Wachtell Lipton Discusses the New Administration and Antitrust Merger Remedies

By Christina C. Ma and Itai Y. Thaler June 12, 2025 by renholding

The Federal Trade Commission and the DOJ’s Antitrust Division recently announced two settlement agreements, signaling that this Administration is willing to resolve merger competition concerns — in appropriate cases — through negotiated divestiture remedies. These actions herald a return to …

Arnold & Porter Discusses Washington State’s First of Its Kind Premerger Notification Law

By Debbie Feinstein and Patrick Shaw April 30, 2025 by renholding

The state of Washington became the first to enact a broad premerger notification law covering transactions across all industries. The law, S.B. 5122,[1] was enacted on April 4, 2025, and goes into effect July 27, 2025. S.B. 5122, modeled …

Simpson Thacher Discusses DOJ’s Record $5.7 Million Gun-Jumping Settlement

By Peter Guryan, Karen Kazmerzak, Preston Miller, Maxime Fischer-Zernin and Nicholas Prendergast February 10, 2025 by renholding

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

By Wachtell, Lipton, Rosen & Katz February 4, 2025 by renholding

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

…

Paul Weiss Discusses Potential Merger Enforcement Changes in the Trump Administration

By Katharine R. Haigh, Scott A. Sher, Christopher M. Wilson, Mark R. Laramie and Sahil Sheth November 19, 2024 by renholding

With the change of administrations in January 2025, antitrust enforcement priorities are likely to shift next year. We expect the Antitrust Division of the Department of Justice (DOJ) and Federal Trade Commission (FTC) in the Trump Administration to continue to …

Wachtell Lipton Discusses the Risk of Regulatory Arbitrage as a Merger Strategy

By Edward D. Herlihy, Richard K. Kim and Jacob A. Kling November 12, 2024 by renholding

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

By John D. Kepler, Charles McClure and Christopher R. Stewart November 11, 2024 by renholding

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

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 …

Sullivan & Cromwell Discusses English Court Ruling on Material Adverse Event Clauses

By Jeremy Kutner, Hattie R. Middleditch, Ben Perry and Matthew Triggs November 4, 2024 by renholding

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 …

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 …

Nevadaware Divergence: How Nevada and Delaware Really Differ in Corporate Law

By Wendy Gerwick Couture August 29, 2024 by renholding

The differences between Nevada and Delaware corporate law – which I call “Nevadaware divergence” – are the subject of media attention, scholarly critique, and current litigation. The common wisdom is that Nevada is, as some say, “the place to reincorporate …

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 …

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 …

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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Sullivan & Cromwell Discusses Delaware Supreme Court Ruling on MFW’s Application to Controller Transactions

By Eric M. Krautheimer, Melissa Sawyer, Matthew A. Schwartz, Matthew L. Strand and Mimi Wu April 12, 2024 by renholding

In the important 2014 case of Kahn v. M & F Worldwide Corp., the Delaware Supreme Court held that freeze-out mergers, in which a controlling stockholder takes a company private, are subject to Delaware’s heightened “entire fairness” standard of …

Cleary Gottlieb Discusses How Merger Safe Harbor for Sherman Act Violations Punishes Innocent Acquirers

By Heather S. Nyong'o, Jeremy J. Calsyn and Joseph M. Kay April 5, 2024 by renholding

In March 2024, the U.S. Department of Justice (“DOJ”) revised its Justice Manual to include a new safe harbor for acquiring companies that self-report criminal conduct by an acquired company identified in due diligence (the “Safe Harbor”). When the Safe …

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