Inside M&A - November/December 2010

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In This Issue:

Caught in the Act … of Acquiring Some Shares: The Application of Merger Control Rules on the Acquisition of Non-Controlling Minority Shareholdings in Germany and the UK; Proposed DOL Regulation Would Impose Fiduciary Status On Valuation Firms: Regulation Comment Period Closes January 20, 2011; and, ION Media: Developments in Intercreditor Disputes.

Caught in the Act … of Acquiring Some Shares: The Application of Merger Control Rules on the Acquisition of Non-Controlling Minority Shareholdings in Germany and the UK by Martina Maier and Philipp Werner

Enterprises and corporate lawyers certainly know by now that they may have to go through merger control proceedings if they want to acquire “control” of another enterprise. It is also generally known that acquisitions of less-than-controlling interests may be reportable in the United States under the Hart-Scott-Rodino Act, where the notification thresholds are predicated on the dollar value of the acquisition (presently $63.4 million), as opposed to a “change-in-control” test. But even experienced counsel are surprised that some other heavy-hitters amongst the world’s antitrust authorities may look into the acquisition even of non-controlling minority shareholdings. What is more, non-U.S. regulators such as the German Federal Cartel Office (FCO) and the UK Office of Fair Trading (OFT) may also require the divestment of such shareholdings under their respective merger control rules....

Proposed DOL Regulation Would Impose Fiduciary Status On Valuation Firms: Regulation Comment Period Closes January 20, 2011 by Jonathan J. Boyles, Jeffrey Rothschild and Ashley J. McCarthy

The U.S. Department of Labor (DOL) recently issued a proposed regulation that would substantially expand the definition of ‘fiduciary’ under the Employee Retirement Income Security Act (ERISA). Under the new definition, valuation firms would, for the first time since ERISA’s passage, be subject to its stringent fiduciary duties and their attendant liability. Many predict that an unintended consequence of this expanded definition could be a concerted exit from the valuation market by firms that have traditionally performed valuation services. Valuation firms will want to take action now to submit their comments on the proposed regulation before the comment period closes on January 20, 2011.....

ION Media: Developments in Intercreditor Disputes by Dick M. Okada and Bryan V. Swatt

With the flood of debt-heavy capital structures created over the past decade, bankruptcy courts have been left to clean up the remnants of many failed transactions. Given the volume of debt provided, courts are likely to continue to be called upon to determine the relative rights of creditors that result from multi-tiered debt structures. Consequently, it is important to examine how recent decisions have handled intercreditor disputes as today’s markets continue to loosen and financial sponsors once again have the opportunity to use various forms of subordinated debt to finance acquisitions and refinance existing credit facilities....

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