Delaware bar recommends DGCL amendments, including officer exculpation charter provisions

The Council of the Corporation Law Section of the Delaware State Bar Association has provided recommendations to the Delaware General Assembly for a number of changes to the Delaware General Corporation Law, some of them significant, such as an amendment authorizing charter provisions that would eliminate the personal liability of specified officers […]

Schemes of Arrangement: Dodgy Plots or Effective Ways to Purchase UK Companies?

1. What is a scheme of arrangement and when might you use it? While the word ‘scheme’ may give you pause, a scheme of arrangement is a well-trodden path to purchase UK companies via a court-approved process. A scheme of arrangement is the most common structure for acquiring a UK […]

Is the SEC process for SPAC registration statements Kafkaesque?

“Statement Regarding SPAC Matter,” is the latest from SEC Commissioner Hester Peirce.  Seems completely anodyne, doesn’t it? But, as they say, looks can be deceiving. Instead, it’s a withering criticism of the SEC’s failure to declare a SPAC registration statement effective in time to allow a de-SPAC merger to go forward, […]

Delaware Advance Notice Decisions Highlight Move Toward Enhanced Scrutiny of Board Actions, Even Where Conflicts Exist

Like US constitutional law, Delaware courts apply a tiered standard of judicial review to actions taken by the board of directors of corporations: Business judgment deference (rational basis). Enhanced scrutiny under Unocal and Revlon (intermediate scrutiny). The compelling justification standard articulated in Blasius (strict scrutiny). In the constitutional arena, the […]

New SEC proposal takes on SPACs

Yesterday, the SEC voted, three to one, to propose new rules and amendments regarding SPACs, shell companies, the use of projections in SEC filings and a rule addressing the status of SPACs under the Investment Company Act of 1940. The proposal arrives in the context of calls from various corners, […]

Corp Fin issues new M&A-related CDIs

Last week, the SEC issued a number of new CDIs related primarily to M&A transactions, including Forms 8-K, communications under Rule 14a-12, and, in the context of de-SPAC transactions, the Rule 14e-5 prohibition of purchases outside of a tender offer. To learn more about these updates, please see the recent […]

ESG and M&A: Vetting a Target’s ESG Strengths and Weaknesses to Assess Value, Go-Forward Risks and Disclosure Requirements

The corporate sector’s approach to environmental, social and governance (ESG) issues – or “ESG” (the shorthand by which they are commonly referred) – has risen in prominence in recent years as investors have become increasingly socially conscious. It’s clear that what was once just an industry buzzword is here to […]

Delaware (Again!) Requires Upward Adjustment to Deal Price in Appraisal Proceeding Despite Objectively Fair Sales Process

A recent Court of Chancery decision adds yet another wrinkle to the appraisal landscape and the potential for appraisal arbitrage. In BCIM Strategic Value Master Fund LP v. HFF, Inc. (Del. Ch. Feb. 2, 2022), the court found that—despite a sufficiently robust sales process that supported ascribing heavy weight to […]

Hart-Scott-Rodino Act Thresholds Jump in 2022

Basic ‘size-of-transaction’ threshold now $101 million The Hart-Scott-Rodino Act thresholds, which govern when mergers and acquisitions must be reported to the US Department of Justice and Federal Trade Commission, will jump 9.8% in February 2022. The basic “size-of-transaction” threshold will increase from $92 million to $101 million. The FTC announced […]

Antitrust Trends to Look Out for in 2022

One year into his administration, President Joe Biden has made clear that aggressive competition policy is on the agenda. With a team of progressives filling leadership roles at the Federal Trade Commission and in the Antitrust Division of the US Department of Justice, companies are able to predict what the […]

Cooley’s 2021 Life Sciences M&A Year in Review

General trends in life sciences M&A Although the COVID-19 pandemic that defined 2020 continued to shape much of the life sciences industry in 2021, the way that it did was markedly different. While 2020’s M&A landscape was characterized by whiplash volatility from choppy deal activity in the first half of […]

Cooley’s 2021 Tech M&A Year in Review

General trends in tech M&A Hello, (virtual) world once again! Despite everyone’s efforts in 2021, including the rollout of vaccines and varying rounds of lockdowns and work-from-home mandates, a true “return to normal” for M&A dealmakers was foiled anew by COVID-19 and its variants. Undeterred by the pandemic, high target […]

Delaware Finds Stockholder Claims Against SPAC Fiduciaries Subject to Entire Fairness Review

As SPAC IPOs broke records – in both value and volume – in 2020 (and again in 2021), it was inevitable that stockholder litigation would follow. More than 50% of the SPACs that went public in 2020 and 2021 are incorporated in Delaware, giving particular significance to SPAC litigation filed […]

Event Recording: Berkeley Fall Forum on Corporate Governance

Cooley and the Berkeley Center for Law and Business met for a two-day hybrid conference, featuring panel discussions, workshops and interviews on cutting-edge topics in corporate governance, M&A and business law. The Berkeley Forum was hosted live in San Francisco, in accordance with local safety regulations and vaccine mandates, and […]

Pleading Bad Faith Against Special Committee Members: A New Trend?

Special committees, by design, are created to address conflicts and to insulate the board of directors from liability for the very conflicts that may invite judicial scrutiny of the fairness of the board’s decision. A well-functioning special committee will also mitigate the risk of personal liability for a company’s fiduciaries, […]

Proposed Federal Tax Legislation Would Reduce QSBS Benefit and Raise Capital Gain Rates

Last week, the House Ways and Means Committee announced its consideration of federal tax legislative proposals that include reducing the exclusion from income of gain on the sale of qualified small business stock (QSBS) and increasing the tax rate on long-term capital gains, in each case for noncorporate upper-income taxpayers.

Event Recording: The Impact of Foreign Investment Screening Regimes on M&A Transactions

Recent years have seen a proliferation of foreign investment screening and control regimes worldwide, and with them, heightened government scrutiny of foreign investment transactions. The implementation of such “foreign direct investment” (FDI) regimes has accelerated as national governments broaden their conceptions of national security issues and seek to protect an […]

Cooley Stands Apart in Women and M&A Deal Leadership

A recently published article by UC Davis School Law Professor Afra Afsharipour, “Women and M&A,” shows that of the 20 firms handling the most significant public M&A transactions from 2014 to 2020, Cooley is the only firm with equal gender representation in leading roles across such deals. “The outlier position […]

President Biden’s Executive Order on Competition: Three Important Takeaways for Tech and Life Sciences Companies

On July 9, President Joe Biden issued an executive order on “Promoting Competition in the American Economy.” With 72 initiatives and directives by more than a dozen federal agencies, the order seeks to aggressively “reduce the trend of corporate consolidation, increase competition, and deliver concrete benefits to America’s consumers, workers, farmers, and small businesses.” […]

Keeping Up with Delaware Appraisal Jurisprudence Since Aruba: Deal Price Reigns Supreme, But Will Recent Decision Lead to More Arbitrage?

In a string of seminal decisions from 2017 through 2019 (DFC Global, Dell and Aruba), the Delaware Supreme Court re-shaped appraisal jurisprudence, in each case by overturning the Court of Chancery for failing to give adequate weight to deal price as the most reliable indicator of fair value. In the […]

Event Recording: M&A Dealmakers Roundtable: Tech M&A Outlook for a Post-COVID World

How has dealmaking changed in the last 18 months? Have we developed new playbooks or best practices? Will the market continue to accelerate through 2021 and beyond? What does all of this mean for the wider tech sector? Seasoned M&A dealmakers met on June 30, 2021 for a discussion on […]

Have Your Cake, and Closing Too: Invoking Prevention Doctrine, Delaware Chancery Court Grants Seller’s Request for Specific Performance in COVID-Related M&A Dispute

Chancellor McCormick’s opinion in Snow Phipps Group, LLC, et al. v. KCake Acquisition, Inc., et al. (Del. Ch. April 30, 2021) is 125 pages long, but she helpfully digests the holding in a single sentence on page 3: “Chalking up a victory for deal certainty, this post-trial decision resolves all […]

2021 M&A Editorial Advisory Board

Caitlin Gibson has been named to Law360’s 2021 M&A Editorial Advisory Board, which provides feedback on Law360’s coverage and expert insight on how best to shape future coverage. Read the Law360 article here (Subscription required) Contributors Caitlin Gibson

Event Recording: The Tech M&A Bounceback

Axios + Cooley hosted a virtual event on new deal-making in tech M&A. We discussed the future of the market and how innovative teams are getting things done. Axios Technology & Business Reporter Kia Kokalitcheva and Business Editor Dan Primack hosted conversations with: Stewart Butterfield – Co-founder & CEO, Slack […]

SPAC Trend Gives Rise to Securities Enforcement and Litigation Risks

What is a SPAC Special purpose acquisition companies (SPACs) are on the rise. A SPAC is a publicly traded shell company with no underlying operating business that seeks to merge with a target operating company. According to Nasdaq, in 2015, SPACs made up approximately 12% of the IPO market, but by […]

Podcast: For Women to Climb in M&A, Male Allyship is ‘Essential’

In an installment of Law.com’s “Legal Speak” podcast, Jamie Leigh, partner and co-chair of Cooley’s mergers and acquisitions practice group, discusses the various levels of support needed to help build more diverse and equitable M&A teams in Big Law, including male allyship, as well as the importance of strategic thinking […]

HSR Headwinds: FTC Hits ‘Pause Button’ on HSR Early Terminations

Parties to transactions requiring filings under the Hart-Scott-Rodino (HSR) Act are already facing considerable headwinds from US President Joe Biden’s antitrust enforcement agencies on important substantive and procedural issues that will delay transactions closing and potentially increase compliance costs and burdens. The HSR Act requires parties to transactions that meet certain financial thresholds to notify the […]

Hart-Scott-Rodino Act Thresholds Decrease for 2021

Baseline HSR threshold now $92 million The Hart-Scott-Rodino Act requires that parties to certain transactions, including mergers and acquisitions, acquisitions of voting securities, and assets and minority investments, file notifications with the Department of Justice Antitrust Division and the Federal Trade Commission and observe a statutory waiting period if the transaction […]

Cooley’s 2020 Tech M&A Year in Review

A Tale of Two Years While we continue to absorb and understand the worldwide pandemic shockwaves of 2020, trying to encapsulate the vicissitudes of the past year in an annual recap is daunting. Early weeks of the pandemic created an almost inconceivable shift in dealmaking – lawyers and advisors conditioned […]

Cooley’s 2020 Life Sciences M&A Year in Review

General Trends in Life Sciences M&A If 2019 was the year of life sciences mega-deals, 2020 was the year of COVID-19, as the global pandemic permeated every aspect of the dealmaking landscape, with the life sciences sector being no exception. COVID-19 drove unprecedented levels of collaboration among biopharmaceutical companies seeking […]

Delaware Puts the Conduct of Business Covenant on Center Stage in COVID-Related M&A Dispute

In the months following the onset of the COVID-19 pandemic, a slew of parties filed lawsuits in US courts relating to M&A transactions that were signed prior to March 2020 and that buyers were seeking to terminate as a result of the pandemic. In these lawsuits, buyers commonly alleged one […]

Event Recording: Corporate Governance 2020 Balancing ESG, Sustainability and Growth

Eco-friendly, socially conscious and pro-governance investments have been hailed recently with a surge in focus on ESG initiatives, but sustainability and profitability don’t always go hand in hand. The Deal and a roster of senior corporate executives, institutional investors, and corporate advisers explored how companies are shifting their focus to more sustainable […]

Americas Antitrust Review 2021

Covid-19 has made 2020 into a year like no other with ‘stay at home’ orders and working from home the new normal. Nonetheless, the tech and pharma industries continued to attract immense antitrust scrutiny, with daily reports in the media and pressure from politicians to address what some perceive to […]

IRS Releases Guidance on PPP Loans and Employee Retention Tax Credits

The Internal Revenue Service (IRS) has issued several items of new guidance relating to loans under the Paycheck Protection Program (PPP), including two new FAQs addressing the interaction of PPP loans and employee retention tax credits (ERTCs) in M&A transactions, a Revenue Ruling holding that expenses funded by PPP loans […]

Highlights from Cooley’s M&A Dealmakers Roundtable: SPACs!

On September 24, Cooley M&A partner, Garth Osterman, moderated a webinar on the current trend in going public: SPACs! Dave Peinsipp, co-chair of Cooley’s capital markets practice group and Rama Padmanabhan, a Cooley M&A partner participated in the webinar which focused on the current wave of SPAC activity and how […]

DOJ Issues Merger Remedies Manual as Both DOJ and FTC Step Up Efforts to Enforce Consent Decrees

The U.S. Department of Justice (DOJ) Antitrust Division issued a new Merger Remedies Manual on September 3, clarifying the analytical framework it is using to evaluate remedies that may address competitive harms stemming from proposed mergers and acquisitions, as well as from consummated mergers. In announcing the modernized Manual, Assistant […]

SBA Issues Guidance for Borrower Changes of Ownership

Over the last few months, dealmakers have worked creatively in M&A transactions to give borrowers of PPP loans the benefit of their bargain with the government—forgiveness of the loan—rather than treat the PPP loan as outstanding debt requiring discharge at closing (which would typically result in a further reduction in […]

Investment Funds Beware: Proposed HSR Amendments Would Increase Reporting Obligations

The US Federal Trade Commission and Department of Justice announced proposed changes to the rules governing Hart-Scott-Rodino (HSR) filings that, if implemented, would significantly increase the number of transactions that must be reported to the antitrust agencies – primarily by private equity, venture capital and other investment funds – as […]

Pandemic-Related Deal Litigation Highlights Buyer Leverage in Transactions Requiring Debt Financing

In a May blog post we discussed several initial observations regarding the dozens of M&A transactions that were signed prior to March 2020 and that were in jeopardy as a result of COVID-19. Since that post, the Delaware Chancery Court has had the opportunity to consider some preliminary issues relating […]

Drinks with the Deal: Cooley’s Jamie Leigh

Jamie Leigh, partner and co-chair of the M&A practice group, discusses advising tech and life sciences companies, her work for Mirror on its agreement to sell to Lululemon and how she’s staying sane in the pandemic on this installment of Drinks With The Deal, a podcast series hosted by David […]

Do We Have a Quorum?

Although its final episode aired more than a decade ago, there is still debate about the ending of HBO’s critically-acclaimed series, the Sopranos. In fact, as one critic notes, “the only objectively true statement that can be made about that ending is that it’s ambiguous.”[1] This ambiguity was embraced and lauded […]

Renegotiating Deal Terms? Delaware Reminds Fiduciaries of Unremitting Duties

In Captain Phillips, a pirate hijacks a ship and turns to the captain and says (in what is an amazing improvised line) “Look at me, I’m the captain now.”[1]  While the comparisons between piracy and M&A will take us only so far, let us start with an observation: boards and […]

10 Key Considerations for Going Public with a SPAC

It is a reasonable extrapolation – and we are nothing at Cooley if not wildly reasonable – that more operating companies are considering going public through a merger with a SPAC (commonly referred to as a backdoor IPO) since the beginning of time. There have been some great examples of […]

SEC Amendments to Financial Disclosure Requirements Provide a Welcome Reprieve for Carve-Out Transactions

As previously reported in this Cooley PubCo post, on May 21, the SEC adopted final amendments to the financial disclosure requirements for the acquisition and disposition of businesses. One change relating to the use of abbreviated financial statements stands out as a welcome reform for public or pre-public biopharma and […]

Event Recording: Assessing Strategic Dealmaking in a Volatile Covid-19 Market

In partnership with The Deal, we hosted a recent discussion with Uber Head of Corporate Development Jennifer Jarret, Goldman Sachs Head of Technology, Media and Telecom M&A Sam Britton, and Cooley M&A Co-Chair Jamie Leigh on navigating unchartered waters when it comes to assessing the current market for dealmaking. Amid […]

Key Themes From Cooley’s M&A Dealmakers Roundtable: Insights on the Life Sciences M&A Market

On May 27th, Andy Pasternak, Executive Vice President, Chief Strategy Officer at Horizon Therapeutics and Eric Tokat, a partner in the healthcare practice at Centerview Partners joined Cooley M&A co-chair, Barbara Borden for a discussion of the life sciences M&A market, with a focus on business development. As part of […]

SEC Adopts Final Amendments for M&A Financial Statement Disclosure

Yesterday, once again without an open meeting, the SEC voted (with a dissent from Commissioner Allison Lee) to adopt amendments to the requirements for financial statements relating to acquisitions and dispositions of businesses.  According to the press release, the amendments are intended to improve disclosure of financial information, facilitate more […]

Social Distancing From a (Supposed) Life Partner: Early Lessons From Deals Terminated and On the Rocks in the COVID-19 Era

In “La La Land,” Damien Chazelle’s Oscar winning film, the audience thinks it has a formulaic Hollywood love story on its hands: boy and girl meet; boy and girl fall in love; boy and girl break up; and boy and girl get back together. But in a twist on the […]

Whataday for Special Committees: Salladay v. Lev Clarifies Committee Formation Requirements in Non-MFW Scenarios

In late February as the COVID-19 pandemic was accelerating, the Delaware Chancery Court issued an important decision that is likely to impact transactions during the expected recession. In Salladay v. Lev, C.A. No. 2019-0048-SG (Del. Ch. Feb. 27, 2020) (“Salladay”), the court held that a conflicted transaction – not involving […]

Long-Term Focus: Preparing for Activism + Takeovers Amid COVID-19 Risks

Last week we cautioned that market volatility resulting from the COVID-19 pandemic could lead to increasing levels of shareholder activism and unsolicited takeover offers. Although the pandemic has raised countless new risks, companies remain vulnerable to activism attacks that focus on short-term objectives and opportunistic takeover bids stemming from the […]