the Assets of a Debtor without Stockholder Approval?
Posted on July 03, 2009An interesting question appeared in my in-box a few days ago from the ABA?s Private Equity/Venture Capital Listserve. Here is a somewhat edited version (thanks to Peter Sugar for helping me refine the question): Creditor makes a loan to Debtor....
DOJ Wakes Up to Antitrust
Posted on July 02, 2009In a previous post, Mike noted that US antitrust authorities have a adopted a more aggressive enforcement stance following the change of administrations. There's another example of the more vigorous enforcement attitude this morning. According to the WSJ, the DOJ...
SEC Considering New Director Rules
Posted on July 01, 2009According to Bloomberg, the SEC commissioners will meet today to consider proposing "Armstrong celebrity" director rules. The webcast of the meeting, set to start at 10AM (ET), is here. More disclosure about director nominees and their qualifications is probably a...
Waxman on Lyondell
Posted on June 30, 2009In their article The Delaware Supreme Court Puts to Rest the Conflation of Bad Faith and Due Care Arising Out of Ryan v. Lyondell Chemical Co., just published in Securities Litigation Report, my good friend Eric Waxman and his co-author...
Hummer: Mark your calendars
Posted on June 30, 2009Recent reports suggest that Tengzhong Heavy Industrial Machinery is in discussions with the Chinese government over its proposed acquisition of the Hummer brand, dealerships and AM General production contract (for the H1/H2 model). Since GM recently announced it will be...
BAC's "MAC-Attack"
Posted on June 27, 2009I received a couple of questions offline about Lewis? ?MAC-attack? and whether a MAC claim would have plausible (who knew we had readers in Europe?!). The strength of a potential MAC claim by BAC was well covered by Steven a...
BAC-ML: The E-Mail
Posted on June 26, 2009The internal e-mail disclosed as part of the House Oversight Committee's hearings on the BAC/Merrill deal make for some interesting reading. In the exchange below Scott Alvarez, General Counsel for the Federal Reserve Board, lays out the major legal issues...
SEC Commissioner Paredes' View on Shareholder Access
Posted on June 24, 2009Commissioner Paredes shared his dissenting view on the new shareholder access proposal in a speech before the Chanber of Commerce yesterday. The text of the speech is here. He argues that states are best able to tailor approaches to the...
More Signs that the Hummer Deal Will Not Happen
Posted on June 24, 2009So, GM just announced that it will close its Shreveport, LA plant. That's the plant that assembles the Hummer H3. OK, I suppose that means GM and Tengzhong Heavy won't be signing much of a transition services agreement for the...
Yahoo Shareholder Litigation Settled
Posted on June 23, 2009In anticipation of a potential hostile approach by Microsoft last year, Yahoo adopted a "tin parachute" severance plan. The "tin parachute" is a company-wide severance plan that makes payments to employees who lose their job following a change in control...
Earnouts
Posted on June 23, 2009Suppose a buyer is negotiating the terms of a potential acquisition of a family business when the parties encounter an issue over valuation. The seller?s projections show 500% growth over the three years following the sale. However, the buyer doubts....
Visiting Assistant Professor opportunity
Posted on June 22, 2009The University of Tennessee College of Law is inviting applications for a one semester visiting faculty position to commence in the Spring Semester of 2010, to teach Business Associations and a business law related course through the Clayton Center for...
3(a)(10) Fairness Hearings
Posted on June 19, 2009This digression will be familiar to California lawyers, but maybe a little foreign for others. When doing a deal for stock, it is key that the stock be registered with the SEC so that recipients can freely trade it. This...
Obama Administration?s proposal for Financial Regulation
Posted on June 18, 2009Here?s a good summary of the Obama Administration?s proposal for Financial Regulation edited by my partner Charles Dropkin
Chancellor Chandler to get another term
Posted on June 18, 2009Governor Markell of Delaware announced today that he plans to nominate Chancellor Chandler to a second term as Chancellor. Chancellor Chandler has been serving in the Chancery Court since 1989 and as Chancellor since 1997. -bjmq
Breaking the Bank
Posted on June 17, 2009Last night's Frontline episode gives a blow-by-blow of the BoA/Merrill deal in crisp Frontline style. Watch it over lunch at your desk. For those of you keeping score at home, the material adverse change language is from the merger agreement...
The Original Shareholder Activists
Posted on June 16, 2009The proposed shareholder access rules and the debate surrounding the role of shareholder activists got me thinking. Some opposed to increased shareholder power paint pictures of the end of capitalism that will come when shareholders force boards to adopt unwise...
Huntsman-Hexion Trial
Posted on June 15, 2009Stephen Davidoff, the Deal Professor, is live-blogging the Huntsman trial this morning. If you have time, make sure to drop by. -bjmq
Proposed Shareholder Access Rules Available for Comment
Posted on June 15, 2009While I was out on the road last week, the SEC posted its proposed shareholder access rules for comment. The 250 page proposed amendments to the proxy rules are here and the form for submitting comments (due by Aug 17,...
Are PE IPOs Shareholder Friendly?
Posted on June 12, 2009Yesterday, the Deal Book had a story about a study commissioned by the Investor Responsibility Research Center Institute. The story reports the major conclusion of the study is that buyout firms generally do not establish more shareholder-friendly corporate governance policies...
CSL-Talecris Agreement Terminated
Posted on June 09, 2009CSL Limited announced this morning that it was pulling its HSR filing and is terminating its merger agreement with Talecris following a challenge by US antitrust authorities. The CSL-Talecris deal was one of the very first transactions to be challenged...
On the road this week
Posted on June 09, 2009First, thanks to Steven Davidoff for the mention on his Deal Professor Blog today. Hopefully, Michael and I will be able to add to the discussion. Second, I'll be traveling for the rest of the week and won't be posting...
Gilson and Kraakman - The Directors Guild
Posted on June 08, 2009Ronald Gilson (Stanford/Columbia) and Reinier Kraakman (Harvard) make the case for stronger boards in today's New York Times. In particular, they argue that the Treasury should set up (or at least rely on) a clearinghouse to help identify idependent director...
Slow-Motion Trainwreck
Posted on June 08, 2009OK, I have to admit that I am fascinated at the slow-motion train wreck that is the proposed sale of Hummer to a Chinese company in the foothills of the Himalayas. I understand that GM and its advisors are just...
Supreme Court Stalls Chrysler Sale
Posted on June 08, 2009Supreme Court of the United States No. 08A1096 INDIANA STATE POLICE PENSION TRUST, ET AL., Applicants, v. CHRYSLER LLC, ET AL. ORDER UPON CONSIDERATION of the application of counsel for the applicants, and the responses filed thereto, IT IS ORDERED...
What about Chinese approval?
Posted on June 05, 2009The proposed acquisition of Hummer is a bit of an odd deal. In addition to the (non)issue that Hummer builds a civilian version of the Humvee, which may cause some US-based political questions ? there is now also the issue...
Reverse termination fees
Posted on June 04, 2009Buy-side optionality in merger agreements is an area of a lot of interest these days. I know Steven has spent time on this blog and over at The Deal Professor blog thinking about it, particularly in the context of financial...
M&A Resource for Young Lawyers
Posted on June 03, 2009So maybe you?re a newly minted JD studying for the bar. Have you given any thought to what you might want to read on your now extended bar trip? I mean, when you show up for your first day of...
CFIUS Filing for Hummer Deal?
Posted on June 02, 2009OK, so GM went the way of Chrysler and filed for bankruptcy yesterday. Earlier this morning there was an announcement by GM?s management that it had entered into an MOU with a mysterious unidentified potential buyer for its Hummer division....
More Fuel for Shareholder Access Debate
Posted on June 02, 2009The real question regarding the shareholder access debate is whether once shareholders have the power to nominate minority directors whether they will use it for good or ill, or at all. Yair Listokin has a paper, ?If You Give Shareholders...
Graduation season and Bernanke's commencement address
Posted on June 01, 2009A second away from M&A to note that it's graduation season at most law schools. Ben Bernanke, chairman of the Federal Reserve, gave the commencement address at this year's graduation here at Boston College Law School. It was a nice...
DGCL 303 and Sales of Substantially-All-the-Assets in Bankruptcy
Posted on June 01, 2009Almost lost in the big news of the day that GM has filed for bankruptcy (bankruptcy petition here) was the announcement that over the weekend Judge Gonzalez approved the sale of substantially all the assets of Chrysler in bankruptcy to...
AALS Mid-Year Meeting
Posted on June 01, 2009On Wednesday, June 10, 2009, I'll be speaking at the Conference on Business Associations at the annual AALS Mid?Year Meeting . Here are the details: "Perspectives from Practice 9:00 ?10:15 a.m. James D.C. Barrall, Global Chair, Benefits and Compensation Group,...
The Art of Leaving in High Time
Posted on May 30, 2009Robert F. Bruner has graciously sent his thoughts on the recent announced spin-off of AOL from Time Warner. Dr. Bruner is Dean and Charles C. Abbott Professor of Business Administration and Distinguished Professor of Business Administration at the Darden Graduate...
?Vigorous Antitrust Enforcement? Begins
Posted on May 29, 2009A couple of days ago, Michael posted about the renewed interest in ?vigorous antitrust enforcement? by the Obama Administration. Over the last couple of days there has been some movement on this front. The WSJ reports today that the FTC...
Deals from Hell, cont
Posted on May 28, 2009For the sake of completeness Time Warner announced the spin-off of AOL this morning. Either the board meeting started really early, or they didn't have much to talk about. Here's the press release. - bjmq
Matching Rights in Merger Agreements
Posted on May 28, 2009Rights of first refusal in merger agreements are a little bit of a hobby horse of mine. Except for papers by David Walker (here) and another by Marcel Kahan (here) they don?t get much attention. This is always a bit...
Interview with Justice Jacobs
Posted on May 27, 2009J.W. Verret's interview with Delaware Supreme Court Justice Jacobs is here. It's worth your time. Below is a link to the recent Brennan Lecture on the State Courts at NYU Law School given by Justice Jacobs in February 2009. His...
The Kauffman Foundation Wants to Friend You
Posted on May 27, 2009"The Kauffman Foundation invites scholars who are interested in discovering new insights into the field of entrepreneurship to join a group on Facebook for entrepreneurship scholars to connect and interact. View/join the Kauffman Entrepreneurship Scholars group at: http://www...
Deals from Hell
Posted on May 27, 2009In his book, Deals from Hell , Robert Bruner catalogs many of the worst M&A deals of recent memory. These deals are great for teaching purposes -- mostly to help students get a handle on how and why parties do...
Merger Pricing
Posted on May 26, 2009Baker, Pan, and Wurgler recently posted a paper, The Psychology of Pricing in Mergers, analyzing the pricing of mergers. They conclude that the 52-week high provides an important psychological anchor in the pricing of mergers. This paper got a nice...
Delaware Weighs in on Poison Puts
Posted on May 26, 2009The credit crisis has brought the issue of the poison put to fore. A "poison put" is a change of control provision in an indenture that prevents a debtor from having its board replaced as a consequence of a hostile...
OTS Approves Bank Purchase by a Consortium of Private Equity Firms in Switch of Policy
Posted on May 26, 2009The Office of Thrift Supervision recently approved the purchase of a thrift (BankUnited FSB) under its supervision by a consortium of private equity firms. This decision makes the OTS the first bank regulatory authority to approve the acquisition of a...
Rubinovitz on Fixed Costs
Posted on May 25, 2009Robert Rubinovitz's paper, "The Role of Fixed Cost Savings in Merger Analysis" is now appearing in the Journal of Competition Law & Econ. Here's the abstract: Among the many motivations for mergers, clearly one of the more important considerations is...
Faculty hiring opportunity -- M&A prof wanted
Posted on May 23, 2009Albany Law School is looking to hire an entry level business law type in the upcoming hiring season. Here's their pitch: Albany Law School seeks candidates for a full-time, tenure track position teaching courses in business law, regulatory compliance, and...
Chancery Court rejects challenge to Atmel pill
Posted on May 22, 2009Chancellor Chandler rejected a challenge of Atmel Corp.'s amended poison pill/shareholder rights plan. The shareholder challenge arose in response to the board of Atmel's decision to reject an unsolicited three-way offer from MicroChip Tech and ON Semi in October 2008...
SEC Shareholder Access Proposal
Posted on May 21, 2009The SEC has announced proposed rules to amend Exchange Act Rule 14a-8(i)(8). Video of Chaiman Schapiro 's opening statement is here. This amendment will allow certain shareholders to use the corporate proxy machinery to nominate directors. Shareholders who hold their...
Why deals died
Posted on May 20, 2009Lawyers at Gibson, Dunn examined the 70 U.S. deals identified by Thomson Reuters' as"withdrawn" in 2008. The two largest causes of the busted deals? No surprise here: (1) almost 40% of the deals fell apart because of a deterioration in...
Vice Chancellor Lamb @ NYU
Posted on May 20, 2009Vice Chancellor Lamb recently gave a talk at NYU School of Law reflecting on his time on the court, the influence of Bill Allen and the current market turmoil. Watch it here: - bjmq
Porsche - VW fun
Posted on May 20, 2009The on-again-off-again deal between Porsche and VW is apparently back on again. Both sides agreed to get back to negotiating a deal after having temporarily called the whole thing off just a couple of days ago (here). I like this...
European Earnouts
Posted on May 19, 2009A new report out of Europe notes that 17% of transactions announced in the fourth quarter of 2008 -- a period of great instability included earnout provisions. Earnouts are a very tricky business. Vic Goldberg at Columbia has looked at...
The Match King - Summer Reading
Posted on May 19, 2009The current financial crisis will no doubt give rise to a host of new regulations that will affect corporate law, securities law, M&A, etc. It's worth taking a second to think about the last financial crisis of this magnitude and...
Contingent Value Rights and the new M&A
Posted on May 18, 2009That the credit crisis has created a challenging deal environment is an understatement. Firms that might otherwise have been in the market as a acquirers are unable to secure the credit necessary to make deals happen. Potential sellers are sitting...
Welcome Back!
Posted on May 18, 2009This blog has been silent for a few months now, but silent in a good way. Steve Davidoff, who got this blog going, has gone on to much bigger and better things and now reaches a very broad audience through...
Major Antitrust Enforcement Policy Shift Announced: DOJ To Take Aim at Market Leaders
Posted on May 18, 2009In her first public remarks as chief antitrust enforcer, the newly installed Assistant AG, Christine Varney, announced that the Antitrust Division is reversing the prior administration?s policy with respect to enforcement of Section 2 of the Sherman Act...
About This Blog
Posted on April 30, 2009The Law Professors Blogs Network is looking for faculty in this area of law to re-launch this blog. If you would like more information about what this entails, please email Paul Caron and Joe Hodnicki.
Huntsman/Hexion Debt Commitment Letter
Posted on October 13, 2008At last. Download 100708_Exhibit_1.pdf
M&A Law Prof Blog Editor
Posted on October 11, 2008Chris Harrison will not become an editor of the M&A Law Prof Blog. Steven Davidoff will continue in his role as before.
Hexion/Huntsman Post-Trial Briefs
Posted on September 29, 2008Download hex_public_brief.pdf Download hun_public_brief.pdf
Lehman APA
Posted on September 19, 2008Download doc_no_60_lehman_brothers_motion_to_schedule_a_sale_hearing_21.pdf
Huntsman Pretrial Briefs
Posted on September 08, 2008Download corrected_pretrial_brief.pdf Download public_ptb.pdf
My SEC Comment Letter on the Proposed Revisions to the Cross-Border Release
Posted on June 23, 2008Download sec_comment_letter_cbr.pdf
BCE Documents
Posted on June 11, 2008Download 32647_factummmoire_20080610_r_1976_and_1996_debentureholders_crossappeal.pdf Download 32647_factummmoire_20080610_r_1997_debentureholders_crossappeal.pdf These are from the debenture holders -- you can access BCE's filings on their website.
CCU: Banks' Motion for Summary Judgement in Texas
Posted on May 05, 2008Here: Download defs_msj1.pdf Now we know why they made that settlement offer.
Opinion of Judge Freedman on Motion to Dismiss
Posted on April 25, 2008She dismisses the claims against CC Media and Clear Channel: Download helen_e_freedman1.pdf
PE Firms Redacted Response to Summary Judgment
Posted on April 23, 2008Finally available: Download plaintiffsoppositiontosjin_ny.pdf
More CCU Litigation Docs
Posted on April 10, 2008Download ny_cc_media_motion_to_dismiss_counterclaim_4908.pdf Download tx_banks_opposition_to_temp_injunction_4808.pdf
CCU Summary Judgement
Posted on April 09, 2008Download ccu_scheduling_order_2.pdf - Adobe Acrobat Standard.pdf This is the order for the summary judgement briefing action. Tomorrow is a big day -- we'll see the banks' legal case.
Parsons Stays Bear DE Action
Posted on April 09, 2008No surprise: Download memorandum_opinion1.pdf. The penultimate line says it all: In this case, considering that the New York court has scheduled an expedited preliminary injunction hearing, the issues presented involve application of established precedents of Delaware corporate law to an...
TravelCenters v. Brog
Posted on April 08, 2008Last Friday, Chancellor Chandler issued a ruling from the bench deciding TravelCenters v. Brog. The case was most notable for involving a notice by-law in a publicly traded LLC. In the ruling he stated: limited liability companies are creatures of...
Bear Documents
Posted on April 07, 2008New York Complaint - Download in_re_bear_litigation_complaint.pdf Transcript of Hearing Before Parsons -- Download bear_stearns_3.31.08 hearing transcript del.pdf
Remand Order
Posted on April 03, 2008Download 4208_order_usdc_western_dist_texas.pdf . When this was first filed I hadn't realized that CC Media was the S-4 filing vehicle. Given this, its participation is valid, and the remand is rightly decided (yes, I know this is a self-serving statement)...
CCU Texas Remand Documents
Posted on April 02, 2008Download ccu_emergency_motion_to_remand.pdf Download ccu_reply_to_reponse_tx.pdf Download ccu_sur_reply_tx.pdf Download ccu_ltr_to_court.pdf
CCU Motion to Remand
Posted on March 31, 2008Download ccu_emergency_motion_to_remand.pdf Lot's of bold -- hard to see how CCU wins this one since CC Media is not a true party to the merger agreement.
CCU -- Banks' Opposition to Expedited Proceedings in NY
Posted on March 31, 2008Download ny_response_3_31_08.pdf
And now for something completely different
Posted on March 18, 2008The Mills/McCartney divorce opinion
Latest CCU v. Providence v. Wachovia Teleconference Transcript
Posted on March 10, 2008From last Monday. Access it here. I refer to it today on my DealBook post Big Mac.
Strine CCU Transcript
Posted on March 03, 2008Strine CCU Transcript The last ten pages are a must read for p/e lawyers. It sets forth his views on specific performance (hint -- not surprisingly he doesn't think it is a problem)
In a chilly IPO market, blank check companies are hot
Posted on March 02, 2008The Austin American Statesman has an article examining the SPAC phenomenon: In a chilly IPO market, blank check companies are hot. The piece addresses the potential problems with SPACs and discusses my paper Black Market Capital which examines some of...
Newport v. Wachovia (Delaware Action)
Posted on February 28, 2008Not enough time too many complaints -- access the latest one here.
Today's Letters to Strine in CCU v. Providence Merger Sub
Posted on February 26, 2008Clear Channel_Letter Providence_Letter
Genesco Order on Justiciability
Posted on February 22, 2008Access it here. A stepping-stone win for FL an GCO.
The HA 2003 Liquidating Trust v. Credit Suisse Sec. (USA) LLC
Posted on February 21, 2008Here is a nice Easterbrook opinion on fairness opinions just out of the Seventh Circuit. I am happy to say that he cites my article Fairness Opinions. There are also some good points/quotes in it. My favorite: Much of the...
CCU v. Newport
Posted on February 17, 2008Access the complaint here. I'll have commentary in DealBook on Tuesday.
Genesco: Tenn. Court Order
Posted on February 15, 2008Here it is. It probably doesn't mean anything -- just the court asserting its authority.
Preska')s Order on Justiciability (Genesco NY Dispute)
Posted on February 14, 2008Order to Brief Justiciability Well -- you can see what is coming next . . . .
Clear Channel Divestiture Documents
Posted on February 13, 2008Competitive Impact Statement Complaint Hold Separate Order Explanation Seems to be a lot of rigamorole on this, but read the explanation -- this is standard operating procedure and Bain and Thomas H. Lee have signed off on all of it.
Accredited Home Lenders v. Lone Star Funds: A MAC Case Study
Posted on February 11, 2008I've posted to the SSRN a case study on material adverse change clauses. Here is the abstract: This case study is based on the 2007 material adverse change dispute between Accredited Home Lenders and Lone Star Funds. It is designed...
UBS and Genesco Motions to Dismiss in New York
Posted on February 07, 2008Genesco Motion to Dismiss UBS Motion to Dismiss
The Latest MAC Case -- Solutia
Posted on February 07, 2008Filings available as follows: Complaint Debt Commitment Letter Motion to Expedite
ADS REspone Letter
Posted on February 05, 2008ADS's response to Blackstone's motion to dismiss is here
Blackstone Motion to Dismiss ADS Case
Posted on February 04, 2008Here it is. The first paragraph bears quoting: Defendants, affiliates of The Blackstone Group L.P. (?Blackstone?), have been attempting for many months to complete the acquisition of ADS. This is a transaction that they remain steadfastly committed to complete...
Genesco's Response to Finish Line's Interlocutory Appeal
Posted on January 29, 2008You can access it here
Finish Line's Answer
Posted on January 26, 2008Here is a copy of Finish Line's answer. It's rather clever. I'll have analysis on the N.Y. Times DealBook site on Monday.
Finish Line's Interlocutory Appeal
Posted on January 23, 2008Finish Line and UBS filed for an interlocutory appeal of their Tennessee action (download the appeal here ). A few tidbits: The trial date for the New York action is March 3. Finish Line and UBS are invoking the April...
UBS's Amended Complaint
Posted on January 15, 2008Today UBS filed an amended complaint in the Genesco action. It is better crafted and includes some of the third quarter numbers but I didn't see anything earth-shaking. Download it here
Genesco's Answer
Posted on January 14, 2008Finally, here is Genesco's answer to the New York action. Nothing too interesting.
M&A Law Prof to the New York Times DealBook
Posted on January 10, 2008I'm very pleased to announce that I will now be blogging full time with the New York Times DealBook as the Deal Professor. Don't worry, it will be the same blog covering the same topics with the same length of...
Wanted M&A Regulator (Deal Junkies Preferred)
Posted on January 10, 2008The SEC has posted up on their website the job opening for Brian Breheny - Chief of the Office of Mergers and Acquisitions. The pay is $119,731-$185,393 which is about what a first year associate in M&A makes these days....
Reddy Ice and Where is Genesco?
Posted on January 09, 2008The below press release says it all -- it doesn't look good for Reddy Ice (insert melting ice joke here or query as to what exactly conceptual discussions about a renegotiated deal are). The press release below is likely a...
Huntsman/Hexion
Posted on January 09, 2008Huntsman Chemical is trading below its August lows today. As we all know, Huntsman currently has agreed to be acquired by Hexion Specialty Chemicals Inc., a portfolio company of Apollo. At first blush, it appears that Hexion pulled a nice...
Genesco -- the ambiguity of specific performance
Posted on January 04, 2008Apparently in response to a Genesco motion to clarify, the Tenn. judge today issued this order. A few points: The judge rules that her recent opinion is not a final order and she will issue a final order only once...
The Next Victim Please (Reddy Ice)
Posted on January 03, 2008The demise of the PHH Corp. deal has me thinking about the next victim of the 2007/2008 private equity blow-out. I think the clear nominee for the dead pool has to be Reddy Ice Holdings -- it currently has a...
Paradigm Shift: Federal Securities Regulation in the New Millennium
Posted on January 03, 2008I'm presenting the paper Paradigm Shift: Federal Securities Regulation in the New Millennium tomorrow in New York at the American Association of Law Professors annual meeting of the securities regulation section. Here is the abstract: In May 2007, Oaktree Capital...
PHH Corp.
Posted on January 02, 2008I'm a bit surprised at the number of articles today on the collapse of PHH Corp. and its possible wider implications. The deal has been walking dead since mid-September when PHH Corp. announced that J.P. Morgan Chase & Co. and...
Genesco: A Half-Time Report
Posted on January 02, 2008The picture which emerges from the Genesco opinion is a bidder engaged in a hot auction worried about a topping bid and pushing the limit on pricing. In the background is a financing bank looking to build a big client...
The Top Ten M&A Events of 2007
Posted on December 30, 2007[Moving to the top for the new year] My wholly subjective list of the top ten M&A events for 2007: The MAC Daddy. It began with Accredited Home Lenders/Lone Star. But the August turmoil subsequently brought material adverse change (MAC)...
Genesco v. Finish Line: The Opinion
Posted on December 28, 2007So, a few thoughts on the Genesco opinion issued yesterday: Fraud Claims. Chancellor Lyle finds that the Finish Line and UBS testimony was not believable as to Genesco's and Goldman Sachs's affirmative oral statements about their May performance and thus...
Genesco wins in Tennessee
Posted on December 27, 2007Now its off to New York to litigation the solvency issue and whatever else UBS can concoct up (there is the Tenn. appeal too). Access the opinion here. I'll have more tomorrow.
URI/Cerberus: The Final Word
Posted on December 27, 2007I think we now have a confident view of how the negotiation occurred. Throughout the contract negotiation process the Cerberus side made it clear at all times that its contracting policy did not permit it to allow the Seller a...
The Dog Bites: Coda
Posted on December 24, 2007So, I've been thinking a bit more about the URI/Cerberus opinion over the weekend and have the following thoughts/questions: Chancellor Chandler again reiterates that he denied URI's motion to grant summary judgment but that "the question was exceedingly close...
The URI Opinion: Prof. Larry Ribstein's Commentary
Posted on December 21, 2007The ever-intelligent Prof. Larry Ribstein over at Ideoblog has some excellent commentary on the Coates affidavit, the Chandler opinion and the wider implications of the URI case for contract drafting practices. You can access the post here. I'll have full...
Cerberus/URI opinion -- Quick Assessment of the Winners and Losers
Posted on December 21, 2007Access the opinion here. Chandler begins: In classical mythology, it took a demigod to subdue Cerberus, the beastly three-headed dog that guarded the gates of the underworld.1 In his twelfth and final labor, Heracles2 journeyed to Hades to battle, tame,...
Chandler Rules for Cerberus
Posted on December 21, 2007I'll post the decision as soon as I get a copy.
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