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
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
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
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
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
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
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 ("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
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
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
Munich partner Benno Schwarz is the author of "Im Fadenkreuz der Regulatoren – Worauf Strategische und Private-Equity-Investoren Bei M&A-Transaktionen Achten Müssen" [PDF] published on January 16, 2012 by Betriebs-Berater.
Client Alert | January 16, 2012
For the last decade, governance issues have been a priority at public companies and companies planning to go public. Recent joint venture activity reflects a carryover from the public company arena of this intense focus on improving governance.
Client Alert | January 11, 2012
Paris partners Jérôme Delaurière and Ariel Harroch are the authors of "De la nouvelle réforme des règles de lutte contre la sous-capitalisation" [PDF] published on January 9, 2012 in La Lettre Capital Finance, issue 1044, page 12 (www.capitalfinance.eu).
Client Alert | January 9, 2012
According to a reform applicable as of January 1, 2012, the right to deduct interest due with respect to the purchase of shares in French target companies will be denied, unless the French acquiring company demonstrates -- by any means -- that (i) the decisions relating to such shares and (ii) the control over the target companies are effectively made by it or by a related party established in France.For the purpose of this reform, a related party can be a controlling company or an entity controlled by or under common control with the acquiring company. This new rule targets the purchase of shareholdings that are eligible for the French long-term participation exemption regime, i.e.
Client Alert | December 22, 2011
As you may know, the UK rules on public company takeovers changed in September. In particular, deal protections (including break fees) for bidders have been generally outlawed and also the time during which a bid must be tabled once an approach has been announced is now an automatic fixed period of 28 days.
Client Alert | November 28, 2011
New York partner Rashida La Lande is the author of "Deals With Controlling Stockholders: 5 Tips for Boards" [PDF] published on November 2, 2011 on Boardmember.com.
Client Alert | November 2, 2011
On October 14, 2011, Chancellor Strine of the Court of Chancery of the State of Delaware issued a decision in In re Southern Peru Copper Corp. Shareholder Derivative Litig., C.A.
Client Alert | October 17, 2011
Washington, D.C. partner Stephen Glover is the author of "Unlocking Stockholder Value with Spin-Offs" [PDF] published in the October 2011 issue of LexisNexis Emerging Issues Analysis.
Client Alert | October 1, 2011
As we reported in our 2011 Mid-Year Merger Enforcement Update, federal courts are currently reviewing a number of cases that could have a significant impact on the antitrust analysis of mergers and acquisitions. Two noteworthy circuit court decisions were handed down recently. In City of New York v. Group Health Inc., No.
Client Alert | August 29, 2011
As was the case in 2010, antitrust enforcers in the United States and Europe have continued to make headlines by intervening in major merger cases and launching new policy initiatives. While M&A activity on both sides of the Atlantic continues to recover from the global financial crisis, it appears that antitrust enforcers are placing a higher priority on merger enforcement, a pattern that is likely to continue for the foreseeable future.This Update covers notable merger enforcement trends and cases in the United States, European Union, and the rest of the world. THE UNITED STATESIt has been an eventful year in U.S.
Client Alert | August 9, 2011
In a letter dated May 23, 2011, the Securities and Exchange Board of India ("SEBI", and such letter, the "SEBI Letter") took the view that put/call options governing the shares of an Indian public listed company are unenforceable.
Client Alert | August 2, 2011
On July 28, 2011, the Securities and Exchange Board of India ("SEBI") proposed new Takeover Regulations based on recommendations of the Takeover Regulations Advisory Committee ("TRAC").
Client Alert | July 29, 2011
On July 7, 2011, the Federal Trade Commission (FTC) and U.S.
Client Alert | July 27, 2011
The Indonesian House of Representatives on 31 May 2011 passed Law No.
Client Alert | July 15, 2011
Los Angeles partner Linda Curtis and Century City associate Melissa Barshop are the authors of "Financing Provisions in Acquisition Agreements" [PDF] published in the Summer 2011 issue of California Business Law Practitioner.
Client Alert | July 1, 2011
Please note that the jurisdictional thresholds set out in the client alert below refer to the assets "or" turnover of entities involved in the combination. Accordingly, if the acquirer and target, or surviving entity or group, as applicable, meet either the specified asset threshold or the specified turnover threshold, the regulations will apply. Also, an enterprise whose control, shares, voting rights or assets are being acquired and that has assets of not more than Rs.
Client Alert | April 28, 2011
On April 8, 2011, the Delaware Court of Chancery, in denying a motion to dismiss, ruled in Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH, C.A.
Client Alert | April 26, 2011
Printable PDFThe Panel Holds Its Ground -- An Analysis of Some of the Key Proposals Introduction -- The Panel Stands FirmIn late November 2010, we published an article on the policy statement of the UK Panel on Takeovers and Mergers (Panel) which set out the ground work for changes to the rules governing the conduct of public takeovers in the UK as embodied in the UK Code on Takeovers and Mergers (Code).
Client Alert | March 29, 2011
On February 11, 2011, the German Parliament approved the bill for the so-called "Investor Protection and Capital Markets Improvement Act" (Anlegerschutz- und Funktionsverbesserungsgesetz) which is part of the ongoing legislative activity responding to the financial crisis.
Client Alert | February 18, 2011
Printable PDFOn February 15, 2011, the Delaware Court of Chancery issued an important opinion upholding the continued vitality of the poison pill as an appropriate defensive measure for companies faced with takeover proposals deemed inadequate by the target's board of directors. Chancellor Chandler's 158 page decision in Air Products & Chemicals, Inc.
Client Alert | February 17, 2011
In a significant development for those who may litigate in the Delaware Court of Chancery, that court has issued guidelines regarding preservation of electronically stored information in cases before it.
Client Alert | January 28, 2011
The issuance of new horizontal merger guidelines is the most significant merger enforcement achievement of the FTC and the U.S.
Client Alert | December 22, 2010
On November 23, 2010, in Airgas, Inc. v. Air Products & Chemicals, Inc., --- A.3d ----, 2010 WL 4734305 (Del. Nov. 23, 2010), the Delaware Supreme Court reversed last month's decision of the Court of Chancery, Airgas, Inc.
Client Alert | November 29, 2010
On 1 June 2010 the UK Panel on Takeovers and Mergers (Panel), issued a 'Green' Consultation Paper on the Review of Certain Aspects of the Regulation of Takeover Bids in the UK (Green Paper).
Client Alert | November 24, 2010
On October 8, 2010, the Court of Chancery of Delaware issued an important opinion, Airgas, Inc. v. Air Products & Chemicals, Inc. (Del. Ch. Oct. 8, 2010), with significant implications for public corporations with staggered boards.
Client Alert | October 12, 2010
New York partner Eduardo Gallardo and associate Jessica Lau are the authors of "Minority Freeze-Out Transactions Revisited" [PDF] published online by Law360 on September 7, 2010 at law360.com.
Client Alert | September 7, 2010
On August 19, 2010, the U.S. Department of Justice ("DOJ") and Federal Trade Commission ("FTC") issued revised Horizontal Merger Guidelines ("2010 Guidelines"). The release of the 2010 Guidelines marks the first major changes to the Guidelines in over 18 years; they will replace the 1992 Guidelines (which were subsequently amended in 1997). A copy of the 2010 Guidelines is available on the DOJ's website at http://www.justice.gov/atr/public/guidelines/hmg-2010.html and on the FTC's website at http://www.ftc.gov/os/2010/08/100819hmg.pdf.
Client Alert | August 24, 2010
On August 13, 2010, the Federal Trade Commission (FTC) issued a notice of proposed rulemaking that would make literally dozens of changes in the specific requirements for completion of a Notification and Report Form (the Form) for premerger notification of mergers and acquisitions under the Hart-Scott-Rodino (HSR) Act (15 U.S.C.
Client Alert | August 19, 2010
On August 11, 2010, the Delaware Court of Chancery issued an important opinion in the area of stockholder rights plans, or poison pills. Vice Chancellor Strine's opinion in Yucaipa American Alliance Fund II, L.P.
Client Alert | August 17, 2010
In a recent ruling with important implications for parties structuring minority freeze-out transactions, Vice Chancellor Travis Laster of the Delaware Court of Chancery embraced a unified standard for reviewing such transactions, regardless of whether they are effected by means of a negotiated merger or a unilateral tender offer. In In re CNX Gas Corp.
Client Alert | June 4, 2010
Century City Jonathan K. Layne and Los Angeles associate Benyamin S. Ross are the authors of "Fiduciary Duties In Delaware LLC Agreements" [PDF] publised online by Law360 on March 31, 2010 at law360.com.
Client Alert | March 31, 2010
On February 26, 2010, the Court of Chancery of the State of Delaware issued an important opinion validating the use of a net operating loss (NOL) shareholder rights plan or poison pill. The case, Selectica, Inc.
Client Alert | March 3, 2010
During the last decade, activist shareholders and corporate governance groups have been fairly successful in pressuring companies to voluntarily surrender a number of anti-takeover defenses, most notably the use of staggered boards and shareholder rights plans (also referred to as "poison pills").
Client Alert | January 28, 2010
On January 15, 2010, the Third Circuit Court of Appeals issued a decision affecting the approval of break-up fees in connection with Section 363 bankruptcy sales.
Client Alert | January 27, 2010
A recent court judgment passed by the District Court (Landgericht) Frankfurt in October 2009 may signal the end of a long-since established German corporate and financing practice, the notarization of limited liability company share transfers or share pledges in Switzerland.
Client Alert | January 12, 2010
Munich partner Philip Martinius and associate Jan Querfurth are the authors of "Germany and Austria: Broad Measures" [PDF] published in the June 25, 2009 issue of Legal Week.
Client Alert | June 25, 2009
Common issues confronting acquirors involve retaining the target company’s key employees and protecting against the loss of business to defecting employees. A recent Delaware Court of Chancery decision addressed issues faced by an acquiror, where a group of the target company’s employees plotted to leave the target company and launch a competing business prior to the acquisition’s close. The court’s decision in Ivize of Milwaukee, LLC v. Compex Litigation Support, LLC will likely cause acquirors to more aggressively seek and obtain employment and/or non-competition agreements from key target employees, particularly where the success of the acquisition depends upon a relatively small number of key employees. The Case In early 2007, Compex Legal Services (&qu
Client Alert | June 15, 2009
Current market conditions have produced an uptick in unsolicited merger and acquisition activity, as well as shareholder activist campaigns. However, many unsolicited bidders and activists have been forced to rethink their strategies by the presence of change-in-control put provisions in the documents governing their targets’ publicly traded debt. These provisions--commonly referred to as "poison puts"--are not an uncommon feature of publicly traded debt and other finance instruments and give bondholders and other creditors the right to call the issuer’s debt upon the occurrence of certain fundamental change-in-control events. Such events often include a forced change in the composition of a majority of the issuer’s board (a so-called "continuing dire
Client Alert | June 8, 2009
Mergers and acquisitions have been hit hard by the downturn, with Thomson Reuters reporting that the ratio of "withdrawn deals" to completed deals in 2008 was at an all-time high - higher even than during the tech meltdown of 2001.The U.S.
Client Alert | May 19, 2009
The economic downturn has virtually frozen acquisition financing and collapsed the value of many companies, which is credited for breaking up numerous acquisitions.
Client Alert | May 18, 2009