Private Equity

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.

• 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.

• Hurdles Ahead For Stock Exchange Direct Listings

  

  The U.S. Securities and Exchange Commission's recent approval of primary direct listings at the New York Stock Exchange suggests that companies wishing to bypass initial public offerings may soon have that option, but not without a fight over investor protection and liability concerns, say attorneys at Cleary.

• 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.

• 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.

• How To Effectively Defend Witnesses In Remote Depositions

  

  When a witness is isolated from the defending lawyer during a remote deposition, carefully planning the logistics and building witness confidence are critical to avoiding damaging admissions, say Jessica Staiger at Archer Daniels and Alec Solotorovsky at Eimer Stahl.

• Chancery Ruling Highlights Fraud Claim Risk For PE Sellers

  

  The Delaware Chancery Court recently declined to dismiss fraud claims against private equity firm NGP Energy Capital in its sale of Agspring, reminding private equity sellers that they may be liable for a portfolio company's fraudulent representations, say attorneys at Fried Frank.

• How The Pandemic Is Changing Stock Volatility Calculations

  

  The COVID-19 pandemic is causing changes to beta measurement of stock sensitivity to market movements, and experts face the difficult question of whether to incorporate this changed beta into valuations in litigation, say Andrew Roper at Catalyst Economic Consulting and Clifford Ang at Compass Lexecon.

• Whether And How To Compel Remote Arbitration

  Excerpt from Practical Guidance

  

  As the pandemic delays in-person arbitration hearings, mediator and arbitrator Theodore Cheng provides arbitrators with a checklist to examine the rationale and authority for compelling parties to participate in remote hearings.

• Negotiating PE Sponsor Guarantees Amid Economic Unrest

  

  As lenders look to deep-pocketed private equity sponsors amid the ongoing economic crisis, sponsors should understand how guarantees can enable struggling portfolio companies to access additional liquidity, and lenders will want to prepare for common touchpoints in negotiations, say Anastasia Kaup and Robert Horwath at Duane Morris.