Articles and updates affecting M&A transactions
Category: Insight
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.