Wachtell Lipton discusses Short-Term Investors, Long-Term Investments, and Firm Value

A January 2016 study, Short-Term Investors, Long-Term Investments, and Firm Value, by Martijn Cremers, Ankur Pareek and Zacharias Sautner, provides substantial “empirical” evidence for the fact that, in the current corporate governance environment, short-term investors possess the undue ability to pressure companies into maximizing near-term gains at the expense of long-term growth.

The study finds that after short‐term investors become shareholders of companies, those companies tend to decrease spending on R&D, and tend to experience temporarily increased earnings and stock prices. The results further indicate that when the short-term investors leave, these trends are all reversed, “so that … Read more

Gibson Dunn discusses The End of M&A “Disclosure-Only” Settlements With Broad Releases in Delaware

On January 22, 2016, Chancellor Andre Bouchard of the Delaware Court of Chancery issued an important decision in In re Trulia, Inc. Stockholder Litigation—likely hammering the final nail in the coffin of “disclosure-only” settlements with broad releases of liability in M&A stockholder lawsuits in the Court of Chancery.  There could, however, be an increase in “mootness fee” applications resulting from stockholder lawsuits that are voluntarily dismissed following any supplemental disclosures defendants may voluntarily provide.  Stockholder plaintiffs (and their lawyers) may use this vehicle to continue filing lawsuits challenging M&A transactions, albeit not in the same volume that has been … Read more

Akin Gump explains FTC’s Revised Hart-Scott-Rodino Thresholds

On January 21, 2016, the Federal Trade Commission (FTC) announced the latest annual revision to the size thresholds governing premerger notification requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, Section 7A of the Clayton Act, 15 U.S.C. § 18a (the “HSR Act”).[1] The HSR Act requires parties to transactions meeting certain size and other tests to file premerger notification forms with both the FTC and the Department of Justice Antitrust Division and observe a mandatory waiting period prior to closing. The new thresholds will apply to transactions consummated on or after the effective date, which is 30 … Read more

Davis Polk discusses Will Anti-Reliance Provisions Preclude Extra-Contractual Fraud Claims? Answers Differ in Delaware, New York, and California

Merger agreements and other complex contracts often contain “anti-reliance” provisions reciting that the representations in the agreement are the sole representations on which the parties relied in entering into the contract. The law regarding the interpretation and enforceability of such clauses—whether in a merger agreement, a settlement agreement, or other commercial contract—varies by jurisdiction, and continues to develop. On November 24, 2015, the Delaware Court of Chancery in Prairie Capital III, L.P. v. Double E Holding Corp.[1] held that, as a matter of Delaware law, there are no “magic words” to disclaim reliance on extrinsic representations. While a standard … Read more

John Coffee, Headshot

Hedge Fund Activism: A Guide for the Perplexed

The message of the Dow/DuPont merger and split up is simple: No firm is today “too big to target.” Activists can see the transaction as evidence that, even in the rare case where they lose a proxy fight (as they did at DuPont last year in a squeaker), the handwriting is still on the wall, and their game plan, if appealing, will ultimately prevail.  Even though Trian could not win a majority vote to seat its candidates on the DuPont board, it held onto its stake, and the DuPont board quickly ditched their CEO in the wake of that fight … Read more

Jim Carlson (Mayer Brown)

Ethan Allen, Hedge Fund Activism and Prevailing Over Conventional Advice and Practice

Ethan Allen and its management prevailed a few weeks ago against an intense hedge fund activist campaign to remove its entire board of directors.

An analyst of one of our larger shareholders, the Gabelli funds, observed “I’ve never seen a company mount a better campaign against an activist investor than Ethan Allen did… Farooq Kathwari did a good job of implementing their strategy and tactics, to the point where people might study this as an example of how management can push back against an activist investor.” To explain, the Ethan Allen management and board directly engaged and listened to our … Read more

Evelyn Lewis

Transactionalizing the Casebook: 4 Steps

In a 2014 article,[1] I discuss ways of exposing law students to transactional law in non-clinical classes. One tactic I briefly describe is what I call transactional “side-bars”[2] in traditional, substantive, basic business classes like Business Associations (BA) to at least introduce students to transactional practice. Such side-bars focus on transactional facts in selected cases, rather than on the what-went-wrong facts that lead to the litigation. Transactional side-bars deal with tasks that a transactional lawyer would undertake if a client hired him/her to “do” the deal involved in the case when all was still amicable and optimistic.

To … Read more

Wachtell Lipton discusses Staggered Boards, Long-Term Investments and Long-Term Firm Value

Recent econometric studies (“empirical evidence”) definitively rebut the position taken by the Harvard Law School Shareholder Rights Project (SRP) that classified boards are associated with lower firm value and inferior outcomes for shareholders. After correcting serious statistical and econometrical flaws in the studies put forth to support declassification, these new studies conclude that staggered boards result in long-term value creation:

  • A 2014 study, “Staggered Boards and Firm Value, Revisited” found that, when measured across the “time series,” firm value improves after firms stagger, and declines after firms destagger, with the effects stronger at firms seemingly more focused

Read more

Millstein Governance Forum on December 10, 2015 at CLS

On December 10th, Columbia Law School’s Millstein Center on Global Markets and Corporate Ownership will be hosting its 10th annual Millstein Governance Forum.

For the past decade, the Forum has served as one of the premiere venues for business leaders to engage in debate and dialogue on the effects of developments in the capital market on corporate governance. This year’s Forum will focus on the board-centric model of corporate governance functioning in an array of shareholders. Speakers and panels will explore how changing expectations and dynamics in the capital markets impact the way boards govern.

Along … Read more

Latham & Watkins discusses Cybersecurity Due Diligence in M&A Transactions

To begin with a tautology, when you buy a company, you buy their data—and the attendant risks to that data. Cybersecurity risks are not limited to consumer-facing businesses, whose recent losses of cardholder or patient data grab news headlines. Indeed, few businesses today have assets and liabilities that are not in some sense data driven. For most business combinations—whether M&A, joint venture, or leveraged buyout—cybersecurity should be a risk category in its own right. Buyers should review not just historic breaches but also cybersecurity risk management. Even though these risks are hard to quantify, the analysis will inform deal terms, … Read more

Fried Frank explains BMC Software and the Court’s Ongoing Incremental Path to Increased Reliance on the Merger Price in Appraisal Cases

The Delaware Court of Chancery has been on a slow but clear path toward increased reliance on the merger price in determining fair value in appraisal cases. While the court’s reliance on the merger price as the best indicator of fair value has been more frequent recently, the court appears to continue to struggle with a fundamental conflict in its approach to determining fair value.

On the one hand, the court has explicitly recognized that, when a merger price has been derived through an arm’s-length sale process, involving parties with a real economic stake in the outcome and during which … Read more

Gibson Dunn discusses Depomed Decision Highlighting Importance of Careful Monitoring of M&A Non-Disclosure & Use Obligations

On November 19, 2015, in Depomed, Inc. v. Horizon Pharma plc, the Superior Court of California, County of Santa Clara granted Depomed’s request for a preliminary injunction to enjoin Horizon’s hostile exchange offer to acquire Depomed. The injunction was issued based on Horizon’s misuse of Depomed’s confidential information under a pre-existing confidentiality agreement.  Less than one hour after the ruling was issued, Horizon withdrew its bid to acquire Depomed.  The outcome highlights the importance of careful drafting of confidentiality agreements, and the need for companies to regularly monitor compliance with their obligations under pre-existing agreements.

Background:  In 2013, … Read more

Iman Anabtawi (headshot)

Predatory Management Buyouts

Even where the business judgment rule does not apply in the first instance because its preconditions are not satisfied, Delaware corporate law allows the use of ex ante procedural protections to avoid ex post substantive judicial review. D. Gordon Smith makes this point in “The Modern Business Judgment Rule,” which is forthcoming in the Research Handbook on Mergers and Acquisitions. In my forthcoming article, “Predatory Management Buyouts,” I analyze the related question whether the procedural mechanisms that, under Delaware law, boards may implement in order to “sanitize” the conflict-of-interest taint present in management buyout (MBO) transactions … Read more

Skadden discusses Delaware Supreme Court Reaffirming Important Protections for Corporate Directors

A trio of opinions from the Delaware Supreme Court, each authored by Chief Justice Leo E. Strine, Jr., has reaffirmed Delaware’s deference to the business judgment of disinterested corporate decision-makers and restored important protections for directors that had been weakened by prior court decisions.

C&J Energy Services, Inc. v. City of Miami General Employees’ & Sanitation Employees’ Retirement Trust

First, in late 2014, in C&J Energy Services, Inc. v. City of Miami General Employees’ & Sanitation Employees’ Retirement Trust, 107 A.3d 1049 (Del. 2014), the Delaware Supreme Court vacated an injunction issued by the Court of Chancery and held … Read more

Davis Polk discusses Closing Your M&A Deal on a Weekend

In case you are wondering – no, this is not about making the closing more festive, or planning for a champagne celebration after the closing.

As companies think about the timing of the closing, several key drivers are leading both the buyer and the seller to strongly prefer a month-end closing (which could happen to fall on a weekend), especially:

  • Accounting and systems issues with having a cut-off date that is not at month-end for purposes of preparing the closing balance sheet or financial statements to be included in future public filings
  • The switch over of operational items and IT

Read more

Kirkland & Ellis discusses NOL Poison Pill – A Timely Prescription

With recent stock market volatility and sharp drops in stock market prices coupled with the continuing low interest rate environment, management and boards of directors of companies with significant net operating loss carryforwards (NOLs) may want to consider taking steps to preserve these valuable tax assets. Section 382 of the Internal Revenue Code applies formulaic limitations on the ability of a company to utilize its NOLs in future years if it undergoes an “ownership change” (i.e., an ownership increase of fifty percentage points or more by 5% shareholders of the company during a three-year testing period). In general, the … Read more

Larry Cunningham

Berkshire Hathaway as Idealized Private Equity

How different is private equity from Berkshire Hathaway? The phrase “private equity” has a certain ring to it, suggesting providing shareholder capital to buy and hold businesses.  In fact, most private equity firms use substantial debt to acquire companies, charge considerable fees to restructure them, and finally flip them as rapidly as possible, often to public capital markets.

Berkshire’s approach is essentially the opposite, and sounds more like what the phrase private equity connotes: regularly buying companies using solely its own capital, which includes leverage from insurance float but never debt, and holding subsidiaries permanently while giving managers free … Read more

Yvan Allaire and Francois Dauphin

The Game of “Activist” Hedge Funds: Cui Bono?

Over the last few years, hedge fund activism has received a great deal of coverage in financial media (and in the mainstream press), has triggered heated debates and been the focus of much academic research. Saviour of capitalism for some, for others, activist hedge funds are but mongers of short-term tactics which eventually damage business corporations[1].

Academic research on the topic mostly focused on the short-term returns surrounding the intervention date, and the few ones that examined the longer-term relationship with performance were often marred by various methodological issues. Coffee and Palia (2014), among others, beseeched researchers on … Read more

Wachtell Lipton discusses Delaware Supreme Court Holding that Fully Informed Stockholder Approval of Third-Party Mergers Shields Transactions from Review

In an important ruling last week, the Delaware Supreme Court reaffirmed that control of Delaware companies lies in the boardroom and held that the deferential business judgment rule is the “appropriate standard of review for a post-closing damages action” when a third-party merger “has been approved by a fully informed, uncoerced majority of the disinterested stockholders.”  Corwin v. KKR Fin. Holdings LLC, No. 629, 2014 (Del. Oct. 2, 2015) (en banc).

The ruling affirms the Court of Chancery’s dismissal of a case challenging KKR’s $2.6 billion acquisition of KKR Financial Holdings LLC (“KFN”), about which we previously wrote.  … Read more

Kirkland & Ellis explains the Recent Denial of the FTC’s Motion to Enjoin the Steris-Synergy Merger

On September 24, 2015, the U.S. District Court for the Northern District of Ohio denied the Federal Trade Commission’s (“FTC”) motion for a preliminary injunction to prevent the merger of Steris Corporation (“Steris”) and Synergy Health plc (“Synergy”), two providers of sterilization services for manufacturers predominantly in the healthcare industry.[1] Merger cases are rarely litigated, and the decision marks the first trial defeat in recent years for either of the U.S. antitrust agencies (the FTC and the Antitrust Division of the U.S. Department of Justice (collectively, the “Agencies”)), each of which has been successful in its active approach towards … Read more