Sidley Discusses Chancery Opinion Highlighting Importance of Clear Integration and Non-Reliance Provisions in M&A Agreements

By Ian M. Ross and Jarrett H. Gross November 26, 2024 by renholding

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 …

Freshfields Discusses Trump Administration’s Effects on Bank Regulation

By David Sewell, Alison Hashmall and Nariné Atamian November 21, 2024 by eorozco

Bank stocks surged the day after Donald J. Trump won election to a second presidential term, recording double-digit gains on a widespread view that financial regulation under the new administration will be more industry friendly than in the current one. …

Why Rebuttable Structural Presumptions Improve Merger Review

By Filippo Lancieri and Tommaso Valletti November 5, 2024 by renholding

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 …

Unravelling Bidding Strategies in M&A Transactions

By Audra L. Boone, Wouter De Maeseneire,, Sebastien Dereeper, Mathieu Luypaert and Mai Nguyen Thuy October 31, 2024 by renholding

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 …

Morrison & Foerster Discusses SEC’s Active Enforcement of Tender Offer Rules

By Spencer Klein, Joe Sulzbach, Rebecca Chacon Naranjo, Sahana Ragunathan and Hannah Yang October 9, 2024 by renholding

On September 6, 2024, the United States Securities and Exchange Commission (the SEC) charged Esmark Inc. (“Esmark”) and its Founder/Chairman and former CEO James Bouchard under Section 14(e) of the Securities Exchange Act of 1934 (“Exchange Act”) and Rule 14e-8…

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 …

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 …

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 …

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

…

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 …

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

…

A New and Improved Corpus of Definitive M&A Agreements for Public Access

By Peter Adelson, Matthew Jennejohn, Julian Nyarko and Eric Talley February 28, 2024 by renholding

The mature field of contract design dates back nearly a century, and it now features myriad rich and varied contributions seeking to characterize or test theories of how parties organize private law to shape and enhance their economic environments. …

The Power Five: Law as a Team Sport

By Tracey E. George, Mitu Gulati and Albert Yoon February 27, 2024 by renholding

Business is a team sport, and the schools that teach it understand this: They generally orient their assignments, their grades, and their classes around collaboration.

Law schools do basically none of these things. We train and assess law students as …

Why Are Acquiring Companies So Reluctant to Amortize Purchased Goodwill?

By Geoff Meeks February 22, 2024 by renholding

Controversy has persisted in recent decades over the accounting treatment of the vast sums expended on purchased goodwill – variously described as a “present-value estimate of future rents” from an acquisition or “the difference between what you pay [for an …

Cleary Gottlieb Discusses AI’s Risks for Boards and Managers

By David Lopez, Adam Fleisher, Daniel Ilan, Benet O’Reilly and Synne Chapman February 20, 2024 by renholding

Artificial intelligence (AI)[1] was the biggest technology news of 2023. AI continues to revolutionize business in big and small ways, ranging from disrupting entire business models to making basic support functions more efficient. Observers have rightly focused on the …

SEC Commissioner Dissents on Final SPAC Rules

By Mark T. Uyeda January 25, 2024 by renholding

Today [January 24], the Commission considers a lengthy adopting release of nearly 600 pages that extensively describes numerous disclosure, dissemination, forward looking statement, liability, and accounting provisions purportedly designed to advance investor protection and facilitate capital formation for special purpose …

Sullivan & Cromwell Discusses Major Changes to UK Listing Regime

By Vanessa K. Blackmore, Ben Perry, Esther S. Jeapes, Kirsten E.L. Rodger and Matthew Triggs January 4, 2024 by renholding

On December 20, 2023, the UK Financial Conduct Authority (“FCA”) published a detailed consultation paper proposing major reforms to the UK listing regime with particularly significant implications for listings of equity shares in commercial companies. The reforms are broadly consistent …

Sullivan & Cromwell Discusses Final DOJ and FTC Merger Guidelines

By Joseph J. Matelis, Renata B. Hesse, Steven L. Holley and Samantha F. Hynes December 22, 2023 by renholding

In July 2023, the Antitrust Division of the U.S. Department of Justice (the “DoJ”) and the Federal Trade Commission (“FTC”) issued Draft Merger Guidelines (available here) for public comment. As discussed in our prior memorandum to clients (available here…

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