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.
Do Merger Efficiencies Matter in Antitrust Review? Ninth Circuit Says “Yes”
The Ninth Circuit U.S. Court of Appeals last month sided with the Federal Trade Commission and required divestiture to unwind a consummated acquisition between two health care providers. In doing so, however, the court broke with long-standing precedent and accepted, in principle, a role for efficiencies in analyzing mergers. The […]
Books and Records – An Assist to Forum Selection
A frequent precursor to public company deal litigation is the books and records request under Section 220 of the Delaware General Corporation Law. Typically employed by plaintiffs as the first step of “information gathering” for derivative litigation, a company’s right to limit the potential geographic use of requested information has been validated by the Delaware courts.