Mergers & Acquisitions

Expert Analysis

• Opinion

  The Case For A Nonpolitical Federal Judiciary

  

  For the last 20 years, at the insistence of both parties, U.S. Supreme Court nominations have been fierce ideological battles — which is bad for the country and bad for the public's perception of the legitimacy of the court, say Judge Eric Moyé, Judge Craig Smith and Winston & Strawn partner Tom Melsheimer.

• A Close Look At CFIUS' New Critical Tech Reporting Rule

  

  A recently finalized rule from the Committee on Foreign Investment in the United States, aligning transaction reporting requirements with export control regulations for critical technology, brings several new considerations for buyers and sellers, says Zlatko Hadzismajlovic at McCarter & English.

• Negotiating M&A Bank Engagements During A Downturn

  

  Amid the pandemic slowdown, companies considering mergers and acquisitions should prioritize negotiating engagement letters to minimize risk, align their interests with their investment bank's, and maximize price and the likelihood of a closed deal, say Matthew Misichko and David Kaufman at Thompson Coburn.

• Anthem-Cigna Merger Ruling Highlights Post-Deal Issues

  

  The Delaware Chancery Court's recent decision to halt the Anthem-Cigna merger on antitrust grounds is most notable for not holding Cigna liable for breaching its obligation to support the transaction, and underscores the vulnerability of merger-of-equals transactions to post-signing issues, say attorneys at Fried Frank.

• The Keys To A Better Privilege Logging Paradigm

  

  Current privilege logging practices to identify what information is being withheld from discovery often lead to costly disputes, so practitioners should adopt a system based on trust and good faith, similar to the presumptions embedded in the business judgment rule for corporate directors and officers, say Kevin Brady at Volkswagen and Charles Ragan and Ted Hiser at Redgrave.

• White House Due Process Memo Could Reform Enforcement

  

  A little-noticed memo recently issued by the Trump administration in response to the pandemic, directing federal agencies to provide greater due process to individuals and companies under regulatory investigation, represents a long-overdue sea change in the way justice is carried out in enforcement proceedings, say Joan Meyer and Norman Bloch at Thompson Hine.

• Chancery Ruling Offers Takeaways On Conflicts In M&A Sales

  

  The Delaware Court of Chancery's recent decision in Rudd v. Brown — a challenge to Outerwall's $1.6 billion sale to Apollo — provides valuable insight in the context of conflicts of interest and director and officer fiduciary duties during M&A sales processes completed amid threats of activist-driven proxy contests, says Sawyer Duncan at King & Spalding.

• Law Firm Hiring Considerations In A COVID-19 Economy

  

  Financially robust law firms are entering the recruiting market aggressively knowing that dislocations like the COVID-19 crisis present rare competitive opportunities, and firms that remain on the sidelines when it comes to strategic hiring will be especially vulnerable to having their best talent poached, says Brian Burlant at Major Lindsey.

• Cannabis Mergers Skewed Hart-Scott-Rodino Report Data

  

  Data in the recently released 2019 Hart-Scott-Rodino report is plagued by nine of 31 significant merger investigations having involved cannabis industry mergers for which credible antitrust concerns were lacking, making meaningful comparison with enforcement efforts in previous years difficult, says Jack Sidorov at Lowenstein Sandler.

• Considerations For M&A Targets Holding PPP Loans

  

  As businesses with Paycheck Protection Program loans examine potential sales, they should take into account how the structure of the transaction will impact their ability to utilize any unused portion of their PPP loan or to obtain loan forgiveness, say Michael Shaw and Peter Shepard at Much Shelist.

• Opinion

  Lawyers Must Act To Preserve Democracy This Election

  

  COVID-19 concerns and glaring gaps in registration threaten to dampen voter turnout in the 2020 election, so attorneys should take on the problem by leveraging their knowledge and resources in seven ways, says Laura Brill at Kendall Brill.

• Best Practices For Health Care Mergers In The COVID-19 Era

  

  Health providers considering consolidation as a result of the pandemic's impact should attempt to mitigate antitrust enforcers' concerns by substantiating a merger with evidence of cost and quality efficiencies and making efforts to seek competition-friendly alternatives, say attorneys at Shook Hardy.

• New FCPA Guide Signals Laxer Successor Liability Approach

  

  Recent updates by the U.S. Department of Justice and U.S. Securities and Exchange Commission to the Foreign Corrupt Practices Act resource guide focus on timeliness and thoroughness of post-acquisition due diligence, indicating a potential relaxation of stringent requirements for M&A successor liability, say Paige Ammons and Bree Murphy at Buckley.

• M&A In The Energy Industry: 6 Current Trends

  

  The COVID-19 pandemic and the oil price war between Saudi Arabia and Russia sent demand for oil plunging this year — but an abundance of distressed assets means that ample opportunities for mergers and acquisitions in the energy sector still exist, say attorneys at Winston & Strawn.

• M&A Bargain Hunters Should Heed The WARN Act

  

  Companies seeking opportune acquisitions amid the economic downturn should be aware that buyers are not immune from liability under the Worker Adjustment and Retraining Notification Act where transactions result in plant closings or mass layoffs, say Amelia Henderson and Kayla Haines at Smith Hulsey.