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...more
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....more
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....more
With last Wednesday’s categorization by the World Health Organization of COVID-19 as a pandemic, schools, places of business and other venues throughout the United States quickly closed in-person locations and moved to remote...more
In the wake of record-setting volume and value metrics in 2018, practitioners eyed the 2019 deal market with healthy skepticism. Despite a slight downward tick in momentum and overall deal statistics, 2019 remained a robust,...more
2019 was a banner year for billion-dollar life sciences M&A transactions. A wave of big-ticket transactions by global pharmaceutical companies drove life sciences M&A activity to its fourth-largest year on record in 2019,...more
As the NFL season gets underway, it is interesting to see how certain plays go from fringe status to near-universal. A recent example is the “run-pass option” that, before finding a home in every NFL team’s playbook, was used...more
M&A practitioners have long advised boards of directors that the Delaware courts have never found that the events or circumstances in a particular transaction met the contractual standard of having a material adverse effect...more
In Elizabeth Morrison v. Ray Berry et. al., (dated July 9, 2018), the Delaware Supreme Court reversed the Delaware Chancery Court’s dismissal of deal litigation based on obtaining a cleansing vote under Corwin/Volcano because...more
On April 20, 2018, the Ninth Circuit ruled that shareholder claims for false or misleading tender offer disclosures under Section 14(e) of the Securities Exchange Act of 1934 require a mere showing of negligence, rather than...more
What’s on tap for 2018 M&A? A recap of 2017 trends and the Cooley outlook on this year’s dealmaking: -
Buying Innovation: Retention and Non-Competes. For both old-line companies and tech giants, innovation is the name of...more
2/9/2018
/ Acquisitions ,
Appraisal ,
Appraisal Rights ,
CFIUS ,
Department of Justice (DOJ) ,
Hart-Scott-Rodino Act ,
Innovation ,
Life Sciences ,
Mergers ,
Size of Persons Test ,
Size of Transaction Test
On December 14, 2017, the Delaware Supreme Court reversed and remanded the Court of Chancery's appraisal of the fair value of Dell Inc. The trial court's 2016 ruling, which found that a $25 billion management-led buyout...more
Former stockholders of SARcode Bioscience were recently denied a claim that they were entitled to be paid $425 million in milestone payments under a merger agreement. The decision provides an anecdotal lesson in drafting...more
Post-employment non-compete covenants are generally invalid in California, with certain limited but important exceptions like when a business or associated goodwill is sold and the buyer – as part of the deal – wants to...more
A transaction involving a controlling stockholder on both sides of the deal presents a clear conflict of interest that will result in heightened scrutiny under the “entire fairness” standard of review if later challenged....more
The vast majority of private company acquisitions contain some type of purchase price adjustment to account for any changes in certain financial metrics (including working capital) of the target between a specified reference...more
In life sciences/medical technology transactions, buyers and sellers often use milestone-based and sometimes royalty-based contingent consideration to compensate sellers for assets that are in various stages of development...more
ISS and Glass Lewis are continuing to apply special scrutiny to certain corporate governance provisions of "newly public" companies (generally, companies that have gone public in 2014 or later). In short, the latest policies...more
According to a recent study by SRS of recent private life sciences deals, disputes over earn-outs arose in about one-third (36%) of all milestones that were expected to be hit by September 2016. While most disputes were not...more
On February 14, 2016, the SEC settled an enforcement action against CVR Energy for providing misleading disclosure about the fees payable to CVR’s two financial advisors in connection with CVR’s defense of a hostile tender...more
At what point do “discussions” with a friendly merger party become “negotiations” that are required to be publicly disclosed under the tender offer rules in response to a hostile bid? In a recent settlement of cease and...more
As concerns over the potential exercise of appraisal rights are increasingly being factored into deal price, data points from recent Delaware appraisal decisions may help inform a party of its appraisal risks and, if an...more
On November 18, 2016, the Staff of the Division of Corporation Finance issued two new C&DIs that address banker fee disclosures for tender offers on Schedule 14D-9. The new C&DIs clarify that disclosure is required of “all”...more
Last month, the FTC and DOJ issued a set of antitrust guidelines addressing certain employment and compensation practices that are most likely to occur in the high-tech and healthcare industries where highly-skilled employees...more
Recently, in the midst of an M&A transaction involving Verizon and Yahoo!, news broke of a Yahoo! cybersecurity breach that had occurred approximately two years earlier. This event raised a lot of speculation around what...more