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...
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...
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 .
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...
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...
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...
Maric Capital Master Fund, Ltd. v. PLATO Learning, Inc., C.A. No. 5402-VCS (Del. Ch. May 13,
2010), read opinion here .
Whether a proposed merger should be enjoined due to the breach of the
disclosure duty in connection with the proxy statement.
Although the Court...
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...
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,...
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...
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.
involves a claim against the purchaser of a company and its major law firm for
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...
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...
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...
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...
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...
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.
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...
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...
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...
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...
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...
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...
M&A deals are a focus of the private securities litigation bar, according to a new report from Cornerstone Research. Specifically, 94% or more of M&A deals filed last year with a value of over $100 million resulted in private damage actions, according to the report. Cornerstone Research, Shareholder...
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 inside information about the transaction from a client...