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Business Crimes Bulletin
The FTC and DOJ’s New Guidelines Promise Sharper Scrutiny of Mergers
Karen Hoffman Lent and Kenneth Schwartz
From loosened structural presumptions to unconventional theories of harm such as “ecosystem competition” to consideration of a merger’s effects on outside markets, we review some of the most noteworthy changes in the new Guidelines.
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Business Crimes Bulletin
Leveraging Data and Deal Terms to Meet the Demands of the DOJ’s New M&A Safe Harbor
Patrick T. Campbell, Jonathan B. New, James A. Sherer, and Lauren E. Sternbach
This article describes the DOJ’s new M&A safe harbor policy and also provides practical insights on how companies engaged in M&A can meet the DOJ’s expectations.
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Business Crimes Bulletin
FTC and DOJ Proposed Merger Guidelines Eye Effect On Competition
Maydeen Merino
The Federal Trade Commission (FTC) and the Department of Justice (DOJ) have proposed merger guidelines that reflect the Biden administration’s aggressive enforcement approach to corporate acquisitions that considers not only their effect on competition but on the labor market, antitrust attorneys said.
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Commercial Leasing Law & Strategy
The Real Estate Leasing Lawyer’s Role In an M&A Deal With a Reps & Warranties Policy
Aaron L. Pawlitz
This article provides an overview of the most commonly-accepted purposes of an RWI policy and an overview of the RWI policy underwriting process.
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Commercial Leasing Law & Strategy
High M&A Activity In CRE Expected to Continue, Despite Sky-High Pricing
Lynn Pollack
Merger and acquisition activity across the CRE spectrum is likely to continue to be high, though deals will likely be concentrated across the industrial and residential sectors, according to Deloitte.
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The Bankruptcy Strategist
Increased Bankruptcy M&A Activity Should Provide Attractive Opportunities for Lenders
Joel H. Levitin and Richard A. Stieglitz Jr.
It seems clear that bankruptcy filings inevitably will increase in the near future, because of rising interest rates, pandemic-related micro-economic forces, global strife, and other macro-economic factors and their continuing strain on the global economy and individual businesses. Consequently, strategic buyers and private equity sponsors should find expanding opportunities to purchase distressed businesses out of bankruptcy.
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Commercial Leasing Law & Strategy
Opportunities and Best Practices for Lenders In Financing Distressed Business Acquisitions
Joel H. Levitin and Richard A. Stieglitz Jr.
As distressed M&A activity inevitably heats up, strategic buyers and equity sponsors that have sat on the sideline for an extended period of time will likely have expanding interest in purchasing viable, but over-leveraged, businesses that are being sold out of bankruptcy.
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The Bankruptcy Strategist
The Coming Thaw for Distressed M&A: Opportunities and Best Practices for Lenders In Financing Distressed Business Acquisitions
Joel H. Levitin and Richard A. Stieglitz Jr.
This article focuses on the financing opportunities buying the business of a Chapter 11 debtor will create for lenders, highlights the benefits of financing bankruptcy acquisitions, and identifies some potential challenges and best practices to ensure that lenders minimize any risks and receive maximal protection for themselves.
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Entertainment Law & Finance
Delaware Court Dismisses Fox Stockholder’s Suit Over Disney Deal
Ellen Bardash
In a decision that narrowed what actions can be brought by Delaware companies’ stockholders in the context of a merger, the Delaware Court of Chancery dismissed claims brought against former 21st Century Fox executives, including three members of the Murdoch family.
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Accounting And Financial Planning For Law Firms
Law Firm Mergers and Predictions for the Year 2020
Marcus Dyer
2019 went down as another record year for law firm mergers. But what do the numbers teach us? Did the tendency to merge apply to law firms across the board? Is the merger mania likely to continue in 2020? What was the impetus for record number of mergers? This article breaks down the available data to answer these questions and attempts to give us a glimpse into the future.
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Business Crimes Bulletin
They’re Baaaaack. Disclosure-Based 14(A) Claims Making a Ghostly Return
Johanna Fricano
Following the Delaware Chancery Court’s ruling in In re Trulia, Inc. that effectively closed the door to 14(a) disclosure-based settlements in Delaware state court, federal courts saw an influx of 14(a) “merger objection” litigation. More often than not, these suits are quickly dismissed following the company’s issuance of a supplemental proxy with additional disclosures and the parties negotiate a mootness fee. The transaction closes and all parties move on — or so we thought. An emerging trend suggests that exposure to 14(a) claims may coming back from the near dead.
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Accounting And Financial Planning For Law Firms
Law Firm Mergers and the Economic Outlook for 2019
Marcus Dyer
As law firms endeavor to survive in an increasingly competitive world, one strategy picking up steam is the law firm merger. In this article, we recap law firm merger activity in 2018 and consider the economic outlook for law firm mergers for 2019.
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Cybersecurity Law & Strategy
The Brave New World of Cybersecurity Due Diligence in Mergers and Acquisitions: Pitfalls and Opportunities
Thomas McThenia and Richard Markow
Like poorly-behaved school children, new technologies and intellectual property (IP) are increasingly disrupting the M&A establishment. Cybersecurity has become the latest disruptive newcomer to the M&A party.
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Business Crimes Bulletin
Beyond the FCPA: M&A Due Diligence Under the Expanded DOJ Corporate Enforcement Policy
Jonathan B. New and Elias D. Trahanas
Over the past few years, the U.S. Department of Justice (DOJ) has taken notable steps to advance the axiom that the business community and law enforcement are “partners, not adversaries.” DOJ has now taken its guidance one step further, announcing that the FCPA Corporate Enforcement Policy would apply to all potential wrongdoing discovered by an acquirer in the course of a merger or acquisition, not just to FCPA violations.
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Accounting And Financial Planning For Law Firms
Do Mergers Increase Profitability?
Hugh A. Simons and Nicholas Bruch
The Numbers Say Yes, But Not for the Reasons Many May Think
Conventional wisdom has it that mergers enhance profitability through increased revenues and reduced costs. However, the numbers contradict this view: post-merger revenues are lower relative to competitor firms than are the sum of the predecessor firms’ revenues, and costs per lawyer increase markedly.
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The Corporate Counselor
Key Decisions from Delaware Courts
Francis G.X. Pileggi
Mergers and Acquisitions
A few recent decisions from the Delaware Court of Chancery provide useful information to corporate executives who are involved in the sale or purchase of businesses, or who are involved in joint ventures in which the sales price or the post-closing profit distribution is based on certain milestones being reached.
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The Corporate Counselor
DE Supreme Court Clarifies Role of Deal Price In Appraisal Fair Value Determination
P. Clarkson Collins Jr.
Corporate practitioners have been closely following developments in Delaware's shareholder appraisal litigation. Much of the interest concerns the court's "fair value" determination and the risk that an acquiring company will have to pay appraisal petitioners more than the merger deal price. In a much-anticipated decision, the Delaware Supreme Court provides valuable guidance about the relative importance of the deal price in the court's adjudication of the "fair value" of a petitioner's shares.
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Medical Malpractice Law & Strategy
Supreme Court Limits Forum Shopping with Plavix Lawsuit Decision
Janice G. Inman
On June 19, the U.S. Supreme Court upended years of jurisprudence to hand corporations a gift: a far more stringent definition of specific jurisdiction that will force plaintiffs to bring suit in multiple state courts rather than join their claims to those in far-flung jurisdictions.
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Product Liability Law & Strategy
Avoiding the Hazards of Acquisition: Due Diligence in the Merger or Acquisition of a Product Manufacturer
Ronald J. Levine and Clifford Tatum
As corporations continue to reshape at a rapid rate, due diligence groundwork concerning product liability issues can be critically important. This article addresses how deals can be structured, and the areas that need to be explored, when evaluating a potential deal from the perspective of product liability.
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Business Crimes Bulletin
Criminal Allegations Threaten Merger
Abbott Laboratories’ $5.8 billion proposed purchase of Alere, a Massachusetts medical testing company, is in trouble now that multiple criminal allegations have been leveled against Alere.
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