As global M&A activity reached record highs this year, so too did the market's appetite for carve-out transactions. A carve-out transaction is the sale of a subsidiary, division, or other part of a larger business enterprise....more
On November 15, 2021, President Biden signed into law a long-awaited $1.2 trillion bipartisan infrastructure bill titled the Infrastructure Investment and Jobs Act ("IIJA"). The IIJA is touted as a first step in fixing the...more
2/2/2022
/ Biden Administration ,
Federal Funding ,
Infrastructure ,
Infrastructure Financing ,
Infrastructure Investment and Jobs Act (IIJA) ,
Investment ,
Public Private Partnerships (P3s) ,
Public Projects ,
Public Transit ,
Transportation Corridor ,
Zero-Emission Vehicles
The focus on ESG across the business spectrum ramped up over the course of 2021, surpassing several milestones along the way and resulting in a surge of regulatory changes and new initiatives by the end of the year....more
2/2/2022
/ Business Strategies ,
Capital Investments ,
Climate Change ,
Corporate Governance ,
Corporate Social Responsibility ,
Disclosure Requirements ,
Environmental Social & Governance (ESG) ,
EU ,
Financial Institutions ,
Green Bonds ,
Initial Public Offering (IPO) ,
Sustainability
TRANSACTIONAL PERSPECTIVES ON 2022 -
What are the trends, risks, and opportunities in 2022?
As dealmakers recover from a record-breaking 2021, we expect another busy year in 2022. While risks in the financing market,...more
1/31/2022
/ Acquisition Agreements ,
Capital Markets ,
Climate Change ,
Coronavirus/COVID-19 ,
Corporate Governance ,
Corporate Sales Transactions ,
Environmental Social & Governance (ESG) ,
Financing ,
Foreign Investment ,
Infectious Diseases ,
Initial Public Offering (IPO) ,
Merger Agreements ,
Private Equity ,
Special Purpose Acquisition Companies (SPACs) ,
Venture Capital
ESG/DEI will be the leading theme in the upcoming proxy season by a wide margin because of a confluence of events affecting society generally: acceptance in popular and financial media of climate change as an overriding...more
ESG/DEI Frenzy in 2022 -
Investor losses resulting from stock market crashes have driven most major turns in corporate governance. In this century, director independence and audit/accounting assurance came into focus after...more
The Delaware Court of Chancery's application of the "entire fairness" standard in In re MultiPlan Stockholders Litigation is an important development for SPACs incorporated in Delaware, and it could result in more...more
The Board Diversity Proposal generally requires each Nasdaq-listed company "to have, or explain why it does not have, at least two members of its board of directors who are Diverse," defined as at least one director who...more
8/16/2021
/ Board of Directors ,
Corporate Governance ,
Disclosure Requirements ,
Diversity and Inclusion Standards (D&I) ,
LGBTQ ,
Listing Standards ,
Minorities ,
Nasdaq ,
Publicly-Traded Companies ,
Regulatory Agenda ,
Rulemaking Process ,
Securities and Exchange Commission (SEC) ,
Woman Board Members
The Situation: A number of shareholder derivative lawsuits in federal court have been filed seeking to hold directors and officers of major companies accountable for alleged failures to uphold their companies' stated...more
7/20/2021
/ Board of Directors ,
Corporate Governance ,
Derivative Suit ,
Disclosure Requirements ,
Diversity and Inclusion Standards (D&I) ,
Environmental Social & Governance (ESG) ,
Forum Selection ,
Motion to Dismiss ,
Securities Regulation ,
Securities Violations ,
Shareholder Litigation ,
Shareholders
The Background: The Delaware Chancery Court held that a board of directors breached its fiduciary duties in adopting a shareholder rights plan, or "poison pill," with an unprecedented combination of "extreme" features,...more
2020 took uncertainty to new heights. Deals came to an abrupt halt in Q2 as corporates focused on preserving cash and stabilizing their businesses in the wake of the COVID-19 pandemic. Private equity firms looked for...more
The Situation: Use by outside directors of non-company email accounts or other non-secure platforms to conduct board business risks waiver of the board's privilege. Even if the privilege is maintained, use of such an account...more
The Situation: In November 2019, the U.S. Securities and Exchange Commission ("SEC") proposed certain amendments to Rule 14a-8 of the Securities Exchange Act of 1934, the rule that permits a qualifying shareholder to include...more
The Situation: On July 22, 2020, the U.S. Securities and Exchange Commission ("SEC") adopted final rule amendments to regulate proxy voting advice as part of its emphasis on modernizing the proxy process. The final SEC...more
8/19/2020
/ Anti-Fraud Provisions ,
Conflicts of Interest ,
Corporate Governance ,
Disclosure Requirements ,
Final Rules ,
Policies and Procedures ,
Proposed Amendments ,
Proxy Advisors ,
Proxy Advisory Firms ,
Proxy Voting Guidelines ,
Safe Harbors ,
Securities and Exchange Commission (SEC) ,
Solicitation
The Situation: In response in part to the COVID-19 pandemic, the Delaware legislature amended the Delaware General Corporation Law to address emergency bylaws and related powers exercised by a corporation's board of...more
8/17/2020
/ Board of Directors ,
Bylaws ,
Coronavirus/COVID-19 ,
Corporate Counsel ,
Corporate Governance ,
Delaware General Corporation Law ,
Directors ,
Emergency Management Plans ,
Emergency Powers ,
Indemnification ,
New Amendments ,
Securities and Exchange Commission (SEC) ,
Shareholder Meetings
On May 21, 2020, the Securities and Exchange Commission ("SEC") adopted amendments to its financial disclosure requirements related to acquisitions and dispositions. These amendments streamline and eliminate immaterial...more
The Investor Advisory Committee of the U.S. Securities and Exchange Commission ("SEC") recently recommended that the SEC promulgate specific disclosure policies regarding environmental, social, and governance ("ESG") topics...more
Since the introduction of environmental, social, and governance ("ESG") investing, the environmental and governance aspects have garnered significantly more focus. Issues such as climate change (under the "E") and board...more
The new Paycheck Protection Program Flexibility Act of 2020 ("PPPFA") amends the Paycheck Protection Program ("PPP") created under the Coronavirus Aid, Relief, and Economic Security ("CARES") Act and affects both existing...more
6/8/2020
/ Borrowers ,
Business Expenses ,
CARES Act ,
Loan Forgiveness ,
New Legislation ,
Paycheck Protection Program (PPP) ,
Paycheck Protection Program Flexibility Act of 2020 (PPPFA) ,
Payroll Taxes ,
Rehiring Issues ,
Safe Harbors ,
Small Business ,
Small Business Loans
The Background: Beginning with this proxy season, ISS will use metrics based on "EVA"—economic value added—as part of its pay-for-performance analyses. ISS claims that this use of EVA-based metrics will present a better...more
Uncertainty defined the global M&A market in 2019. Geopolitical and international trade tensions, increased activism, and high valuations slowed M&A activity, as businesses worldwide reassessed risk. Many companies refocused...more
The Situation: BlackRock, the world's largest asset management firm, announced initiatives to make climate change and other sustainability issues a cornerstone of its investment strategy, including plans to increase offerings...more
The Background: SEC Staff Legal Bulletin 14K offers new guidance for companies seeking to exclude Rule 14a-8 shareholder proposals relating to a company's "ordinary business" operations.
The Issue: The SEC's previously...more
The Background: A shareholder challenged an extraordinary and extremely lucrative incentive-based compensation package awarded by Tesla to its chair, CEO, and controlling shareholder, claiming a breach of fiduciary duties....more
11/8/2019
/ Board of Directors ,
Breach of Duty ,
Business Judgment Rule ,
CD&A ,
Controlling Stockholders ,
Entire Fairness Standard ,
Executive Compensation ,
Judicial Review ,
Motion to Dismiss ,
Popular ,
Publicly-Traded Companies ,
Shareholder Litigation ,
Standard of Review ,
Tesla
The Background: The Securities and Exchange Commission ("SEC") published guidance affecting proxy advisory firms and the investment advisers that rely on them as a follow-up to its November 2018 proxy process...more
9/18/2019
/ Conflicts of Interest ,
Disclosure Requirements ,
Fiduciary Duty ,
Investment Adviser ,
Investment Management ,
Investors ,
Proxy Advisors ,
Proxy Advisory Firms ,
Proxy Voting ,
Proxy Voting Guidelines ,
Securities and Exchange Commission (SEC)