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

…

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

…

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 …

How Technology Investment Drives Community Bank Consolidation

By Cheng Jiang, Jonathan Scott and Zhaowei Zhang March 26, 2024 by renholding

From 2011 to 2019, the number of bank charters fell by nearly one-third, from 7,357 to 5,177, with community banks accounting for three-quarters of this decline (FDIC Community Bank Report, 2020) In a new paper, we presents compelling …

Davis Polk Discusses FTC and DOJ Focus on Private Equity Investment in Healthcare

By Arthur J. Burke, Ronan P. Harty, Mary K. Marks, Howard Shelanski and Jesse Solomon March 13, 2024 by renholding

On March 5, 2024, the FTC, the DOJ and the U.S. Department of Health and Human Services announced that they are seeking public comment on private equity investment in the healthcare sector. The announcement coincided with the FTC’s workshop, Private …

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 …

Wachtell Lipton Discusses U.S. M&A Antitrust Enforcement for 2023 and the Year Ahead

By Ilene Knable Gotts, Nelson O. Fitts, Damian G. Didden, Christina C. Ma and Monica L. Smith January 22, 2024 by renholding

In 2023, leadership of the Federal Trade Commission and the Antitrust Division of the Department of Justice maintained an aggressive approach to merger enforcement, investigating and challenging transactions on the basis of a broad range of theories of harm articulated …

Skadden Discusses Delaware Chancery Decision on Who Can Recover Lost-Premium Damages

By Edward B. Micheletti and Lauren N. Rosenello January 18, 2024 by renholding

In October 2023, Chancellor Kathaleen St. J. McCormick of the Court of Chancery addressed an issue of first impression in Crispo v. Musk, C.A. No 2022-0666-KSJM, holding that “a provision purporting to define a target company’s damages to include …

Skadden Discusses Merger Enforcement and New Deal Strategies

By Joseph M. Rancour, Maria Raptis, Justine M. Haimi, Michael J. Sheerin and Bradley J. Pierson January 12, 2024 by renholding

Key Points

New merger guidelines reflect the aggressive approach that has defined merger enforcement in the Biden administration, including novel theories of harm.
Proposed changes to HSR notification will make merger filings more burdensome while providing agencies with more information

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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…

Skadden Discusses Proposed UK Reforms to Merger Process

By Bill Batchelor and Aurora Luoma December 6, 2023 by renholding

On November 20, 2023, the UK’s Competition and Markets Authority (CMA) announced proposed reforms to its in-depth merger control review process (the phase 2 review) that seek to provide more opportunities for engagement with decision makers and incentivise parties to …

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