Securities

Recent Posts

Federal Agencies Announce Revised Horizontal Merger Guidelines
Posted on 10 May 2010 by James M. Wilson, Jr.

On April 20, 2010, the Federal Trade Commission ("FTC") and the Department of Justice ("DOJ") (collectively the "Agencies") released a proposed updated version of the Horizontal Merger Guidelines ("Guidelines"... Read More

NBC-Comcast Deal Approved
Posted on 21 Jan 2011 by Brian JM Quinn

The FCC granted approval for the NBC-Comcast transaction yesterday. The deal was announced last Spring and has been pending approval since then. You'll remember that because the NBC-Comcast deal involves broadcast and cable properties, it required... Read More

J. Crew Settlement in Trouble
Posted on 1 Feb 2011 by Brian JM Quinn

In the most cynical view of the shareholder lawsuit, managers are happy to settle even spurious claims because the global release and settlement generates effectively a 'get out of jail free' card absolving them of any fiduciary failings that... Read More

Chancery Provides "Teachable Moment" for M & A Lawyers: Find Problems of Bidder in Due Diligence or Put Specific Reps in APA; Otherwise No Fraud Claim
Posted on 27 Jul 2010 by Francis G.X. Pileggi

Airborne Health, Inc. v. Squid Soap, L.P., C.A. No. 4410-VCL (Del. Ch. July 20, 2010), read opinion here . Prior Delaware Court of Chancery decisions in this case were highlighted here. Overview This case involves a claim against the purchaser... Read More

Applying Morrison, Court Rejects Toyota Shareholders' Japanese Law Securities Claims
Posted on 14 Jul 2011 by Kevin M. LaCroix

The U.S. Supreme Court's June 2010 decision in Morrison v. National Australia Bank looked like the end of securities claims in U.S. courts on behalf so-called "f-cubed" claimants - that is, foreign shareholders of foreign-domiciled companies... Read More

Merger May Give Investors Alternative to ISS Ratings
Posted on 13 Dec 2010 by Gary Larkin

There's a three-letter acronym that stands for a company that focuses on corporate governance ratings and research that public companies and their boards should become familiar with in the next year. (No. I'm not talking about the powerful ISS... Read More

Losing Standing after a Merger
Posted on 27 May 2010 by Brian JM Quinn

In the vein of life mimicking possible exam questions - Morris James points out a recent case in the Delaware Chancery Court, Arkansas Teacher Retirement System v Caiaf a ("TRS") . The issue relates to whether a plaintiff may maintain standing... Read More

Genzyme's Top-Up Option in Acquisition by Sanofi
Posted on 18 Feb 2011 by Brian JM Quinn

The Genzyme-Sanofi transaction is being structured as a tender offer with a back end short form merger ( merger agreement ). To accomplish the short merger, they are employing a top-up option. The top-up option language is below. The option is triggered... Read More

Cross-Border Deals Demand a Tailored Approach
Posted on 9 Mar 2010 by Martindale-Hubbell Connected

by Steven Anderson Counsel to Counsel Magazine When in Rome, draft contracts as the Romans do. The same goes for China, Brazil and most other countries. Cross-border deals require a customized approach. A one-size-fits-all mentality is a sure... Read More

Wells Fargo Compliance Officer Charged With Altering Document
Posted on 16 Oct 2014 by Thomas O. Gorman

The acquisition of Burger King by 3G Capital Partners is the matter that just keeps on giving – at least for SEC enforcement. Initially, the Commission brought an action against Wells Fargo broker Waldyr Da Silva Prado Neto, who misappropriated... Read More

SEC Provides Exemption from Broker-Dealer Registration Requirements for M&A Brokers
Posted on 11 Mar 2014 by Alexander Davie

On January 31, 2014 (revised February 4, 2014), the SEC issued a no-action letter to a group of attorneys who requested assurance on an issue that has long been on the minds of securities lawyers: are people who facilitate the sale of a controlling interest... Read More

M&A Remains in Doldrums
Posted on 9 Jul 2012 by David N. Feldman

The New York Times reports today that the first half of 2012 has been pretty dismal in mergers and acquisitions. Total dollar volume is down almost 22% from the same period last year, and the number of deals is down 17%. Oil and gas was the busiest sector... Read More

Chancery Rejects Request to Enjoin Hertz Takeover of Car Rental Rival Dollar Thrifty
Posted on 10 Sep 2010 by Francis G.X. Pileggi

In Re Dollar Thrifty Shareholder Litigation, C.A. No. 5458 (Del. Ch., Sept. 8, 2010), read 84-page opinion here . The Court of Chancery issued this opinion last night, denying the request for a preliminary injunction to block the merger by which Hertz... Read More

Unscrambling Eggs
Posted on 11 May 2010 by Brian JM Quinn

It doesn't happen often. But, that doesn't mean it doesn't happen. The FTC is now suing Dun & Bradstreet (H/T Main Justice ) to unwind a transaction D&B closed last year. According to the complaint , D&B acquired the Quality... Read More

Why 102(b)(7) Matters
Posted on 18 May 2010 by Brian JM Quinn

I wanted to follow up on an earlier post, Triggering Revlon with Nonconvertible Debt . In the last paragraph of that post I noted that Lyondell reminds us that good faith claims are very hard to win. Stefan Padfield ( Business Law Prof Blog ) wrote me... Read More

  • Blog Post: The Enforceability of No Talk and No Shop Covenants under Delaware Law

    This article focuses on the enforceability of "no shop" provisions that prohibit a target company from soliciting or encouraging third-party bids after signing an agreement with a prospective purchaser, and "no talk" provisions, that prohibit any discussions or negotiations between...
  • Blog Post: Should You Fear Earnouts in M&A Deals?

    Like any good attorney, I'll start by reframing the question before I answer it. The question that is probably a little more appropriate is: "Who's very cautious about using earnouts in an acquisition?" Answer: I am. Perhaps the primary reason for my caution is that, in my experience...
  • Blog Post: Cross-Border Deals Demand a Tailored Approach

    by Steven Anderson Counsel to Counsel Magazine When in Rome, draft contracts as the Romans do. The same goes for China, Brazil and most other countries. Cross-border deals require a customized approach. A one-size-fits-all mentality is a sure way to derail M&A or joint venture transactions...
  • Blog Post: Cash on the Balance Sheet

    This morning's WSJ has an article suggesting that goods times are just around the corner for M&A lawyers. Actually, it's an article about the hole that is presently being burned in the pockets of managers as they sit on increasingly large cash-piles. The 382 nonfinancial firms in the Standard...
  • Blog Post: Astellas Launches Proxy Battle

    You'll remember that Astellas made a hostile offer for OSI Pharmaceuticals earlier in the month. Along with their offer, they sued in Delaware to get the OSI board to consider the offer. Well, the board has considered the offer ($52/sh cash, a 40% premium) and has rejected it . Here's part...
  • Blog Post: Federal Agencies Announce Revised Horizontal Merger Guidelines

    On April 20, 2010, the Federal Trade Commission ("FTC") and the Department of Justice ("DOJ") (collectively the "Agencies") released a proposed updated version of the Horizontal Merger Guidelines ("Guidelines"). The Guidelines are a set of internal rules that...
  • Blog Post: Unscrambling Eggs

    It doesn't happen often. But, that doesn't mean it doesn't happen. The FTC is now suing Dun & Bradstreet (H/T Main Justice ) to unwind a transaction D&B closed last year. According to the complaint , D&B acquired the Quality Education Data (QED), a division of Scholastic, Inc...
  • Blog Post: Why 102(b)(7) Matters

    I wanted to follow up on an earlier post, Triggering Revlon with Nonconvertible Debt . In the last paragraph of that post I noted that Lyondell reminds us that good faith claims are very hard to win. Stefan Padfield ( Business Law Prof Blog ) wrote me to remind me that the presence of an optional 102...
  • Blog Post: Chancery Issues Preliminary Injunction to Enjoin Transaction Due to Lack of Adequate Disclosure in Proxy Statement

    Maric Capital Master Fund, Ltd. v. PLATO Learning, Inc., C.A. No. 5402-VCS (Del. Ch. May 13, 2010), read opinion here . Issue Addressed Whether a proposed merger should be enjoined due to the breach of the disclosure duty in connection with the proxy statement. Holding Although the Court...
  • Blog Post: Losing Standing after a Merger

    In the vein of life mimicking possible exam questions - Morris James points out a recent case in the Delaware Chancery Court, Arkansas Teacher Retirement System v Caiaf a ("TRS") . The issue relates to whether a plaintiff may maintain standing in a derivative suit following a merger. The answer...
  • Blog Post: The Coming Merger Wave?

    A couple of people have (independently) asked me recently whether or not I thought the recent build-up in cash on corporate balance sheets suggested that a new merger wave is around the corner? Sadly, I think not. We've had a number of "merger waves" in our history - late 1890s,...
  • Blog Post: Private and Public Merger Waves

    Maksimovic et al have recently posted a paper, Private and Public Merger Waves , analyzing merger waves. It's not all that surprising that they find public companies are more likely going to be involved in cyclical merger waves than private companies. They suggest that access to capital is the determining...
  • Blog Post: Chancery Provides "Teachable Moment" for M & A Lawyers: Find Problems of Bidder in Due Diligence or Put Specific Reps in APA; Otherwise No Fraud Claim

    Airborne Health, Inc. v. Squid Soap, L.P., C.A. No. 4410-VCL (Del. Ch. July 20, 2010), read opinion here . Prior Delaware Court of Chancery decisions in this case were highlighted here. Overview This case involves a claim against the purchaser of a company and its major law firm for fraud...
  • Blog Post: Chancery Rejects Request to Enjoin Hertz Takeover of Car Rental Rival Dollar Thrifty

    In Re Dollar Thrifty Shareholder Litigation, C.A. No. 5458 (Del. Ch., Sept. 8, 2010), read 84-page opinion here . The Court of Chancery issued this opinion last night, denying the request for a preliminary injunction to block the merger by which Hertz would buy the shares of its smaller car rental...
  • Blog Post: Perfection of Delaware Appraisal Rights

    The following is a general summary of § 262 of the DGCL. The rights and obligations of stockholders and companies will vary depending upon the circumstances of the particular merger. The appraisal process under § 262 of the DGCL, however, generally proceeds as follows. A company must...
  • Blog Post: The FCPA and Mergers and Acquisitions

    In a webinar on December 2, 2010, Michael Volkov, partner in the law firm of Mayer Brown and Ryan Morgan, Sales and Alliance Director of World Compliance, discussed the implications of the Foreign Corrupt Practices Act (FCPA) to mergers and acquisition. They advise that businesses which seek to...
  • Blog Post: Merger May Give Investors Alternative to ISS Ratings

    There's a three-letter acronym that stands for a company that focuses on corporate governance ratings and research that public companies and their boards should become familiar with in the next year. (No. I'm not talking about the powerful ISS.) It's GMI, as in GovernanceMetrics International...
  • Blog Post: NBC-Comcast Deal Approved

    The FCC granted approval for the NBC-Comcast transaction yesterday. The deal was announced last Spring and has been pending approval since then. You'll remember that because the NBC-Comcast deal involves broadcast and cable properties, it required the approval of the FCC in addition to the normal...
  • Blog Post: J. Crew Settlement in Trouble

    In the most cynical view of the shareholder lawsuit, managers are happy to settle even spurious claims because the global release and settlement generates effectively a 'get out of jail free' card absolving them of any fiduciary failings that may have come before the settlement. That's...
  • Blog Post: M&A Law Prof: AOL's Acquisition of the Huffington Post

    While we await the Airgas decision, Steve Pearlstein (who I had the pleasure of meeting once in Saigon) has some thoughts in the Washington Post on the AOL-HuffPost merger. He thinks its the AOL-TimeWarner deal all over again: AOL looking for a route away from dial-up access and into contet. This...
  • Blog Post: Applying Morrison, Court Rejects Toyota Shareholders' Japanese Law Securities Claims

    The U.S. Supreme Court's June 2010 decision in Morrison v. National Australia Bank looked like the end of securities claims in U.S. courts on behalf so-called "f-cubed" claimants - that is, foreign shareholders of foreign-domiciled companies who bought their shares on foreign exchanges...
  • Blog Post: Katherine Blair and Shoshannah Katz of K&L Gates Discuss Securities Issues in Acquisitions Involving Private Companies

    On this edition, Katherine Blair and Shoshannah Katz of K&L Gates' Los Angeles office discuss securities issues that arise in merger and acquisition activity among privately held and non-reporting companies. They talk about notes as a form of security, assessing accreditation of investors, and...
  • Blog Post: M&A Remains in Doldrums

    The New York Times reports today that the first half of 2012 has been pretty dismal in mergers and acquisitions. Total dollar volume is down almost 22% from the same period last year, and the number of deals is down 17%. Oil and gas was the busiest sector but was also down 5% from last year. Financial...
  • Blog Post: SEC Releases M&A Brokers from Registration

    In a stunning reversal from over a decade of ruling differently, last Friday the SEC released a “no-action” letter saying it will not go after intermediaries in merger & acquisition transactions for failure to register as a broker-dealer even if they receive a commission equal to a percentage...
  • Blog Post: SEC Provides Exemption from Broker-Dealer Registration Requirements for M&A Brokers

    On January 31, 2014 (revised February 4, 2014), the SEC issued a no-action letter to a group of attorneys who requested assurance on an issue that has long been on the minds of securities lawyers: are people who facilitate the sale of a controlling interest in a business involving a transfer of stock...