News & Analysis as of

Mergers

Weil, Gotshal & Manges LLP

A Delaware Supreme Court Footnote Reignites Concerns about the Reliability of Contractual Representations & Warranties--Are Deal...

by Weil, Gotshal & Manges LLP on

Earlier this year, in Eagle Force Holdings LLC v. Campbell, the Delaware Supreme Court created a stir in some parts of the deal lawyer community as the result of a footnote that was otherwise irrelevant to its holding. That...more

Skadden, Arps, Slate, Meagher & Flom LLP

Planning for Merger Reviews and Antitrust Inquiries in Case of a 'No-Deal' Brexit

by Skadden, Arps, Slate, Meagher & Flom LLP on

As the U.K.’s March 29, 2019, exit date from the European Union approaches, companies involved in merger reviews or antitrust investigations should pre-emptively address the risk of a “no-deal” Brexit....more

Bradley Arant Boult Cummings LLP

CFIUS and the Increasing Regulation of Foreign Investment: Part 2 - International Law News

by Bradley Arant Boult Cummings LLP on

First FIRRMA Implementation, Impact and Insights - The Foreign Investment Risk Review Modernization Act (FIRRMA) was signed into law on August 13, 2018, increasing the authority of the Committee on Foreign Investment in...more

Dechert LLP

Central Bank of Ireland Streamlines Process for UCITS Financial Indices, Share Classes, and Depositary Agreements and Mergers

by Dechert LLP on

The Central Bank of Ireland (the “Central Bank”) has introduced welcome changes to the authorisation and post-authorisation of UCITS and Retail AIFs by applying a self-certification process to a number of actions and a new...more

Weil, Gotshal & Manges LLP

A Delaware Case Has Finally Determined That There is Such a Thing as a “Material Adverse Effect”

by Weil, Gotshal & Manges LLP on

More than 17 years-ago, in In re IBP, Inc. Shareholders Litigation, then Vice Chancellor Leo Strine—now Chief Justice of the Delaware Supreme Court—required Tyson Foods to complete its agreed-upon merger with IBP. He ordered...more

McGuireWoods Consulting

Washington Healthcare Update

by McGuireWoods Consulting on

Congress - Senate - Senate Vote Fails to Block Trump Administration’s Short-Term Health Plans - On Oct. 10, the Senate failed to block the Trump administration’s expansion of short-term insurance plans. The...more

Dorsey & Whitney LLP

MAE is MIA No Longer: Delaware Court Upholds Use of “Material Adverse Event” Clause for the First Time

by Dorsey & Whitney LLP on

In Akorn, Inc. v. Fresenius Kabi AG, the Delaware Chancery Court held that Fresenius, a German pharmaceutical company, was justified in invoking a “material adverse event” (MAE) clause to terminate its $4.8 billion merger...more

Morris James LLP

Delaware Supreme Court Explains the Ab Initio Requirement of MFW

by Morris James LLP on

Flood v. Synutra Int’l, Inc., C.A. No. 101, 2018 (Del. Oct. 9, 2018) - Under Kahn v. M&F Worldwide Corp., 88 A.3d 635 (Del. 2014), commonly referred to as MFW, a controller may gain the benefit of business judgment review...more

Dechert LLP

DAMITT Q3 2018: U.S. Antitrust Agencies Announce Merger Review Reforms in Response to DAMITT Findings Number and Duration of...

by Dechert LLP on

Citing findings from the Dechert Antitrust Merger Investigation Timing Tracker (DAMITT) that have demonstrated a marked increase in the duration of significant merger investigations in recent years, DOJ Assistant Attorney...more

White and Williams LLP

Delaware Enforces Common Stockholder Contractual Waiver of Appraisal Rights

by White and Williams LLP on

The Delaware Court of Chancery in Manti Holdings LLC v. Authentix Acquisition Company recently confirmed that a stockholder agreement may contractually restrict the exercise of statutory appraisal rights. Although the court...more

Allen Matkins

Nevada Supreme Court Applies De Facto Merger Doctrine To Debt Forgiveness Transaction

by Allen Matkins on

Last month, Professor Stephen Bainbridge posed the question of whether California recognizes the de facto merger doctrine outside of the successor liability context. Here was my response. Less than two weeks later, the...more

Foley & Lardner LLP

Akorn v. Fresnius Kabi: Delaware Court Provides Guidance on What Constitutes a Material Adverse Event

by Foley & Lardner LLP on

A Delaware Chancery Court has allowed a buyer to cancel a deal based on a material adverse effect. The decision is believed to be the first of its kind in Delaware. In Akorn, Inc. v. Fresenius Kabi AG, the Delaware Court...more

Blake, Cassels & Graydon LLP

Important Recent Competition Law Developments in Canada

by Blake, Cassels & Graydon LLP on

In recent weeks, the Canadian Competition Bureau (Bureau) announced a number of initiatives relevant to companies that do business in Canada. In particular, the Bureau recently issued an information bulletin clarifying its...more

K&L Gates LLP

Delaware Chancery Court Makes Groundbreaking “Material Adverse Effect” Finding Allowing Buyer to Terminate Merger Agreement

by K&L Gates LLP on

In a landmark decision, a Delaware court has, for what is widely believed to be the first time ever, found that a material adverse effect actually occurred in an acquisition transaction, giving the buyer a right to terminate...more

White & Case LLP

Delaware Chancery Court Finds Material Adverse Effect Permitting Buyer to Walk Away from Merger Agreement

by White & Case LLP on

In a first-of-its-kind decision, the Delaware Chancery Court ruled that Fresenius Kabi AG was not required to close its $4.3 billion merger agreement with Akorn, Inc. because, after signing, Akorn suffered a Material Adverse...more

Dechert LLP

Recent Delaware Case Makes First Finding of "Material Adverse Effect": Key Takeaways

by Dechert LLP on

The recent decision of the Delaware Court of Chancery in Akorn, Inc. v. Fresenius Kabi AG et. al is the first time a Delaware court has found a material adverse effect in the M&A context, and reinforces current Delaware law...more

Akin Gump Strauss Hauer & Feld LLP

Investment Management Special Report - 2018-19 Compliance Developments & Calendar for Private Fund Advisers

by Akin Gump Strauss Hauer & Feld LLP on

Despite the new administration, the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) have both continued to make novel interpretations and to bring enforcement actions that break...more

Jones Day

Fifth Circuit Rules That Corporate Charter Provision Requiring Shareholder Consent for Bankruptcy Filing Is Enforceable but...

by Jones Day on

In a highly anticipated decision, the U.S. Court of Appeals for the Fifth Circuit recently affirmed a bankruptcy court order dismissing a chapter 11 case filed by a corporation without obtaining—as required by its corporate...more

Akin Gump Strauss Hauer & Feld LLP

Buyer’s Recourse: Delaware Court Validates Merger Termination Under Rarely Enforced Escape Clause

by Akin Gump Strauss Hauer & Feld LLP on

• In a rare move, the Delaware Court of Chancery affirmed a buyer’s contractual right to terminate a $4.75 billion merger based on a sudden and sustained decline in the seller’s business. • The decision provides guidance to...more

Cozen O'Connor

A Delaware First: Chancery Court Upholds Termination of Merger Based on MAE

by Cozen O'Connor on

On October 1, 2018, in Akorn, Inc. v. Fresenius Kabi AG, the Delaware Court of Chancery held for the first time that a buyer had validly terminated a merger agreement due to the occurrence of a “material adverse effect”...more

Bennett Jones LLP

Delaware Judge Finds Elusive MAC—Does It Change Anything?

by Bennett Jones LLP on

Purchasers of businesses often want an "escape hatch" prior to closing if the target business suffers a "material adverse change" (or a "material adverse effect"). Historically, based on court decisions primarily out of the...more

Morrison & Foerster LLP

Delaware Court of Chancery Finds a Material Adverse Event and Excuses Buyer from Obligation to Close in Akorn v. Fresenius Kabi AG

by Morrison & Foerster LLP on

The frequently cited axiom of M&A litigation that no Delaware court has ever found a material adverse event (MAE) is no longer true. On October 1, 2018, the Court of Chancery (Laster, VC) ruled in favor of a buyer that had...more

K&L Gates LLP

“Modernizing Merger Reviews”: DOJ Antitrust Division Aims to Shorten Time and Increase Efficiencies of Merger Reviews with Process...

by K&L Gates LLP on

The U.S. Department of Justice Antitrust Division’s (“Antitrust Division”) Assistant Attorney General Makan Delrahim announced last week that the Antitrust Division is instituting a series of policy changes aimed at...more

Skadden, Arps, Slate, Meagher & Flom LLP

Georgetown Law’s 12th Annual Global Antitrust Enforcement Symposium

by Skadden, Arps, Slate, Meagher & Flom LLP on

On September 25, 2018, Georgetown University Law Center hosted the 12th Annual Global Antitrust Enforcement Symposium. The event, which was co-sponsored by Skadden, featured keynote addresses from leaders of competition...more

Shearman & Sterling LLP

Delaware Court Of Chancery Rules For The First Time That MAE Justifies Termination Of Deal

by Shearman & Sterling LLP on

In a first-of-its-kind ruling, Vice Chancellor J. Travis Laster of the Delaware Court of Chancery ruled post-trial that Fresenius SE & Co. KGaA (“Fresenius”) properly terminated its $4.3 billion agreement to acquire Akorn,...more

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