Skadden Discusses Latest Legislation to Expand Foreign Investment Review

In large part as a response to China’s national industrial goals and subsequent Chinese acquisitions of U.S. and European companies that are technology leaders in key industries, the U.S. government and a number of European governments are seeking to expand the scope of their national security reviews of foreign investments. Below, we outline ongoing developments affecting U.S. national security reviews of inbound foreign investment.1

FIRRMA Moves Ahead

The Senate and House have recently passed their respective versions of the Foreign Investment Risk Review Modernization Act (FIRRMA) legislation that was origi­nally introduced in November 2017 with significant bipartisan support. FIRRMA … Read more

How M&A Laws Affect the Risk of Stock Price Crashes

In a new cross-nation study, we discuss our findings on how the takeover market affects stock-price crash risk, defined as the likelihood of a sudden, drastic decline in the stock price of a firm. An important consideration for risk management and investment decisions, crash risk has received much interest in recent years from academics, regulators, and practitioners due to the series of high-profile corporate scandals (e.g., Enron, WorldCom, Satyam) and the financial crisis of the last decade.

Prior research suggests that the risk of security price crashes stems from agency problems (i.e., managers do not act in the best interests … Read more

Is Delaware Asleep at the Wheel (Again)?

Beginning at least as far back as Professor William Carey’s famously withering 1974 Yale Law Journal article about Delaware’s “enabling” of bad corporate actors, critics of the state’s corporate jurisprudence have alluded to a “race to the bottom” in which the state legislature and judiciary turn a blind eye to managerial agency costs in order to attract new business and maintain Delaware’s dominant franchise in corporate law.

But over the past two decades, a better metaphor for the state’s corporate oversight may be a pinball ricocheting from crisis to crisis, with jurisprudential vigilance varying according to the degree of exigency … Read more

Paul Weiss Offers M&A at a Glance for May 2018

M&A activity in May 2018 generally weakened from the prior month. The total number of deals decreased in the U.S. by 1.2% to 667 (the second-lowest level in the last 12-month period) and globally by 4.8% to 2,759 (the lowest level in the last 12-month period). May deal volume by dollar value decreased in the U.S. by 29.9% to $144.39 billion and globally by 21.9% to $401.76 billion.[1]

Strategic vs. Sponsor Activity

The number of strategic deals increased by 2.4% to 564 in the U.S., but decreased by 5.0% to 2,456 globally, the second-lowest level in the last 12-month … Read more

Mergers and the Market for Busy Directors: A Global Analysis

The issue of directors serving on multiple corporate boards has come under increasing scrutiny from both academicians and practitioners. There are two types of arguments associated with the conflicting evidence of how multiple directorships affect firm value and performance. The first is a reputation hypothesis that contends individuals gain valuable experience, skills, and networks from serving on multiple boards. The competing argument, which we refer to as the busyness hypothesis, is that these individuals are over-committed and thus unable to provide the careful monitoring and diligence that their positions require. The literature has not yet established whether the reputation or … Read more

Paul Weiss Offers M&A at a Glance for April 2018

M&A activity in April 2018, as measured by number of deals, dipped from March 2018 levels in the U.S. and globally across every metric.  The total number of deals decreased by 15.2% to 669 in the U.S. and 9.7% to 2,771 globally, each the second-lowest respective level in the last 12-month period.  April volume by dollar value increased both in the U.S. and globally.[1]  In the U.S., deal volume increased by 17.6% to $206.28 billion.  Globally, deal volume increased by 8.3% to $525.68 billion, a 12-month high.

Strategic vs. Sponsor Activity

The number of strategic deals decreased by 10.8% … Read more

The Lessons of Xerox: Is New York Law Now Tougher Than Delaware’s?

It is an old maxim that “Hard cases make bad law.” But it may have a corollary: “Bad facts make hard law.” When a defendant clearly overreaches, the court may not let small details stand in its way. The decision in In re Xerox Corp. Consol. Shareholder Litigation[1]  by Justice Barry Ostrager of the New York Supreme Court may be such a case. Decided at the end of last month, the decision enjoined a shareholder vote on a merger-like transaction between Xerox Corporation and Fujifilm Holdings Corporation (“Fuji”) and required Xerox to waive its advance notice bylaw so that … Read more

Feedback Effect of Disclosure Spillovers

Prior research has documented the existence of disclosure externalities, or information spillovers, between firms in a number of different settings. The idea is that when two firms are economically related, public disclosures by one firm can affect the stock price of the other firm. In a recent paper, we extend this idea by asking whether firms make disclosure decisions with the intention of affecting other firms’ stock prices. That is, we examine whether the presence of information spillovers influences firms’ disclosure decisions.

We investigate our question in the context of cash-based mergers and acquisitions. We test whether bidders disclose information … Read more

Fried Frank Discusses Key Delaware Decisions on M&A and Corporate Governance

New Risk of Below-Deal-Price in Appraisal Results

Last quarter, the Delaware courts issued the first post-Dell appraisal decisions—Aruba and AOL (issued by the Court of Chancery) and SWS Group (issued by the Delaware Supreme Court, affirming the Court of Chancery decision below). In Dell, the Supreme Court had held that, in the case of an arm’s-length merger with a “robust” sale process, the deal price is generally the best “proxy” for appraised fair value and should be given “heavy, if not determinative weight” in determining fair value. The Supreme Court had also directed that, even if the … Read more

How Enforcement Quality Affects the Use of M&A Earnouts

In mergers and acquisitions (M&A), one of the trickiest tasks is assessing the value of the company to be purchased or sold. While in some cases buyers and sellers come easily to an agreement, in others the information asymmetry between the two parties is too great or the target company is too opaque, and the deal can fall apart.

Earnouts are contractual agreements that link part of the acquisition price to the future performance of the target. One portion of the price is paid to the selling shareholders up front and the remaining portion is paid only if the target … Read more

Cahill Gordon Discusses Proposed Amendments to Delaware Corporation Law

The Corporate Council of the Corporation Law Section of the Delaware State Bar Association (the “Corporate Council”) has released proposed legislation[1] to amend certain provisions of the Delaware General Corporation Law (“DGCL”) which if enacted would, among other things, (i) amend Section 262 to reduce the number of transactions that would be subject to appraisal claims by extending the “market out exception” to the availability of statutory appraisal rights in exchange offers followed by a merger under Section 251(h), (ii) amend Section 204 to clarify the situations in which that Section may be used to ratify defective corporate acts … Read more

Hedge Funds’ Short-Term Thinking: Does It Matter for Merger Payments?

In 2010, Roger Carr, then-chairman of British confectionery Cadbury, waged a grueling five-month battle before losing control of the company to Kraft Foods.  “At the end of the day,” he said, “there were simply not enough shareholders prepared to take a long-term view of Cadbury and prepared to forgo short-term gain for longer-term prosperity.”

In response to the deal, the Guardian newspaper asked whether it was time to regulate hedge funds’ activities to protect premier UK companies from inefficient takeover bids. Hedge funds held 5 percent of Cadbury at the time of Kraft’s bid, and, according to Roger Carr, short-term … Read more

Paul Weiss Offers M&A at a Glance for March 2018

M&A activity gained momentum in March 2018, capping the strongest opening quarter in the history of this publication. In the U.S., deal volume returned to January levels, increasing by 109.6% to $174.10 billion, and the number of deals increased by 2.9% to 751. Globally, deal volume increased by 49.9% to $446.00 billion, and the number of deals increased by 4.0% to 2,838. As described below, the one notable exception to the overall trend was a decrease in sponsor-related deal volume.

Strategic vs. Sponsor Activity

The increases in deal volume were reflective of a strong month for strategic transactions. In the … Read more

The Dell Appraisal and the Business Judgment Rule

In 2013, Michael Dell and his private equity partner, Silver Lake, brought the previously publicly-held Dell Corporation private at a price of $13.75 per share, a price that was approved by Dell’s board and by a 57 percent majority vote of shareholders (70 percent of shares voted) on September 12. 2013. That price was arrived at after the board examined numerous estimates of the value of Dell by various outside experts and after an extensive, but ultimately unsuccessful, “go shop” canvassing of at least 60 other companies to explore their interest in making a higher offer.

Shareholders dissenting from the … Read more

How the Delaware Supreme Court May Help Michael Dell in his VMware Raid

VMware’s shareholders enjoyed gains of nearly 60 percent in 2017 as the company positioned itself as an appealing play on cloud computing with substantial growth potential and partnerships with industry leaders like Amazon Web Services. Indeed, in its most recent earnings period, VMware reported revenue growth of 14 percent and earnings growth of 17 percent, handily exceeding expectations for the period ending February 2. One analyst stated that “VMware is poised for its best growth trajectory since the 2008 recession.”

Investors should be celebrating, right? Wrong.

Despite the impressive performance, a dark cloud has hovered over the company since late … Read more

Gibson Dunn Discusses Delaware Courts’ Deferral to Deal Price in AOL and Aruba Appraisals

Two recent decisions confirm that, in the wake of the Delaware Supreme Court’s landmark decisions in Dell and DFC, Delaware courts are taking an increasingly skeptical view of claims in appraisal actions that the “fair value” of a company’s shares exceeds the deal price.[1]  However, as demonstrated by each of these recent Delaware Court of Chancery decisions—In re Appraisal of AOL Inc. and Verition Partners Master Fund Limited v. Aruba Networks, Inc.—several key issues are continuing to evolve in the Delaware courts.[2]  In particular, Delaware courts are refining the criteria in appraisal actions for determining … Read more

Columbia Law School to Hold 2018 M&A and Corporate Governance Conference in New York City

On April 20, 2018, Columbia Law School will hold its 2018 Mergers & Acquisitions and Corporate Governance Conference at Convene in midtown Manhattan. The event is co-sponsored by the law firms Gibson, Dunn & Crutcher and Wachtell, Lipton, Rosen & Katz.

The annual event brings together members of the federal and Delaware judiciary, government regulators, academics, institutional investors, and prominent M&A and corporate governance practitioners. This year’s panelists will include U.S. District Judge Jed S. Rakoff, Delaware Supreme Court Justice Karen L. Valihura, Delaware Chancellor Andre G. Bouchard, and SEC Commissioner Robert J. Jackson Jr. Below is the full agenda.… Read more

Davis Polk Discusses the Impact of European Data Protection Regulation on U.S. M&A

The winds of change will shortly sweep across the data privacy landscape in the European Union (“E.U.”) and the gale will be felt worldwide.  The European General Data Protection Regulation (“GDPR”) will come into force on May 25, 2018.[1]  Currently, some U.S. M&A practitioners prioritize U.S. law, absent a target with a strong business nexus with the E.U., but the GDPR’s extraterritorial scope, together with increased fines for non-compliance (up to the greater of 20,000,000 Euros or four percent of annual global revenue), will force its consideration into U.S. M&A activity.

We discuss below the … Read more

Davis Polk Discusses Greater Risk of Scrutiny for More UK Deals

The UK’s Competition and Markets Authority (CMA) has announced proposals to tighten its jurisdiction over mergers in the military, quantum technology and computing hardware industries. The changes, which are subject to a consultation period through April 12, 2018, would lower the thresholds at which the CMA and the Secretary of State can exercise their powers of review and intervention.

Specifically, the CMA is proposing to:

  • reduce the ‘target turnover threshold’ from £70 million to £1 million, and
  • broaden the ‘share of supply threshold’ to catch targets with 25% or more share of supply in the UK, even if the acquirer

Read more

Fried Frank Discusses When Appraisal Is Likely to Be Below the Deal Price

Since the Delaware Supreme Court issued its landmark Dell appraisal decision in December 2017, the Delaware courts have issued three appraisal decisions—Verition Partners v. Aruba Networks (Feb. 15, 2018), In re Appraisal of AOL Inc. (Feb. 23, 2018), and In re Appraisal of SWS Group (affirmed by the Delaware Supreme Court Feb. 23, 2018). In Dell, the Supreme Court held that, in the case of an arm’s-length merger with a “robust” sale process, the deal price is generally the best “proxy” for appraised fair value and should be given “heavy, if not determinative weight” in determining fair value. … Read more