Mergers & Acquisitions General Business Securities

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No Auction Required – Delaware Supreme Court Affirms Board Flexibility under Revlon

Ruling that an active solicitation process is not necessarily required for a target board of directors to satisfy its fiduciary duties in a change of control transaction, the Delaware Supreme Court overturned a preliminary...more

Corporate & Tax E-Note - December 2014

In this issue: - SEC Crowdfunding Rules Delayed Until October 2015 - Mega M&A Experiencing One of Biggest Booms in History - Some Small Business Owners Say Tax Break Extension Not Enough - 2014...more

FCPA Compliance and Ethics Report-Episode 115-Tom Fox and Matt Kelly on COSO, Bruker Corp, Dallas Airmotive and Alstom [Video]

In this episode Compliance Week editor Matt Kelly and I discuss the COSO 2013 Framework implementation and its changes from the prior Framework. We also discuss the recent Bruker Corp & Dallas Airmotive FCPA enforcement...more

Hong Kong Regulatory Update - December 2014

This Hong Kong regulatory update is intended to provide a brief overview of the principal Hong Kong regulatory developments in the preceding three months relevant to companies listed or proposed to be listed on The Stock...more

Court of Chancery Speaks to Exclusivity Agreements in Public Company Acquisitions

You reach the point in the sale of almost every public company where the buyer wants an exclusivity agreement. Lawyers representing the target wring their hands about the effect of an exclusivity agreement and the effect of...more

Top 10 Topics for Directors in 2015

In this issue: - Strategic Planning Challenges - Cybersecurity - Assess the Impact of Advances in Technology and Big Data - Shareholder Activism - The Return of M&A - Risk...more

In re Novell, Inc. S’holder Litig., C.A. No. 6032 (Del. Ch. Nov. 25, 2014) (Noble, V.C.)

In this memorandum opinion, the Court of Chancery granted summary judgment in favor of defendants on claims alleging that directors acted in bad faith by favoring a bidder in a sale process for reasons other than the pursuit...more

Court Clarifies Law on Enforceability of Obligations of Non-Signatories in Private Mergers

In a fact-specific case with potential ramifications for future mergers under Delaware law, Cigna Health and Life Insurance Co., a preferred stockholder of Audax Health Solutions Inc., whose shares were extinguished by a...more

The FCPA Compliance and Ethics Report-Episode 114-Doing Compliance, The Book [Video]

In this episode, I discuss my recently released book, Doing Compliance: Design, Create and Implement an Effective Anti-Corruption Compliance Program...more

Cigna Health and Life Ins. Co. v. Audax Health Sol’ns, Inc., C.A. No. 9405-VCP (Del. Ch. Nov. 26, 2014)

In this action seeking a declaratory judgment regarding the validity of certain provisions in a merger agreement and related contracts, the Court of Chancery granted in part plaintiff’s motion for judgment on the pleadings,...more

Expedited Proceedings Denied Where Harm Is Only Speculative

The Delaware Chancery Court recently denied a shareholder’s motion to expedite proceedings to enjoin a company buyout, finding that the shareholder failed to show that any threatened harm from the buyout was imminent,...more

Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, C.A. No. 7906 (Del. Ch. Nov. 26, 2014) (Glasscock, V.C.)

In this memorandum opinion, the Court of Chancery largely denied but granted in part defendants’ motion to dismiss claims relating to a 2011 merger in which plaintiffs Great Hill Equity Partners IV, LP and related entities...more

Bank, CFO Settle Accounting Charges with SEC

The SEC filed settled accounting actions with a financial institution and its CFO, keyed to a restatement. The accounting issue focused on deferred tax assets and the failure to have the related reserve. In the Matter of...more

Information Letter: Management Liability: Potential Risk Zones (Russia)

The recent court practice shows that lawsuits seeking compensation of damages caused to company by its management are being filed with increasing frequency. It is largely due to courts' departure from formalistic approach to...more

How Falsifying Compliance With A Lease Became Securities Fraud

The CEO and CFO of a successful senior living firm sought to expand the business by acquiring the operations of another firm and leasing its facilities. Despite warnings that the lease terms were far to onerous, the deal was...more

Recent Developments in Successor Liability under the FCPA and UK Bribery Act

I. New Guidance from the DOJ - On November 7, 2014, the Department of Justice (“DOJ”) issued a Foreign Corrupt Practices Act (“FCPA”) Opinion Procedure Release 14-02 (the “DOJ Opinion”) that provides real-world...more

Delaware Court Provides Guidance on Acceptable Deal Protection Mechanisms and Scope of Third Party Aiding and Abetting Liability...

On November 25, 2014, the Delaware Court of Chancery issued a decision in In Re Comverge, Inc. Shareholders Litigation, which: (1) dismissed claims that the Comverge board of directors conducted a flawed sales process and...more

Delaware Court Invalidates Release and Indemnification Obligations Against a Selling Stockholder in a Merger Transaction

The Delaware Chancery Court recently invalidated a buyer’s attempt to obtain a release and indemnification obligations from selling stockholders of a Delaware corporation that was acquired in a merger. The ruling will require...more

FCPA Compliance and Ethics Report-Episode 111-Virna Di Palma on the TRACE Matrix [Video]

In this episode, I visit with Virna Di Palma on the newly released TRACE Matrix. This is an extremely useful tool to help companies evaluate a wide variety of corruption and bribery risks on a country by country basis. ...more

Minority Shareholders' Alleged Control of Management and Operations Does Not Establish Domination of the Board

Emphasizing the demanding pleading standards a shareholder must meet to show that a minority shareholder controls a board of directors, on November 25, Vice Chancellor Glasscock dismissed claims for breach of fiduciary duties...more

New York Appellate Court Affirms Business Judgment Rule for Going-Private Transaction

New York companies seeking to go private with a controlling shareholder may now be less vulnerable to shareholder litigation. On November 20, 2014, the New York Appellate Division, First Department, affirmed a New...more

SEC Settles Insider Trading Case With COO

The SEC and the DOJ have waged an aggressive battle against insider trading for years, resulting in a string of courtroom victories, guilty pleas and settlements as well as significant sanctions which are supposed to deter...more

FCPA Compliance and Ethics Report-Episode 110-interview with Jonathan Armstrong [Video]

In this episode I visit with Jonathan Armstrong a partner in Cordery in London. He visits with me about his new firm, the equity investment of Lexis/Nexis in his firm and some of the trends he sees in cross-border...more

SEC Will No Longer Require an Acquired Entity to Use “Pushdown” Accounting upon a Change in Control

On November 18, the SEC’s Division of Corporation Finance and the Office of the Chief Accountant (the Staff) rescinded Topic 5.J. of the Staff Accounting Bulletin Series. Topic 5.J. required an SEC registrant that became...more

HSBC Unit Settles Unregistered Broker-Advisor Charges With SEC

A Swiss unit of U.K. financial services giant HSBC Holdings plc. settled charges that the firm repeatedly sold securities and rendered advisory services in the U.S. without registering with the Commission despite legal advice...more

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