Columbia Law School
Sky Blog
M & A
The Unforeseen Effects on M&A of Interest Limitation Regulations
For over two decades, policymakers worldwide have worked to combat profit shifting and tax avoidance, leading to the widespread adoption of anti-tax avoidance regulations. Notable examples include the European Union’s Anti-Tax Avoidance Directive and the Tax Cuts and Jobs Act …
Fried Frank Discusses SEC Expansion of Nonpublic Review Accommodations for Registration Statements
The Division of Corporation Finance of the Securities and Exchange Commission (the SEC) is expanding the available accommodations relating to nonpublic review of draft registration statements.
Previously, such accommodations had been available only to a subset of issuers: In 2012, …
Fix the Price or Price the Fix? Resolving the Sequencing Puzzle in Corporate Contracting
In our new paper, we offer a resolution to a longstanding puzzle in contract theory: Why do practitioners in several categories of high-stakes corporate transactions (such as M&A and financings) routinely fix price terms early, while leaving non-price terms …
Fixing MFW
Delaware’s regime governing controlling shareholders relies on the courts’ ability to police conflicted transactions under the stringent “entire fairness” standard of review. In theory, judicial review under this standard allows judges to distinguish between fair transactions and those that are …
Simpson Thacher Discusses DOJ’s Record $5.7 Million Gun-Jumping Settlement
On January 7, 2025, XCL Resources Holdings, LLC (“XCL”), XCL subsidiary Verdun Oil Company II, LLC (“Verdun”), and EP Energy LLC (“EP,” and with XCL and Verdun, the “Defendants”) agreed to a record-setting civil penalty of $5,684,377 (and related behavioral …
Wachtell Lipton Discusses What Awaits M&A in 2025
After a relative low in global M&A in 2023, the past year witnessed a moderate uptick as the pandemic receded further into the rear-view mirror, the U.S. economy stabilized, inflation declined (albeit with some renewed concern toward the end of
Gibson Dunn Discusses Supreme Court Ruling on Beneficial Ownership Information Reporting
The U.S. Supreme Court has stayed a recent district court order that preliminarily enjoined enforcement of the Corporate Transparency Act (CTA). While a separate district court ruling staying the effectiveness of the CTA’s beneficial ownership interest reporting rule (Reporting Rule) …
Gibson Dunn Discusses Record Gun Jumping Penalty Secured by FTC
On January 7, 2025, the U.S. FTC announced a settlement with three crude oil producers for violations of the gun jumping provisions of the HSR Act. XCL Resources Holdings, LLC (XCL), Verdun Oil Company II LLC (Verdun), and EP Energy …
ESG Dealmaking
Environmental, social and governance (“ESG”) concerns are driving businesses globally to re‐calibrate their mergers and acquisitions (M&A). In a new article, I contend that, despite a growing ESG backlash in the United States, ESG issues will continue to be …
Paul Weiss Discusses Business Groups’ Suit Seeking to Set Aside New HSR Rules
On January 10, 2025, the U.S. Chamber of Commerce, Business Roundtable, American Investment Council and a local chamber of commerce filed a complaint challenging the new Hart-Scott-Rodino (HSR) rules governing premerger notification. Plaintiffs allege that the new rules violate the …
Sidley Discusses Chancery Opinion Highlighting Importance of Clear Integration and Non-Reliance Provisions in M&A Agreements
Judge Medinilla’s recent opinion in Cytotheryx, Inc. v. Castle Creek Biosciences, Inc. is a reminder for practitioners to carefully consider whether an integration clause in a purchase agreement will be sufficient to bar extra-contractual misrepresentation claims. And although fraud claims …
Wachtell Lipton Discusses the Risk of Regulatory Arbitrage as a Merger Strategy
The announcement by Denver-based FirstSun Capital Bancorp and Seattle-based HomeStreet, Inc. on October 29 that the Federal Reserve and the Texas Department of Banking had asked them to withdraw their applications for approval of their pending merger illustrates the potential …
How Accounting Helps Hide Mergers from the FTC and DOJ
Evidence of a rise in corporate market power has drawn the attention of U.S. policymakers, prompting antitrust regulators to more closely scrutinize mergers and acquisitions (M&A) that consolidate product markets. Such consolidations are believed to be behind the increased market …
Why Rebuttable Structural Presumptions Improve Merger Review
Companies acquire or merge with each other for a variety of worthwhile reasons, ranging from managing uncertainty to gaining scale to accessing new resources. They also do it for less desirable reasons, including to gain market and political power, raise …
Why Activist Investors Are Rooting for Donald Trump
Year after year, the world’s activist-investor community meets at the Active-Passive Investor Summit, the premier shareholder activist conference in New York City, organized by research and advisory service 13D Monitor. Yet at this year’s gathering, on October 22, the mood …
Sullivan & Cromwell Discusses English Court Ruling on Material Adverse Event Clauses
In BM Brazil & Ors v Sibanye BM Brazil & Anor [2024] EWHC 2566 (Comm), the English Commercial Court decided a buyer was not entitled to rely on a material adverse effect (“MAE”) condition to terminate an M&A transaction, extensively …
Unravelling Bidding Strategies in M&A Transactions
Despite the trillions of dollars spent annually on mergers and acquisitions (M&A)[1], surprisingly little is known about the bidding strategies of potential acquirers and how negotiations unfold. For example, do bidders begin with a low-premium offer and increase …
Why Lost-Premium Damages in M&A Should Be Legal
Are “lost-premium” provisions – clauses that typically allow a target to recoup the premium its shareholders were denied because a buyer wrongfully backed out of a deal – enforceable? In a surprising decision last year, the Delaware Court of Chancery …
How Prior Links Between Private Equity Sponsors and Law Firms Affect LBO Loans
In leveraged buyouts (LBOs), a private equity (PE) sponsor acquires controlling ownership of a target company, typically by using a significant amount of bank loans. In a new study, we focus on a controversial issue: Many PE sponsors have prior …