Federal Antitrust Authorities Step Up Merger Enforcement – Recent Victories Buoy Enforcers

Obama Administration antitrust enforcers have faced criticism over the last year for not being sufficiently aggressive, allegedly leading to concentrated industries to the detriment of consumers. The Department of Justice and Federal Trade Commission appear to have responded by stepping up enforcement.The agencies’ efforts are bearing fruit. In just the […]

Federal Court Gives Teeth to Operational Efforts Covenant in Sanofi/Genzyme Earn-Out Dispute

We keep a close eye on developing cases regarding earn-outs and contingent payment rights in light of the prevalent use of these arrangements in life sciences deals and their increasing use in non-life sciences deals. On September 8, 2016, a federal court in New York declined to dismiss a claim […]

Court Gives Energy Transfer the Right to Walk Based on its Counsel’s Inability to Deliver the Required Tax Opinion

In a rare decision involving unusual facts, the Delaware Court of Chancery held that a buyer (Energy Transfer Equity, L.P.) had the right to terminate a signed merger agreement with its target (The Williams Companies, Inc.) that Energy Transfer no longer wished to close due to the unexpected decline in […]

Federal Appeals Court Rejects “Disclosure-Only” Settlement

Yesterday, in In re: Walgreen Co., the 7th Circuit Court of Appeals rejected a “disclosure-only settlement” involving Walgreen Co.’s 2014 purchase of Alliance Boots and the combined company’s subsequent reorganization. In a strongly-worded but divided opinion, the Court reversed the district court’s ruling, which approved (albeit reluctantly) the disclosure settlement […]

Webinar Recording: Compensation and Benefits Issues in M&A Transactions

Employee benefits and executive compensation issues rarely drive an M&A transaction. But these issues can result in unexpected delays and can make or break a successful post-closing integration of the companies. This webinar focuses on key employee benefits and executive compensation issues that should be considered by public companies in M&A […]

Shareholder Activism and HSR Collide: DOJ Obtains Record Fine from ValueAct

The Department of Justice Antitrust Division announced on July 12 that ValueAct Capital agreed to pay a record $11 million civil penalty to settle claims that ValueAct purchased over $2.5 billion in Halliburton and Baker Hughes stock with the intention of influencing their proposed $35 billion merger without complying with […]

Failure to Comply with the HSR Act: The Price is Going Up

Failure to comply with the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”) is about to get a lot more expensive. Effective August 1, 2016, the maximum civil penalty for noncompliance with the premerger notification requirements of the HSR Act will increase from $16,000 to $40,000 per day – a […]

Dell Decision and Recent Amendments to Delaware’s Appraisal Statute

Section 262 of the DGCL provides a statutory remedy for stockholders who do not vote in favor of certain M&A transactions (generally cash mergers) to petition the corporation to buy their stock at a price equivalent to the “fair value” of the stock, subject to compliance with certain procedures. A […]

From Aeroflex to Trulia: A Seismic Shift

On January 22, 2016, Chancellor Bouchard rejected a proposed disclosure-only settlement in In re Trulia, Inc. Stockholder Litigation, 129 A.3d 884 (Del. Ch. 2016), marking the culmination of what has been a seismic shift over the past several months in the Delaware Chancery Court’s treatment of disclosure-only settlements in lawsuits challenging […]

CDX Holdings Decision Spotlights the Treatment of Stock Options in a Merger

The treatment of outstanding stock options and other equity compensation awards is often a key element of a sale transaction.  Because stock options can represent considerable value, how they are treated can have a significant impact on the company’s management team and employees.  For the parties negotiating the transaction, it can […]

DE Court Comments on Block-Holder Rights in OptimisCorp

The Delaware Supreme Court issued an Order this week in OptimisCorp v. Waite that could have implications for VC-backed or other companies with so-called “block-holder” directors – or directors who are appointed by a stockholder with a large block of shares – in the context of corporate turmoil where management, […]

Private Market Trends Snapshot 2016

M&A deal terms will almost always vary based on the specific context of the transaction, including the deal price, structure and each party’s negotiating leverage. Although no amount of data can replace context-specific analysis, data-driven decision-making continues to make its way into negotiations and can, under the right circumstances, provide […]

Federal Trade Commission v. Steris Corporation: High Barriers to Proving Likely Anticompetitive Effects from Loss of Future Competition

It has been more than 50 years since the Supreme Court first deliberated over the potential competition doctrine in United States v. Penn-Olin Chemical Co., where the Court recognized that Section 7 of the Clayton Act may be violated based on that theory of competitive harm.

Options to Acquire: How these Creative Acquisition Strategies Differ from a Traditional Purchase

Creative acquisition strategies are offering both buyers and targets additional opportunities to grow their businesses through M&A. One strategy that we are seeing parties use is the “option to acquire” structure, which addresses both the needs of a target company to develop a product or business on the one hand […]

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Newly-Released Data Reveal 50% Increase in CFIUS Filings Over Prior Year

Each year, the US government releases a public version of a classified report to Congress summarizing the government’s confidential review of certain foreign investments in the United States. The entity responsible for the report is an obscure committee of federal agencies and offices with national security responsibilities. Collectively, the members of the […]

IFLR Asia M&A Forum 2016

Cooley is a sponsor of the IFLR Asia M&A Forum. This comprehensive two-day forum will provide attendees with key developments, best practices and tips for navigating unique deal-making environments in the region and bring together leading industry experts and counsel to debate top trends and the future of M&A in Asia. […]

Top 10 M&A Developments and Trends for 2016

Here is a look back at the top M&A developments that affected deal-making last year and a look forward to our expectations for 2016.

Revised 2016 Hart-Scott-Rodino Antitrust Thresholds

Filing thresholds under the Hart-Scott-Rodino (HSR) Act will increase by about 2.5%, effective February 25, 2016, raising the level that a transaction’s value must exceed to trigger a filing from $76.3 million to $78.2 million and making adjustments to the Act’s other key dollar thresholds.

What US GCs Should Know About Drafting International Arbitration Clauses

Thinking about what may go wrong with a contract, can be as important as the planning to make it go right.Key issues such as where an arbitration should take place, the level of confidentiality required and what levels of evidential discovery are you likely to require, can all put you in a much better position to deal with a dispute if one should arise in the future.

Agreements to Agree can be Broken: Negotiating Letters of Intent

On December 23, 2015, the Delaware Supreme Court held that SIGA Technologies, Inc. cannot avoid paying $113 million in expectation damages (plus interest) to PharmAthene, Inc. for breaching an express agreement to negotiate a strategic license in good faith in accordance with terms set forth in a term sheet. The […]

Top 10 Antitrust Developments and Trends to Watch in 2016

Attention in the US during 2016 will be on the presidential campaign, and the election in November will bring a change in the “antitrust guard” at the top of the DOJ and FTC – even if a Democrat wins – that will drive the direction of antitrust enforcement in years […]

UK Supreme Court Confirms Merger Control Threshold for Business Acquisitions

Shortly before Christmas, the UK Supreme Court issued a judgment that provides important guidance on the legal test for assessing the circumstances in which UK merger control rules apply to the acquisition of business assets. 


No Harm, but Foul: Process Considerations for “Interested” Transactions

After over seven years of litigation, the Delaware Supreme Court on December 11, 2015 upheld the Court of Chancery’s important decision in Nine Systems, which held that a 2002 recapitalization of a streaming media start-up unfairly diluted the minority stockholders when VC-backed directors failed to include the stockholders in an emergency round of financing […]

Mind the Gap (or Lack Thereof)

Two recent cases in the M&A space regarding earn-outs make one thing clear: express language in the definitive agreement prevails over any implied covenant of good faith and fair dealing. Fortis Advisors LLC v. Dialog Semiconductor PLC  (Del. Ch. January 30, 2015) (granting a buyer’s motion to dismiss a claim […]

Court Upholds Banker Liability for Inducing Faulty Process in Rural/Metro Sale

On November 30, 2015, in RBC Capital Markets, LLC v. Jervis (C.A. No. 6350-VCL) the Delaware Supreme Court upheld the principal rulings finding financial advisor RBC Capital Markets, LLC liable for approximately $76 million in damages for aiding and abetting breaches of fiduciary duties by former directors of Rural/Metro Corporation in connection […]


Proposing a Fix? Ready to Litigate the Fix? Recent Cases Should Guide Strategy

Companies considering transactions that raise serious antitrust issues should have a strategy for getting through the Hart-Scott-Rodino review process before finalizing the deal.

High-tech Mergers: Flying “High” on the Antitrust Enforcement Radar

The pace of strategic deal-making has electrified corporate America over the past year and has kept antitrust enforcers on their toes in analysing the potential competitive effects of these deals.

Rep and Warranty Insurance: Trends and Key Considerations

Over the last several years, transactional insurance, or representation and warranties insurance (“R&W Insurance”), has become a more prominent part of the M&A landscape.

Abandon Ship! Don’t Let Antitrust Risk Sink your Deal

Recent antitrust challenges to mergers, including the FTC’s recent federal court victory, have forced parties to abandon at least three deals in the past few months.

Utilizing Drag-Along Rights in Private Company Merger Agreements

In our January 2015 newsletter we discussed the recent decision of the Delaware Court of Chancery in the Cigna Health & Life Company v. Audax Health Solutions, Inc. case, which invalidated two purchaser-imposed requirements that are frequently found in private company mergers, specifically the conditioning of payment of merger consideration on […]


Delaware Chancery Court Weighs in on Fair Value in an Appraisal action

In the last few years, there have been numerous developments in the law and practice surrounding appraisal rights under Delaware law.