Last week, John shared a blog from Tulane Law prof Ann Lipton flagging a recent transaction where the parties contemplated a charter amendment in the merger agreement to fix the Con Ed clause enforceability issues highlighted by Chancellor McCormick’s recent decision in Crispo v. Musk. John noted that the company hasn’t filed its proxy statement […]

Historically, the FTC & DOJ’s merger guidelines have had a significant influence on how courts interpret federal antitrust laws.  But the new guidelines announced last month take a much more aggressive tone than prior versions, and in light of the antitrust agencies’ decidedly mixed record in the courts when it comes to merger challenges, it’s […]

As continuation fund strategies have become more important to private equity sponsors, the role of Limited Partner Advisory Committees, or LPACs, in policing potential conflicts of interest has grown.  But as this excerpt from a recent Institutional Investor article points out, their role and responsibilities often aren’t clear: Today, the role of LPACs has become even […]

Over on The Business Law Prof Blog, Prof. Ann Lipton flagged a recent transaction that came up with a fix for the Con Ed clause enforceability issues highlighted by Chancellor McCormick’s recent decision in Crispo v. Musk. Ann noted the possibility of amending the DGCL to address the enforceability issues, but then pointed out that […]

Following implementation of the SEC’s universal proxy rules, disputes about activists’ compliance with advance notice bylaws have become one of the key battlegrounds in proxy contests. Last week, in Kellner v. AIM Immunotech, (Del. Ch.; 12/23), the Chancery Court addressed a challenge to amendments to a company’s advance notice bylaw adopted during a proxy contest. […]

We’ve written extensively about the FTC and DOJ’s aggressive approach to antitrust enforcement — from the cases pursued to the expanded premerger notification rules to the final Merger Guidelines announced just this week — and its potential impact on M&A activity. This recent Weil alert notes that these trends chill M&A activity in another way […]

On Monday, the DOJ and FTC announced the release of the final 2023 Merger Guidelines. The draft guidelines were published back in July. As expected, the guidelines formalize a “notable shift toward more aggressive merger control enforcement” as described in this White & Case memo. However, there were significant changes from the draft form. The […]

This Dechert memo looks back at Delaware opinions on books and records demands in the last year and makes recommendations for drafting minutes and gathering responsive documents. It highlights two recent decisions that show the need to be judicious with any redactions when producing materials. First, [a decision] criticized a series of relevance redactions that […]

This fall, I blogged about the potential importance of taking a broader approach to identifying key talent critical to retain during an acquisition or merger. The article “Retaining Employees Below the C-Suite During a Merger” in the December 2023 Debevoise MarketCheck says that merger parties have recently been doing just that given regulatory pressures increasing […]

Delaware’s MFW doctrine was originally developed to offer a path to the business judgment rule for squeeze out mergers.  Over time, however, its use has expanded into a variety of other settings.  MFW’s expansion has attracted some pretty high-profile opposition.  Most notably, former Chief Justice Leo Strine, former Vice Chancellor Jack Jacobs and Penn Law […]