M & A

Why Lost-Premium Damages in M&A Should Be Legal

By Jonathan Chan and Martin Petrin October 24, 2024 by renholding

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

By Yijia (Eddie) Zhao, Ruiyuan (Ryan) Chen, Douglas J. Cumming and Binru Zhao October 23, 2024 by renholding

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 …

Wachtell Lipton Discusses FTC’s Sweeping Changes to HSR Reporting Obligations

By Ilene Knable Gotts, Christina C. Ma, Monica L. Smith and Gray W. Decker October 15, 2024 by renholding

On October 10, 2024, the Federal Trade Commission (“FTC”), with the concurrence of the Antitrust Division of the Department of Justice (“DOJ”), announced the FTC’s unanimous vote to adopt a final rule implementing significant changes to the reporting obligations under …

Davis Polk Discusses Key Takeaways from Bank Merger Policy Updates

By Luigi L. De Ghenghi, Randall D. Guynn, Eric McLaughlin, David L. Portilla and Howard Shelanski October 2, 2024 by eorozco

The DOJ, FDIC and OCC have revised their bank merger review standards. The new standards are a major shift for bank M&A and will require a careful, detailed analysis to evaluate the viability of any proposed transaction.

The Federal Deposit …

Sullivan & Cromwell Discusses Delaware Decision Dismissing Claims Against Controlling Shareholder

By Jacob E. Cohen, Brian T. Frawley and John L. Hardiman September 23, 2024 by renholding

Vice Chancellor J. Travis Laster dismissed claims two weeks ago against a controller in Clement v. Apollo Global Management, LLC. Plaintiff alleged that a merger was unfair because the controller allegedly extracted “unique benefits” in the merger. The court …

Paul Weiss Discusses Ruling on Limits of European Commission’s Power to Review Deals

By Nicole Kar, Rich Pepper, William Feerick, Andrea Wei Ling Chong and Timothy Noelanders September 10, 2024 by renholding

The European Court of Justice (“ECJ”) has upheld an appeal against the European Commission’s ability to accept referrals under Article 22 of the EU Merger Regulation (“EUMR”) from national competition authorities who are not competent to …

How Do Multiple Regulators Regulate?

By Phil Berger, Rachel Geoffroy, Claudia Imperatore and Lisa Yao Liu August 15, 2024 by renholding

The process of producing and disseminating financial reporting disclosures often involves multiple parties, each of whom is under the authority of a specialized regulator. For example, certain information in 10-K filings is provided by third parties who operate under a …

A New Approach to Contract Formation in Preliminary Acquisition Negotiations and Agreements

By Joseph Franco August 13, 2024 by renholding

Columbia Law School Professor Allan Farnsworth once confidently asserted that common law contract “doctrines, imaginatively applied, are both all that are needed and all that are desirable” to protect participants in preliminary contract negotiations and agreements (what I refer to …

Contractual Remedies in Mergers: Lessons from Crispo v. Musk

By Dhruv Aggarwal, Albert H. Choi and Geeyoung Min July 22, 2024 by renholding

What remedy should a target be entitled to get from a breaching buyer in a merger transaction? This seemingly straightforward question has surprisingly vexed M&A practitioners and judges over the years.

With a public target, the buyer typically promises to …

Arnold & Porter Discusses Delaware Decision on Whether Soft-Earnout “Promises” Are Fraud or Puffery

By Thomas Yadlon and Tracy A. Belton July 15, 2024 by renholding

When a portion of the purchase price in an acquisition is contingent on the earnings or other performance metric(s) of the acquired business post-closing (i.e., an “earn-out” provision), buyers and sellers routinely discuss their aspirations and expectations regarding the go-forward …

Skadden Discusses FTC-DOJ Request for Information on Serial Acquisitions and PE Roll-Ups

By Tara Reinhart, Ken Schwartz, Mike Sheerin, Dave Wales and Julia York June 10, 2024 by renholding

On May 23, 2024, the Federal Trade Commission (FTC) and Antitrust Division of the Department of Justice (DOJ) jointly announced a request for members of the public to provide information that the agencies can use “to identify serial acquisitions and …

Goodwin Procter Discusses Add-On Acquisitions in Private Equity

By Jim Moriarty, Gregory Cage and Victoria Woodward June 4, 2024 by renholding

Over the past several years, sponsors have increasingly relied on add-on acquisitions to increase the value of their portfolio company investments. As EBITDA and revenue multiples on larger platform acquisitions increased through 2021 and into the early part of 2022, …

Sullivan & Cromwell Discusses New IRS Ruling Policy on Spin-Off Transactions

By M. John Jo, Jameson S. Lloyd, Stephen J. Profeta and Davis J. Wang May 20, 2024 by renholding

On May 1, 2024, the IRS and the Department of the Treasury issued Rev. Proc. 2024-24 (the “New Rev. Proc.”), which establishes revised standards for taxpayers seeking private letter rulings on tax-free spin-offs, focusing in particular on, among other things, …

Skadden Discusses CFIUS Proposal to Expand Its Authority, Tighten Time Frames, and Boost Penalties

By Brooks E. Allen, Brian J. Egan, Michael E. Leiter, Tatiana O. Sullivan and Sruthi Venkatachalam May 15, 2024 by renholding

On April 15, 2024, the secretary of the Department of the Treasury, as chair of the Committee on Foreign Investment in the United States (CFIUS or Committee), published a notice of proposed rulemaking (Proposed Rule) to expand CFIUS’ investigation and …

Should Companies Announce Reviews of Strategic Alternatives?

By Jenny Zha Giedt May 13, 2024 by renholding

A company’s announcement that it is undertaking a “review of strategic alternatives” is Wall Street code for exploring a potential sale or merger. Though no transaction may occur, the announcement signals that the company is due for a shake up, …

Paul Weiss Discusses Merger Guidelines Featured in FTC Handbag Case

By Andrew C. Finch, Scott A. Sher, Aidan Synnott, Thomas Rucker and Mark R. Laramie May 7, 2024 by renholding

• The FTC recently sued to block Tapestry’s proposed acquisition of Capri, alleging that the effect of the combination of the companies’ handbag brands may be to substantially lessen competition.
• The complaint relies heavily on the December 2023 FTC-DOJ Merger Guidelines

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Skadden Discusses Seventh Circuit Decision on Mootness Fees in Lawsuits Challenging Mergers

By Marcie Lape (Raia), Chuck Smith and Lauren Sexton May 3, 2024 by renholding

The U.S. Court of Appeals for the Seventh Circuit in Jorge Alcarez, et al. v. Akorn Inc., et al.¹ mapped out one means by which a court may evaluate mootness fees paid to individual shareholders after the voluntary dismissal …

Private Equity’s Neglected Pre-History: A Trans-Atlantic Perspective

By Marc Moore May 1, 2024 by renholding

Large-scale private equity buyouts, and the increasingly gargantuan financial firms that spearhead them, are commonly regarded as staples of today’s financialized corporate economy. However, this has not always been the case and, up until recently, private equity firms and funds …

Sullivan & Cromwell Discusses Changes to UK Takeover Code

By Jeremy Kutner, Ben Perry and Matthew Triggs May 1, 2024 by renholding

On April 24, 2024, the UK’s Panel on Takeovers and Mergers (the “Panel”) published a consultation paper which proposes to narrow the scope of the companies to which the City Code on Takeovers and Mergers (the “Code”) applies.

The Code …

Skadden Discusses Proposed DGCL Amendments’ Impact on Stockholder Agreements, M&A Practices

By Allison L. Land, Edward B. Micheletti and Lauren N. Rosenello April 24, 2024 by renholding

On March 28, 2024, the Council of the Corporation Law Section of the Delaware State Bar Association (DSBA) approved proposed amendments to the Delaware General Corporation Law (DGCL) in order to align the DGCL’s provisions with current market practices following

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