The Delaware Court of Chancery has ruled that a party to a merger agreement validly terminated the agreement after the out-date passed when the other party failed to give notice that it extended the agreement even though the...more
The recent SEC enforcement action against Volkswagen AG and its former CEO illustrates the securities law consequences of operational wrongdoing. As described by the SEC, from at least 2007 through 2015, Volkswagen sold...more
The SEC recently proposed allowing all issuers (not just emerging growth companies) to test-the-waters with qualified institutional investors (QIBs) and institutional accredited investors (IAIs) before and after filing a...more
The recent settled SEC enforcement action, and related criminal proceeding resolved with a deferred prosecution agreement, against Lumber Liquidators is a reminder of the need for accurate and complete disclosure even when...more
Post-signing “go-shop” processes first appeared in 2004 as an alternative to the traditional sale process for public companies. As one way to satisfy its “Revlon duty” to get the best price in the sale of the company, the...more
On February 19, 2019, the Securities and Exchange Commission published a rule proposal entitled “Solicitations of Interest Prior to a Registered Public Offering” that would extend the “test-the-waters” provisions of Section...more
On February 15, 2019, Nasdaq filed an immediately effective rule proposal to permit “direct listings” without an IPO and, in doing so, joins the NYSE, whose proposal to permit direct listings was approved by the SEC in...more
The Securities and Exchange Commission has again had to confront how to react to a mandatory arbitration provision that would have the effect of denying investors the ability to pursue federal securities law claims as a class...more
On February 6, 2019, the SEC staff issued two new identical C&DIs that apply to Item 401 of Regulation S-K, Question 116.11, and Item 407 of Regulation S-K, Question 133.13. The new interpretation provides guidance on...more
On January 29, 2019, the SEC announced settled enforcement actions against four companies for failures to maintain internal control over financial reporting (“ICFR”) as required by Section 13(b)(2)(B) of the Securities...more
On January 27, 2019, the Division of Corporation Finance posted an announcement regarding recommencement of operations. The Staff is returning to normal operations and anticipates addressing filings, submissions and other...more
On January 24, 2019, Nasdaq issued FAQs addressing, among other things, new listings during the government shutdown. Nasdaq noted that under the SEC’s December 2018 Operations Plan Under A Lapse in Appropriations and...more
Two year-end decisions by the Delaware Court of Chancery provide practical guidance for mergers and other transactions, one on the meaning of “commercially reasonable efforts” and other commonly used standards of efforts and...more
On December 18, 2018, the Securities and Exchange Commission (the “SEC”) adopted final rules requiring companies to disclose in proxy or information statements for the election of directors any practices or policies regarding...more
The Delaware Court of Chancery today ruled that a provision in the certificate of incorporation requiring any claim under the Securities Act of 1933 to be filed in federal court is invalid. ...more
On October 17, 2018, the Division of Corporation Finance (the “Division”) of the Securities and Exchange Commission (the “SEC”) issued a set of interpretations relating to the rules that provide an exemption from the...more
The Delaware courts have long prided themselves on the contractarian character of their approach to interpreting and enforcing agreements. In the M&A context, this has meant holding parties to the transaction they agreed to...more
We recently wrote about short sellers being the scourge of public companies and the availability of a response from the SEC). The SEC has now made clear in an enforcement action against Elon Musk, the CEO of Tesla Inc., a...more
Few things annoy a company more than when a short-seller starts bad-mouthing the company to drive down its share price and the company can do little about it. Now, as a result of a recent SEC enforcement action, there may be...more
From time to time there is an SEC enforcement action that has a broader lesson for public companies. The recent settled enforcement action against SeaWorld Entertainment, Inc. is one of those....more
On September 13, 2018, following the lead of other federal agencies, SEC Chairman Jay Clayton issued a reminder that SEC staff positions are nonbinding and create no enforceable legal rights or obligations of the Commission...more
We recently reported the SEC’s adoption of amendments to Rule 15c2-12 to add two new events to those now required to be reported. Those two events are: -
Incurrence of a financial obligation of the issuer or obligated...more
Delaware has adopted amendments to its Limited Liability Company Act that permit so-called “divisions” to be effected by a Delaware limited liability company (“LLC”). These amendments, which became effective on August 1,...more
On August 20, 2018, the Securities and Exchange Commission (the “SEC”) adopted amendments (the “Amendments”) to the continuing disclosure provisions of Rule 15c2-12 (the “Rule”), with the goal of enhancing disclosure of the...more
On August 17, 2018, the U.S. Securities and Exchange Commission (the “SEC”) adopted amendments to certain disclosure requirements that have become redundant, overlapping, outdated or superseded in light of other SEC...more