Mergers and Acquisitions

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How Would Delaware Courts Treat Fiduciary-Out Provisions?

Dallas partner Robert Little and associate Caitlin Peterson are the authors of “How Would Delaware Courts Treat Fiduciary-Out Provisions?” [PDF] published in the April 17, 2013 issue of the Delaware Business Court Insider.

Client Alert | April 17, 2013

European Commission Proposes Stricter EU Antitrust Rules on Technology Transfer

The current legal regime which applies to the assessment of technology transfer arrangements under EU antitrust rules is about to undergo some significant changes by this time next year.

Client Alert | April 1, 2013

Clarification of COMESA Merger Control Procedures Anticipated, Following First Notification to African Regional Competition Authority

On 13 March 2013, it was announced that Philips Electronics and Funai Electric have lodged the first application for merger control review with the supra-national COMESA Competition Commission (CCC), since the vesting of merger review powers in that body in January this year.  Practitioners hope that this review, which in many ways can be seen as a test case, will help clarify several key aspects of COMESA's newly introduced merger control practices and procedures.The COMESA Competition Commission COMESA is the Common Market for Eastern and Southern Africa.  It was formed in 1994 with a view to promoting economic development, as well as peace and security in the region.  Currently it comprises 19 member states.

Client Alert | March 29, 2013

2013 Antitrust Merger Enforcement Update and Outlook

Our 2012 Antitrust Merger Enforcement Update and Outlook reported on a number of emerging trends and initiatives by antitrust enforcers around the world.

Client Alert | March 21, 2013

Delaware Court of Chancery Rejects Settlement of M&A Litigation Based on Immateriality of Additional Disclosures and Inadequacy of Named Plaintiffs

On February 28, 2013, Chancellor Leo E. Strine, Jr. of the Delaware Chancery Court issued a rare bench ruling rejecting a disclosure-only, negotiated settlement of an M&A stockholder lawsuit.

Client Alert | March 18, 2013

Shareholder Activism in the UK: An Introduction

This alert provides a summary of certain principles of English law and UK and European regulation applicable to UK-listed public companies and their shareholders that may affect shareholder activism, namely (i) stake-building, (ii) shareholders' rights to require companies to hold general meetings, (iii) shareholders' rights to propose resolutions at annual general meetings and (iv) recent developments in these and related areas.

Client Alert | March 15, 2013

Delaware Court of Chancery Confirms That a Reverse Triangular Merger Does Not Result in an Assignment by Operation of Law

On February 22, 2013, in Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH, C.A. No. 5589-VCP (Del. Ch.

Client Alert | March 1, 2013

In re Novell: Directors’ Bad Faith in a Sale Process

New York partners Brian Gingold and Eduardo Gallardo, and associate Stephenie Gosnell Handler are the authors of “In re Novell: Directors’ Bad Faith in a Sale Process” [PDF] published in the Delaware Business Court Insider on February 20, 2013.

Client Alert | February 20, 2013

M&A Report – Winter 2013

Please find the Winter 2013 edition of the Gibson Dunn M&A Report Here. This edition of the Report contains timely information on several important M&A topics, including trends in public merger agreement no-shop and fiduciary out provisions, the latest on shareholder activism, suggestions for dealing with the fall-out from stock drops, and insights on important recent Delaware court pronouncements.

Client Alert | February 19, 2013

Changing of the guard

Dubai partner Hardeep Plahe and Brussels associate Alejandro Guerrero are the authors of “Changing of the guard” [PDF] published in the February 19, 2013 issue of Competition Law Insight.

Client Alert | February 19, 2013

New Investment Funds Regulations for the UAE

Dubai partners Hardeep Plahe and Chézard Ameer are the authors of "New Investment Funds Regulations for the UAE" [PDF].

Client Alert | February 1, 2013

New UAE Antitrust Legislation in Force from February 23, 2013 — Six-Month Grace Period before Enforcement

On October 23, 2012, the United Arab Emirates enacted its Federal Competition Law (Federal Law No. (4) of 2012) ("FCL"), which laid down new rules on anti-competitive agreements, merger control and abuse of dominance.

Client Alert | January 18, 2013

2012 Year-End German Law Update

In retrospect, 2012 likely will be remembered as another year of manifold challenges in the Eurozone and of slow consolidation rather than one of fundamental reform or renaissance.

Client Alert | January 10, 2013

Walking the High Wire: Guidelines for Board of Director Designees Of Private Equity Funds, Activist Stockholders and Other Investors

Dallas partner Robert Little and associate Chris Babcock are the authors of “Walking the High Wire: Guidelines for Board of Director Designees Of Private Equity Funds, Activist Stockholders and Other Investors” [PDF] published in the December 10, 2012 issue of Bloomberg/BNA's Securities Regulation & Law Report.

Client Alert | December 10, 2012

Delaware Court of Chancery Rules “Don’t Ask, Don’t Waive” Standstill Provision Unenforceable

On November 27, 2012, Vice Chancellor Travis Laster of the Court of Chancery of the State of Delaware issued a bench ruling enjoining the enforcement of a "Don't Ask, Don't Waive" provision in a standstill agreement.

Client Alert | December 3, 2012

Myanmar Adopts New Foreign Investment Law

After a period of intense political wrangling and lengthy delays, on 2 November 2012 the President of Myanmar signed into effect a new foreign investment law (the FIL) to replace the previous foreign investment law enacted in 1988.  The new FIL comes at a time of momentous political and economic change within Myanmar that has seen the country move at an unprecedented pace in rejoining the international community after decades of isolation.  Following is a summary of the key provisions of the FIL based on an unofficial translation made available to us, concluding with a brief assessment of the reception the law has received in the foreign investment community.Pertinent AuthoritiesThe FIL designates the Myanmar Investment Commission (the MIC) as the principal government organ for a

Client Alert | November 20, 2012

Delaware Court of Chancery Dismisses Hastily Filed Caremark Action for Lack of Adequate Investigation but Explicitly Preserves Potential Claims by Other Shareholders and Counsel

On September 25, 2012, Vice Chancellor Travis Laster of the Court of Chancery of the State of Delaware dismissed the derivative complaint in South v. Baker, C.A.

Client Alert | October 2, 2012

Indian Government Liberalizes the Aviation, Broadcasting and Power Sectors

The Government of India ("Indian Government") has approved a number of significant amendments to India's foreign direct investment ("FDI") policy in a variety of sectors including aviation, broadcasting, power and retail.

Client Alert | October 1, 2012

Indian Government Liberalizes Foreign Direct Investment in the Retail Sector

The Government of India ("Indian Government") has approved a number of far-reaching amendments to India's foreign direct investment ("FDI") policy in the retail sector through the issuance of Press Note 4 of 2012 and Press Note 5 of 2012, each dated September 20, 2012.

Client Alert | September 28, 2012

California Court of Appeal Decision Highlights Importance of Tying Non-Competes to Sale of Business

On August 24, 2012, in the case of Fillpoint, LLC v. Maas, a California appellate court issued an opinion reinforcing both California's general public policy against covenants not to compete and the important exceptions to that rule.  While California Business and Professions Code § 16600 generally declares void any covenant that restrains an individual from engaging in a lawful profession, trade or business, § 16601 provides an exception to this rule for covenants executed in connection with the sale of a business.  The Fillpoint case instructs that, to qualify for § 16601's sale-of-business exception, employers must thoroughly document and tether any non-compete covenant to the sale of a business.Fillpoint: Factual Background.In Fillpoint, Michael Maas worked

Client Alert | September 20, 2012

Defining a Joint Venture’s Scope of Business: Key Issues to Consider

Early in the discussions about whether and how to form a joint venture -- perhaps as the very first significant issue to be resolved -- the potential joint venture partners will try to agree on the scope of the venture's business.  That definition is usually embodied in one or more of the venture agreements, and may circumscribe the nature of the venture's business, potential future lines of business into which the venture may expand, geographic areas in which the venture will or may operate, and how deviations from the venture's scope will be determined and approved by the venture partners.  As partners negotiate the scope of the venture's business, they also need to focus on the key corollary provisions of the venture arrangement impacted by the agreed-upon scope.  T

Client Alert | September 12, 2012

European Court of Justice Permits Cross-Border Movement of National Companies into Other EU Member States by Way of Conversion of Company Form

The European Court of Justice ("ECJ") has ruled that cross-border migration by way of converting into a company format subject to the laws of a different EU member state is protected and permitted by overriding EU law even in cases where the national laws of the two countries in question do not provide for such a possibility.I.   The Decision of the ECJ in the VALE-CaseIn its judgment of July 12, 2012 (Case C-378/10, VALE Építési kft), the ECJ has answered one of the last open, fundamental questions of cross-border movement of European companies among EU member states.

Client Alert | September 7, 2012

The JOBS Act: What It Means for Capital Markets Practices and Capital-Raising Strategies

New York partner Glenn Pollner is the author of "The JOBS Act: What It Means for Capital Markets Practices and Capital-Raising Strategies" [PDF] appearing as a chapter in the 2012 Edition of Aspatore's Inside the Minds: Recent Developments in Securities Law.

Client Alert | September 1, 2012

An Expert’s View

New York partner Eduardo Gallardo is the author of "An Expert's View" [PDF] published in the September 2012 issue of PLC's Practical Law The Journal.

Client Alert | September 1, 2012

Revised Policy on Downstream Investment by Foreign-Owned Indian Banking Companies

The Government of India ("Government") has revised its policy in relation to downstream investments by banking companies incorporated in India that are owned and/or controlled by non-residents or non-resident entities ("Revised FDI Policy").

Client Alert | August 13, 2012

Back to Square One? German Constitutional Court Rewrites Delisting Rules

On July 11, 2012, the German Federal Constitutional Court (Bundesverfassungsgericht -- BVerfG) released an important judgment concerning the conditions of a delisting of a public company from the regulated market in Germany.

Client Alert | July 24, 2012

Covering the Bases

Dallas partner Robert Little and associate Travis Souza are the authors of "Covering the Bases: When it comes to making representations and warranties, timing can be everything" [PDF] published in The Deal on July 16, 2012.

Client Alert | July 16, 2012

Ins and Outs of Purchasing Natural Gas-Fueled Power Plants

Dallas partner Robert Little is the author of "Ins and Outs of Purchasing Natural Gas-Fueled Power Plants" [PDF] published in Texas Lawyer on July 16, 2012.

Client Alert | July 16, 2012

Avoiding Unintended Consequences of Damage Waiver Provisions in M&A Agreements

Acquisition agreements often contain provisions that restrict or prohibit the payment of "consequential," "special," or "incidental" damages for breach.

Client Alert | July 10, 2012

European Court Tightens Disclosure Rules

On June 28, 2012, the European Court of Justice ("ECJ") issued an important judgment that will have a significant impact on the disclosure of non-public, price-sensitive information (so-called "inside information") by public companies listed on stock exchanges in the European Union ("EU").

Client Alert | July 9, 2012

EU Prospectus Directive: Amendment Update

The prospectus regime is being amended throughout Europe and this Alert provides (i) a summary of the key provisions of Directive 2010/73/EU (the "Amending Directive"), which amends the Prospectus Directive 2003/71/EC (the "Prospectus Directive"), and (ii) details of the related recently published delegated amending regulations, which amend the Prospectus Regulation 809/2009 (the "Prospectus Regulation").  Some of these changes have already been implemented in the UK and others will come into force on 1 July 2012.  These changes will modify:when the Prospectus Directive does not apply;when a prospectus which complies with the Prospectus Directive (a "Prospectus") must be published;requirements in relation to the form and content of a Prospe

Client Alert | June 28, 2012

SEC Staff Guidance on Shareholder Proposals During 2012 Proxy Season

There have been a number of significant shareholder proposals submitted during the 2012 proxy season to date.  This alert summarizes notable responses by the Securities and Exchange Commission (the "SEC") staff (the "Staff") to no-action requests concerning many of these shareholder proposals.  By way of background, according to Institutional Shareholder Services ("ISS"), 1,105 proposals have been submitted to companies to date for 2012 annual meetings.  As of May 22, 2012, 303 no-action requests had been submitted to the SEC since October 1, 2011.  This is comparable to the number of shareholder proposal no-action requests submitted during a similar period in 2011.  Moreover, repeating the experience in 2011, the number o

Client Alert | May 29, 2012

Recent Trends in Joint Venture Exit and Termination Provisions

Where tax and other considerations make it possible, we find many of our clients use the joint venture structure because it provides tremendous flexibility to the joint venture partners in structuring their relations and determining how the joint venture will operate.  Most savvy joint venture partners also enjoy the flexibility the joint venture structure allows in deciding when and how partners can unwind or exit the venture.  The exit and termination provisions of a joint venture are almost always a key issue in negotiations in forming a joint venture, and the joint venture structure allows the parties to tailor creative solutions to meet the specific business goals and needs of the joint venture partners and the joint venture itself.  This alert explores common concepts

Client Alert | May 21, 2012

Delaware Court of Chancery Expedites Proceedings to Enjoin Enforcement of Advance Notice Bylaw

The Delaware Court of Chancery recently issued an opinion granting Carl Icahn's motion to expedite proceedings to determine whether to enjoin enforcement of Amylin Pharmaceuticals Inc.'s advance notice bylaw.

Client Alert | May 17, 2012

First Steps upon Receiving an Unsolicited Takeover Proposal

Hostile bids continue to be a popular M&A strategy both domestically and internationally. Moreover, the gradual erosion of staggered boards and other antitakeover defenses in the U.S.

Client Alert | May 14, 2012

UK Government Publishes Consultation to Promote Private Sector Challenges to Anti-Competitive Practices

On April 24, 2012, the UK Government published a consultation paper on methods to promote private sector challenges to anti-competitive practices in the UK.

Client Alert | May 8, 2012

Delaware Court of Chancery Issues Important Guidance for the Drafting and Negotiation of M&A Confidentiality Agreements

On May 4, 2012, Chancellor Strine of the Delaware Court of Chancery issued an opinion finding that Martin Marietta Materials, Inc. breached two confidentiality agreements with Vulcan Materials Company when it commenced a $5.5 billion hostile bid for Vulcan in December 2011.

Client Alert | May 7, 2012

Foreign Venture Capital Investors Permitted to Participate in the Secondary Market

The Reserve Bank of India ("RBI") recently issued a circular permitting foreign venture capital investors registered with the Securities and Exchange Board of India ("FVCI") to participate in secondary market transactions, with effect from March 19, 2012.

Client Alert | April 24, 2012

Under Fire: Continued Attacks on Exclusive Forum Provisions May Slow Adoption

Century City partner David Hernand and Los Angeles associate Thomas Baxter are the authors of "Under Fire: Continued Attacks on Exclusive Forum Provisions May Slow Adoption" [PDF] published in the April 2012 issue of Wall Street Lawyer.

Client Alert | April 20, 2012

Five Tips for Directors of Retail and Consumer Products Companies

New York partner Lois Herzeca is the author of "Five Tips for Directors of Retail and Consumer Products Companies" [PDF] published by Corporate Board Member at on April 2, 2012.

Article | April 2, 2012

Private Antitrust Merger Litigation on the Rise

Recent developments serve as a reminder that private litigation challenging proposed and consummated M&A transactions, though infrequent and often unsuccessful, do continue to arise and in fact appear to be on the incline.  Whether they are filed before or after the transaction is consummated, such suits can create additional uncertainty and additional burdens on the merging parties.  It therefore pays to be alert for situations posing a somewhat higher risk of private merger suits and to stay abreast of relevant trends.  Sean Royall and Adam Di Vincenzo of Gibson Dunn are co-authors of the attached article, "When Mergers Become A Private Matter:  An Updated Antitrust Primer," which examines a range of recent private merger challenges brought by competitor

Client Alert | March 29, 2012

UK Government Announces Merger between the Country’s Two Competition Authorities

On March 15, 2012, the UK Government published its response to a consultation relating to the possible reform of the UK's competition regime ("Response").

Client Alert | March 19, 2012

2012 Antitrust Merger Enforcement Update and Outlook

As we reported in our 2011 Mid-Year Update, antitrust and competition authorities around the world have continued to intensify merger enforcement efforts and have launched a number of important merger-related policy initiatives.  In the United States, the Department of Justice, Antitrust Division ("DOJ") succeeded in blocking three major transactions over the past year, while increasing scrutiny of vertical mergers and patent acquisitions.  The European Commission (the "Commission") issued two prohibition decisions -- the Commission's first prohibition decisions since 2007 -- blocking proposed transactions in the airline and financial services sectors.  Antitrust authorities in some of the world's largest and fastest-growing economies -- Brazil, Chin

Client Alert | March 9, 2012

El Paso Corp.: Delaware Court of Chancery Criticizes M&A Process but Refuses to Issue Preliminary Injunction to Delay Sale in the Absence of Rival Takeover Bid

On February 29, 2012, Chancellor Strine of the Delaware Court of Chancery issued an opinion that is highly critical of the sale process run by El Paso Corporation in connection with its $21.1 billion acquisition by Kinder Morgan, Inc.  See In re El Paso Corporation Shareholder Litigation, No.

Client Alert | March 5, 2012

Delaying Judgment Day: How to Defer Stockholder Votes in Contested M&A Transactions

New York partners Lois Herzeca and Eduardo Gallardo are the authors of "Delaying Judgment Day: How to Defer Stockholder Votes in Contested M&A Transactions" [PDF] published in the March 2012 issue of Insights.

Article | March 1, 2012

The Government of India Allows up to 100% FDI in Single-Brand Product Retail Trading (subject to certain conditions)

On January 10, 2012, the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India, issued a press note amending the Consolidated Foreign Direct Investment ("FDI") Policy of October 2011 ("Amendment").  AmendmentThe Amendment allows up to 100% FDI in single-brand product retail trading with the prior approval of the Government of India, increased from a previous 51%, subject to the following conditions:  Single-brand only: Products to be sold should be of a 'Single-Brand' only;  International brand: Products should be sold under the same brand in one or more countries other than India; Branded during manufacturing: Single-brand product retail trading only covers products which are branded dur

Client Alert | January 26, 2012

Issuer Stock Repurchases during a Hostile Tender Offer

New York partners Lois Herzeca and Eduardo Gallardo are the authors of "Issuer Stock Repurchases during a Hostile Tender Offer" [PDF] published in the January 25, 2012 issue of Bloomberg's Corporate and M&A Law Report.

Client Alert | January 25, 2012

The Supreme Court of India Rules in Favor of Vodafone in a Landmark Judgment

The Supreme Court of India ("Supreme Court") on January 20, 2012 has overturned a 2010 decision of the Bombay High Court which ruled that Vodafone was liable to pay $2 billion to the Indian tax authorities because Indian capital gains taxes applied on share transfers between two non-resident entities, as long as the underlying assets transferred were within India.The case in question involved Vodafone International Holdings BV's acquisition of CGP Investments from Hutchison Telecommunication International Limited ("HTIL").  HTIL, a company incorporated in BVI, owned CGP Investments, a company incorporated in Cayman Islands, which through its Mauritius subsidiaries owned and/or controlled approximately 67% of one of India's leading mobile phone operators - Vodafone

Client Alert | January 20, 2012

French Transfer Tax Reform Immediately Applicable to Transfer of Shares of Listed and Non-Listed Companies

As from January 1st, 2012, the French Finance Act has significantly increased the transfer tax applicable to the transfer of shares of non-real estate companies.BackgroundBefore the reform, transfer tax at the rate of 3% was due on the sale of shares of French companies, with the tax capped at € 5,000 per transfer with respect to the transfer of shares in sociétés par action (i.e.

Client Alert | January 20, 2012

A Proposed Limitation by Bank Indonesia on Bank Ownership Looms on the Horizon

Over the past ten years, Indonesia's commercial banking sector has been an attractive destination for foreign investors.  This has been in large part due to the Indonesian government's relaxed banking policy, which until now has been geared towards fostering foreign investment in the industry.  A proposed amendment to the banking policy, however, may have significant consequences for current and potential investors.Following the 1997 Asian financial crisis, the Indonesian government enacted Government Regulation No.

Client Alert | January 19, 2012