Fried Frank discusses Delaware Appraisal Arbitrage as a New Activist Weapon

From 2004 through 2010, the number of appraisal petitions filed in Delaware rose and fell roughly in parallel with the overall level of merger activity, with appraisal rights being asserted in about 5% of the transactions for which they were available. In 2011, however, the rate of petitions more than doubled (to 10%) and it has continued to increase. In 2013, 28 appraisal petitions were filed in Delaware, representing about 17% of appraisal eligible transactions. In 2014, so far, more than 20 appraisal claims already have been filed in Delaware. The amounts at stake in appraisal actions have increased as … Read more

Sullivan & Cromwell discusses Proposed Regulation of Private Equity Investment in Insurers

SUMMARY

Citing a trend in recent years of private equity firms acquiring insurers, particularly life insurers writing fixed and indexed annuity contracts, the New York State Department of Financial Services on May 14, 2014 released for public comment proposed amendments to its regulations governing the approval process for the direct or indirect acquisition of control of insurance companies domiciled in New York. The proposed amendments seek to reduce “the possibility that any person seeking to acquire control of a New York domestic insurer has interests that conflict with the interests of policyholders, shareholders or the public” and “minimiz[e] the potential … Read more

Cadwalader discusses Another Lesson for a Reasonable Sale Process in Delaware

In a recent decision, Chen v. Howard-Anderson, the Delaware Chancery Court once again questioned the reasonableness of how a board conducted the sale of a company when it permitted stockholder claims to go to trial. The decision provides yet another reminder—if one is needed—that boards and their advisors need to ensure that a sale process is conducted in a manner that promotes a level playing field for all bidders and that disclosure to stockholders provides a fair and balanced description of the process.

Background

Former stockholders of Occam Networks Inc. are challenging the February 2011 merger of Occam and … Read more

Hedge Fund Activism: New Myths and Old Realities

Two recent developments have changed the playing field of corporate governance: (1) the Delaware Chancery Court’s ruling this month on the use of a two-tier poison pill in the Sotheby’s case (and Sotheby’s quick and conciliatory settlement two days later, which conceded three  seats on Sotheby’s expanded board to Third Point LLC, a particularly aggressive hedge fund),[1] and (2) the joint $50 billion bid of Pershing Square Capital Management and Valeant Pharmaceuticals International Inc. for Allergan Inc.[2]  In their wake, every pundit has announced that this is the heyday of hedge fund activism.  Fund managers now hold the whip hand, … Read more

The Sotheby’s Poison Pill Case: The Plate Tectonics of Delaware Corporate Governance

The best part of a Delaware Chancery Court opinion is the first 30 or so pages. In most important cases, the opinion typically starts by telling a story – a detailed account of the people who figure in the dispute, what they did, their motives and personalities, and how this character-driven narrative resulted in the dispute the court must resolve.  Often there is drama: exposition, crisis and denouement.  The recent decision over the validity of a poison pill invoked to disadvantage Third Point’s effort to dislodge Sotheby’s management is a great example.  The interest and importance of the case is … Read more

Appraisal Arbitrage and the Future of Public Company M&A

The following post comes to us from Charles Korsmo, Assistant Professor at Case Western Reserve University School of Law, and Minor Myers, Assistant Professor at Brooklyn Law School.  It is based on their recent paper entitled “Appraisal Arbitrage and the Future of Public Company M&A” and is available here.  

Stockholder appraisal has been thrust into the spotlight by two high-profile and very large appraisal actions in Delaware involving the Dell and Dole going-private transactions. As we show in our forthcoming article, “Appraisal Arbitrage and the Future of Public Company M&A,” these two cases are part of a larger trend … Read more

Wachtell Lipton discusses A New Takeover Threat: Symbiotic Activism

The Pershing Square-Valeant hostile bid for Allergan has captured the imagination. Other companies are wondering whether they too will wake up one morning to find a raider-activist tag-team wielding a stealth block of their stock. Serial acquirers are asking whether they should be looking to take advantage of this new maneuver. Speculation and rumor abound of other raider-activist pairings and other targets.

Questions of legality are also being raised. Pershing Square and Valeant are loudly proclaiming that they have very cleverly (and profitably) navigated their way through a series of loopholes to create a new template for hostile acquisitions, one … Read more

BakerHostetler discusses Retaining the Attorney-Client Privilege in a Merger

In Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, Chancellor Strine of the Delaware Chancery Court recently reaffirmed that the target company in a Delaware merger is the sole holder of the attorney-client privilege to communications with its counsel and the privilege cannot be claimed by the seller (the target’s shareholders). The Great Hill case involved a buyer who filed suit for fraudulent inducement by the seller following the consummation of the buyer’s merger with a company owned by the seller because the buyer found troubling communications between the seller and counsel for the … Read more

Sullivan & Cromwell discusses In re Orchard Enterprises, Inc. Stockholder Litigation

In October 2009, Dimensional Associates, LLC (“Dimensional”), the controlling stockholder of The Orchard Enterprises, Inc. (“Orchard”), which held 42% of Orchard’s outstanding common stock and 99% of its outstanding convertible preferred stock that collectively gave it approximately 53% of Orchard’s outstanding voting power, formally proposed a squeeze-out merger at a price of $1.68 per share, representing a 25% premium to the then-current stock price. Orchard’s board responded by forming a special committee with a mandate that included the right to negotiate or reject a transaction with Dimensional and to solicit interest from other third parties. While four of the five … Read more

The Marketplace of Ideas: Should the SEC change the rules on blockholder disclosure?

The CLS Blue Sky Blog presents Part II of the third installment of our series, “The Marketplace of Ideas.” Earlier installments on different topics are available here and hereThe intent is to present different perspectives on the same subject by two or more authors.

Today, the subject is how the SEC should respond to Dodd Frank’s invitation to rethink the disclosure of beneficial ownership under Section 13(d). We have asked a number of experts for their views.

In Part I of this installment, available here, we heard from Professors Ronald J. Gilson of Columbia Law School and … Read more

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The Truth About Shareholder Activism

The following comes to us from Paul C. Hilal, a Partner at Pershing Square Capital Management, a New York City-based hedge fund founded in 2004.

Is shareholder activism good for the world?

A simple question, and yet it’s the subject of intense debate.  Proponents say activists play a key role in the markets, shaking up entrenched interests and unlocking long-term value by acting as change agents.  Critics claim activism pumps up short term stock prices for the benefit of the activists at the expense of long term interests of companies and their shareholders.

Who’s right and what does that suggest … Read more

Our Debate on the Williams Act and Shareholder Activism: Takeaways for the SEC

Our Blog’s most recent Marketplace for Ideas series has considered whether the SEC should tighten its rules under the Williams Act, which now require that investors must disclose purchases of a 5% or greater stake in public companies within ten days of crossing the 5% level. This debate began in March 2011, when Wachtell, Lipton, Rosen and Katz first petitioned the SEC to reduce the disclosure window from ten days to one, and SEC Staff immediately signaled that they were indeed inclined to tighten the disclosure period. In response, Lucian Bebchuk and I filed a comment letter urging the SEC … Read more

Cadwalader discusses Delaware Supreme Court Decision Upholding Business Judgment Rule Review for Certain Controlling Stockholder Transactions with Dual Minority Protections

On March 14, 2014, the Delaware Supreme Court upheld the Court of Chancery’s 2013 decision in In re MFW Shareholders Litigation , holding that in going-private mergers where there is a controlling stockholder, the use of both a truly independent special committee and a majority of the minority stockholder vote, allows for judicial review under the deferential business judgment standard.

Background

In mid-2011, Ronald Perelman’s wholly-owned holding company, MacAndrews & Forbes, a 43% stockholder of M&F Worldwide (MFW), made a proposal to take MFW private by acquiring the minority shares at $24 per share. In its initial proposal, MacAndrews & … Read more

Weil Gotshal discusses SEC Speaks 2014: Charting a New Course for Enforcement Efforts

This year’s “SEC Speaks” conference in Washington, D.C., was most notable for an obvious shift in the SEC’s enforcement priorities. Several significant issues and efforts that had been the subject of extensive discussion last year – including financial crisis and insider-trading cases and the task force devoted to new and structured products, among others – received little or no attention this year. On the other hand, several new initiatives received very substantial emphasis, including principally the Commission’s new efforts in the public company accounting and financial statements area, and in the microcap fraud area. SEC Chair Mary Jo White highlighted … Read more

Wachtell responds to Bebchuk and Jackson’s Toward a Constitutional Review of the Poison Pill

In a recent paper, Professors Lucian Bebchuk and Robert Jackson have extended Professor Bebchuk’s extreme and eccentric campaign against director-centric governance into a new realm—that of the Constitution of the United States. They claim that “serious questions” exist about the constitutionality of the poison pill—or, more precisely, “about the validity of the state-law rules that authorize the use of the poison pill.” It is likely, they argue, that these state-law rules violate the Supremacy Clause of the Constitution, and are thus preempted, because they frustrate the purposes of the Williams Act, the 1968 federal statute that governs tender-offer timing … Read more

Majority-of-the-Minority Voting and Fairness in Freezeout Mergers

In a landmark decision now on appeal, In re MFW Shareholders Litigation, the Delaware Chancery Court ruled that a freezeout merger negotiated by an independent special negotiating committee (SNC) and conditioned in advance on approval by a majority-of-the-minority (MOM) vote should be reviewed under the business judgment rule. Before MFW, the practice was to review all such mergers for entire fairness, albeit with the burden on the plaintiff if the merger is either negotiated by an independent SNC or ratified in a fully-informed MOM vote. In contrast, review under the business judgment rule requires plaintiffs to plead and prove their … Read more

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Wachtell Lipton on Acquisition Financing: the Year Behind and the Year Ahead

Following a robust 2012, the financing markets in 2013 continued their hot streak. Syndicated loan issuances topped $2.1 trillion, a new record in the United States. However, as in 2012, financing transactions in the early part of 2013 were devoted mostly to refinancings and debt maturity extensions rather than acquisitions.  In fact, new money debt issuances were at record lows during the first half of 2013.  The second half of 2013, though, saw an increase in M&A activity generally, and acquisition financing in the fourth quarter and early 2014 increased as a result.
Investment Grade Acquirors

Debt markets have been … Read more

Cleary Gottlieb discusses U.S. Supreme Court’s Sharp Limits on General Jurisdiction Over Corporate Defendants

On January 14, the U.S. Supreme Court issued Daimler AG v. Bauman, further clarifying—and significantly narrowing—the constitutional limitations on a court’s assertion of general jurisdiction over a corporate defendant. Bauman carries significant implications for how corporate defendants should evaluate their amenability to the general jurisdiction of U.S. courts.

Where a court possesses “general” or all-purpose jurisdiction over a defendant, it has personal jurisdiction in any lawsuit against that defendant, regardless of whether the suit arises out of the defendant’s contacts with the forum. If no general jurisdiction exists, a court still may exercise “specific” jurisdiction over a corporate defendant where

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Rise of IntercontinentalExchange and Implications of its Merger with NYSE Euronext

The following comes to us from Latoya C. Brown, a practicing attorney in Florida and a former intern at the US Securities & Exchange Commission. The views expressed herein are those of the author and not necessarily those of the Commission.

On November 8, 2013, NYSE Euronext (“NYSE”) announced the timeline for the completion of its acquisition by IntercontinentalExchange (“ICE”).  As discussed in my recent article, Rise of IntercontinentalExchange and Implications of its Merger with NYSE Euronext, the combination of these two companies exemplifies a trend toward the creation of mega-exchanges that permit electronic trading of broad groups of … Read more

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The Dwindling of Revlon

In this blog post, I trace why my co-author Rob Ricca and I have concluded that the landmark 1986 Revlon ruling is, today, an insipid and remedially insignificant doctrine.  Its overly exalted place in M&A law endures because it is wrongly regarded in narrow, silo-like doctrinal isolation, even though it can only be understood as one part of a legal landscape that has dramatically changed since the mid-1980s.

The iconic Revlon doctrine has been an assumed, accepted, and integral part of M&A law for almost three decades.  In Revlon, the Delaware Supreme Court ruled that, in a corporate break-up sale, … Read more