Search Results for: "Kevin Miller"
Tomorrow’s Webcast: “M&A Litigation in the Covid-19 Era” [June 24, 2020]
Tune in tomorrow for the webcast – “M&A Litigation in the Covid-19 Era” – to hear Hunton Andrews Kurth’s Steve Haas, Wilson Sonsini’s Katherine Henderson and Alston & Bird’s Kevin Miller review the high-stakes battles being waged over deal terminations and other M&A litigation issues arising out of the Covid-19 crisis. – John Jenkins
Rural/Metro One Year Later: Ongoing Doctrinal Concerns [December 8, 2016]
Here’s an interview that I recently conducted with Kevin Miller, a Partner with Alston & Bird LLP in New York, looking back at RBC v. Jervis (aka Rural/Metro) on its first anniversary. The Delaware Supreme Court’s Rural/Metro decision affirmed the Chancery Court’s decision holding RBC Capital Markets liable for aiding & abetting breaches of the fiduciary duty of care by Rural/Metro’s directors – and was […]
Webcast: “Rural/Metro – Aiding & Abetting Breach Claims Now” [March 11, 2016]
Tune in on Monday for the webcast – “Rural/Metro: Aiding & Abetting Breach Claims Now” – to hear Potter Anderon’s Brad Davey, Alston & Bird’s Kevin Miller and Richard Layton’s Blake Rohrbacher discuss what you should now be considering as you prepare deals after the latest Rural/Metro decision from the Delaware Supreme Court. Please print […]
Blockholder Director Hazards: A Potential Concern for Private Equity & Large Stockholders [March 10, 2015]
Here’s news from Kevin Miller of Alston & Bird: As some of you will recall, in OTK v Friedman (aka Morgans Hotel), C.A. No. 8447-VCL (Del. Ch. April 17, 2013)(Letter Ruling on Motion to Compel), Delaware Vice Chancellor Laster held that where a stockholder has the right to appoint a person to the board of […]
Webcast: “Rural/Metro & the Role of Financial Advisors” [February 4, 2015]
Tune in tomorrow for the webcast – “Rural/Metro & the Role of Financial Advisors” – to hear Steve Haas of Hunton & Williams, Kevin Miller of Alston & Bird and Blake Rohrbacher of Richards Layton discuss a whole host of topics, including the viability of claims for aiding and abetting breaches of fiduciary duty in […]
Tulane: Rural Metro’s a Hot Topic [April 2, 2014]
Ahead of our webcast today – “Rural/Metro and Claims for Aiding & Abetting Breaches of Fiduciary Duty” – I thought it would be good to report about how the case was discussed at last week’s M&A conference at Tulane. Here is a WSJ article with a recap: A recent court ruling that put M&A bankers […]
Webcast: “Rural/Metro and Claims for Aiding & Abetting Breaches of Fiduciary Duty” [April 1, 2014]
Tune in tomorrow for the webcast – “Rural/Metro and Claims for Aiding & Abetting Breaches of Fiduciary Duty” – to hear Kevin Miller of Alston & Bird; Brad Davey of Potter Anderson; Stephen Bigler of Richards Layton, Stephen Kotran of Sullivan & Cromwell and Bill Lafferty of Morris Nichols as they discuss a case expected […]
New Appraisal Decision Rejects Attempt to Stop Statutory Interest Rate from Accruing [February 21, 2014]
Here’s news from Kevin Miller of Alston & Bird: Recently, a number of investors as well as certain hedge funds have adopted a strategy of seeking an appraisal of the fair value of their shares in a target corporation acquired via merger merely to earn the currently very attractive statutory rate of interest on the […]
Webcast: “Growing Controversies Over Company Valuations Under Delaware Law” [March 5, 2013]
Tune in tomorrow for the webcast – “Growing Controversies Over Company Valuations Under Delaware Law” – to hear Kevin Miller of Alston & Bird, Jennifer Muller of Houlihan Lokey and Kevin Shannon of Potter Anderson discuss whether – despite case law to the contrary – fair value (in appraisal) and fair price (under entire fairness) […]
What is the Financial Advisor’s Role in a Deal? The Dragon Systems Situation [July 18, 2012]
Here are some interesting thoughts from Kevin Miller of Alston & Bird: Recently, the NY Times published a provocative article regarding pending litigation against Goldman Sachs arising out of GS’s role as financial advisor to Dragon Systems in connection with the sale of Dragon Systems to Lernout & Hauspie in a stock for stock transaction […]
Common Misunderstandings Regarding Fairness Opinions [May 8, 2012]
Here are some interesting thoughts from Kevin Miller of Alston & Bird related to this blog about a recent WSJ article entitled “Shortcomings of Valuation Opinion in Great Wolf Buyout”: 1. Myth: Fairness Opinions are Valuations Reality: The financial analyses underlying fairness opinions are not valuations or appraisals, they are merely financial analyses performed by […]
Financial Advisor Disclosure: Delaware Chancery Refuses to Enjoin Amgen’s Acquisition of Micromet [March 6, 2012]
Here’s some analysis by Kevin Miller of Alston & Bird: In a recent decision – In re Micromet – Delaware Vice Chancellor Parsons denied plaintiffs’ motion to preliminarily enjoin Amgen’s acquisition of Micromet by means of a two-step transaction – an all cash tender offer to be followed by a back end merger at a […]
Plenty of Warnings As El Paso Deal Squeaks By in Delaware [March 5, 2012]
Last week, Kevin Miller blogged about the hearing transcript in the In re El Paso S’holder Litig. case that wound up being decided the next day. This WSJ commentary by Ronald Barush analyzes Chancellor Strine’s opinion: Wednesday, Chancellor Leo Strine, who heads the Delaware Court of Chancery, all but threw up on parts of the […]
Delaware Continues to Focus on Valuation Issues: In re El Paso S’holder Litig. [February 28, 2012]
Kevin Miller of Alston & Bird provides this analysis: Although the primary focus of the press coverage regarding the recent In re El Paso S’holder Litig. case in the Delaware Court of Chancery has been on alleged management and financial advisor conflicts, there is a lot of discussion in the hearing transcript regarding valuation issues: […]
Webcast: “The Dynamics of Disclosure Claims” [February 15, 2012]
Tune in tomorrow for the webcast – “The Dynamics of Disclosure Claims” – to hear Kevin Miller of Alston & Bird, Blake Rohrbacher of Richards Layton and Steven Haas of Hunton & Williams discuss how the dynamics of disclosure claims – including the procedural posture and risk/reward analysis of a potential appeal by defendants – […]
Lehman Decision: Fairness Opinion Providers Can Take Some Comfort [August 2, 2011]
Kevin Miller of Alston & Bird provides this analysis: While not involving the issuance of a fairness opinion, fairness opinion providers can take some comfort from portions of a recent decision – In re Lehman Brothers Secs. and ERISA Litig. (SDNY July 27, 2011) – of the Federal District Court for the Southern District Court […]
In re: Atheros Communications: Disclosure Relating to Financial Advisor Fees and Analyses [March 8, 2011]
From Kevin Miller of Alston & Bird, a member of our Advisory Board: On March 4th, the Delaware Chancery Court (VC Noble) issued an injunction prohibiting Atheros from holding a meeting of its stockholders to vote upon a merger agreement with Qualcomm pursuant to which Atheros would be acquired by Qualcomm for $3.1 billion in […]
Webcast: “Recent Developments Regarding Fairness Opinions, Valuation Analyses and Related Topics” [February 7, 2011]
Tune in tomorrow for the DealLawyers.com webcast – “Recent Developments Regarding Fairness Opinions, Valuation Analyses and Related Topics” – to hear Kevin Miller of Alston & Bird, Steve Kotran of Sullivan & Cromwell, Stuart Rogers of Credit Suisse Securities and Jennifer Muller of Houlihan Lokey discuss the latest developments and trends of fairness opinions and […]
VC Laster Blesses Top-Up Option in Carlisle/Hawk Merger Agreement [November 17, 2010]
From Kevin Miller of Alston & Bird, a member of our Advisory Board: At last Thursday’s M&A session of the PLI Securities Law Institute, VC Laster gave a shout out to the top-up option provision in the merger agreement pursuant to which Carlisle Companies is acquiring Hawk Corp. saying it had everything a properly drafted […]
Preliminary Injunction Hearing: Focuses on Negotiations with a Single Private Equity Bidder [November 12, 2010]
From Kevin Miller of Alston & Bird, a member of our Advisory Board: Here is the transcript of a September 3rd oral argument on plaintiffs’ motion for a preliminary injunction in Forgo v. Health Grades. Plaintiffs sought to enjoin the pending acquisition of Health Grades by affiliates of Vestar Capital, a private equity firm with […]
DOL Proposal Would Define ‘Fiduciaries’ of Employee Benefit Plans to Include Providers of Fairness Opinions to Plans [October 27, 2010]
From Kevin Miller of Alston & Bird, a member of our Advisory Board: Last Thursday, the Department of Labor proposed regulations that would, if adopted, significantly expand the circumstances in which a person will be treated as a fiduciary under ERISA by reason of providing investment advice for a fee to an employee benefit plan. […]
Disclosure of Projections: Delaware Chancery Court Invites Appeal to Resolve Whether Free Cash Flows are Required to be Disclosed [August 26, 2010]
From Kevin Miller of Alston & Bird: In this transcript of a hearing on a motion to expedite discovery and the scheduling of a preliminary injunction hearing in Steamfitters v. , Delaware Chancellor Chandler concluded that, based on the parties’ briefings and arguments, he did not believe that the disclosure of the target’s free cash […]
Delaware Chancery Refuses to Apply Choice of Law Provision in Investment Bank’s Engagement Letter [August 23, 2010]
From Kevin Miller of Alston & Bird: In Shandler v. DLJ Merchant Banking, a recent decision of the Delaware Court of Chancery, the Chancery Court refused to apply the choice of law provision in an investment bank’s engagement letter to a claim alleging that the investment bank had aided and abetted a breach of fiduciary […]
Use of Control Premium in Delaware Appraisal Action [June 14, 2010]
From Kevin Miller of Alston & Bird: In a recent decision – Berger v. Pubco Corp. – Delaware Chancellor Chandler held that the application of a control premium in an appraisal action under Delaware law is not appropriate where the appraisers did not rely upon a comparable company valuation methodology. Here is a notable quote […]
More Thoughts on Maric Capital [May 19, 2010]
From Kevin Miller of Alston & Bird, here are some follow-up thoughts to this blog posted earlier this week regarding the recent Maric Capital decision in the Delaware Court of Chancery: 1. This is likely to be a controversial decision as the Maric court’s holding (consistent with the court’s holding in Netsmart) that cash flow […]
Delaware Addresses Competing Valuations in Assessing Entire Fairness and Appraisal Claims [February 8, 2010]
Here’s some commentary from Kevin Miller of Alston & Bird: A recent Delaware Chancery Court decision – In Re Sunbelt Beverage Corporation Shareholder Litigation – should be of significant interest to investment bankers as well as lawyers because of its detailed analysis of competing discounted cash flow and other valuation analyses as well as comments […]
The Latest on Fairness Opinions [February 2, 2010]
Tune in tomorrow for the webcast – “The Latest on Fairness Opinions” – to hear Kevin Miller of Alston & Bird, Steve Kotran of Sullivan & Cromwell, Stuart Rogers of Credit Suisse Securities and Chris Croft of Houlihan Lokey explore the latest trends and developments in fairness opinion practices. You may want to print these […]
Relative Fairness Opinions and the ACS/Xerox Merger [December 17, 2009]
Here are some further thoughts from Kevin Miller of Alston & Bird on fairness opinions (some prior thoughts are here): There continues be confusion regarding whether Evercore rendered a relative fairness opinion in the ACS/Xerox transaction. Recent articles in a few publications continue to suggest that it did. I don’t think so. While the Evercore […]
The ACS/Xerox Merger: The Relative Fairness and ConEd Issues [October 19, 2009]
Following up on Steven Haas’ blog last week, Kevin Miller of Alston & Bird gives these further thoughts on the transaction: 1. The Relative Fairness Issue – The NY Times’ DealProfessor has suggested that, in order to address the relative fairness issues raised in Chancellor Chandler’s decision in TCI, the special committee of the board […]
Delaware Cases on Projections: Conflicted and Conflicting [August 4, 2009]
– by John Jenkins, Calfee Halter & Griswold Kevin Miller’s recent blog on Berger v. Pubco touched on a recurring topic of discussion in the Delaware courts – the extent to which projections need to be disclosed to shareholders in connection with a merger. Delaware courts have spent a lot of time on this issue, […]
More on Berger v. Pubco: Disclosure in Notices of Appraisal Rights and Merger Proxies [July 20, 2009]
More on Berger v. Pubco: Disclosure in Notices of Appraisal Rights and Merger Proxies From Kevin Miller of Alston & Bird: Most commentators on Berger v. Pubco are focusing on the Delaware Supreme Court’s holding granting quasi appraisal rights as the appropriate remedy for faulty disclosure in connection with a short-form merger. “[T]he exclusive remedy […]
Delaware Court Allows Expedited Proceedings to Seek Injunctive Relief Based on Revlon Claims [July 1, 2009]
Kevin Miller of Alston & Bird notes: In this order on Friday, Delaware Chancellor Chandler granted plaintiff’s motion for expedited proceedings to seek injunctive relief to address a board’s alleged failure to fulfill its Revlon duties. Highlighting the significance that the procedural posture of a case can have, the Court noted that the Delaware Supreme […]
HLSP Holdings v. Fortune Management: ConEd Issues Are Alive and Well in Delaware [April 30, 2009]
Here is analysis of a recent decision from Kevin Miller of Alston & Bird: In HLSP Holdings v. Fortune Management, the Delaware Superior Court recently granted a motion for summary judgment by the defendant, Fortune Management, against a claim by plaintiff, HLSP Holdings, based on Fortune’s alleged failure to fulfill its obligations under the acquisition […]
More on Roche and Genentech’s Tangled Web [March 4, 2009]
– by Kevin Miller, Alston & Bird As a follow-up to the excellent piece by John Jenkins, I thought the following point worth noting: Under Pure Resources, any shareholder of Genentech should be able to get Roche’s tender offer enjoined until Genentech publicly discloses a summary of the financial analyses of Goldman Sachs underlying Goldman […]
Wrigley Case: Illinois Court Dismisses Shareholder Claims Against Financial Advisor [January 14, 2009]
– by Kevin Miller, Alston & Bird In a decision entered yesterday – in Young v. Goldman Sachs – the Circuit Court of Cook County, Illinois County Department, Chancery Division, applying New York law, dismissed a putative class action brought by a shareholder of Wm Wrigley Jr. Company against Goldman Sachs & Co. alleging that […]
From Kevin Miller of Alston & Bird: In this decision by Vice Chancellor Lamb, the Delaware Chancery Court denied a motion for preliminary injunction in an oral ruling delivered shortly after the completion of oral argument on the motion. He concluded his ruling by stating that the fact that information is included in materials provided […]
Rejecting Merger Proposal/Approving Reclassification: Delaware Chancery Court Dismisses Breach Claims [February 27, 2008]
From Kevin Miller of Alston & Bird: A few weeks ago – in Gantler v. Stephens – Vice Chancellor Parsons granted defendants’ motion to dismiss claims alleging that certain directors and officers of First Niles Financial breached their fiduciary duties by: – sabotaging the due diligence process in connection with a board authorized sales process; […]
An Important New Fairness Opinion Decision [February 25, 2008]
Last week, the US Court of Appeals for the Seventh Circuit – in The HA2003 Liquidating Trust v. Credit Suisse Securities – affirmed the decision of US District Court for the Northern District of Illinois absolving Credit Suisse of liability relating to the rendering of a fairness opinion. Kevin Miller of Alston & Bird notes […]
Class Action Lawsuit Filed re: Private Equity Bid Rigging [February 20, 2008]
Kevin Miller of Alston & Bird notes: Last Thursday, a class action complaint was filed in the US District Court for the District of Massachusetts against 16 private equity funds. The complaint alleges violations of the Sherman Act and the Clayton Act – in particular, a conspiracy amongst the defendant private equity firms to: – […]
The “Forthright Negotiator Principle” [February 12, 2008]
From Kevin Miller of Alston & Bird: For those unfamiliar with the “Forthright Negotiator Principle” referred to in the URI decision, I came across the following in re-reading the In re: IBP, Inc. Shareholders Litigation decision: “The record therefore reveals that Tyson’s negotiators knew that Hagen believe that Schedule 5.11 covered the DFG items discussed […]
A New York (and Bankruptcy) Market MAC Case: Solutia Seeks Specific Performance or $2.25 billion [February 11, 2008]
With our “MAC Clauses: All the Rage” webcast coming up next week, Kevin Miller of Alston & Bird notes a new case: Recently we have seen a number of cases in which buyers have alleged that they are not obligated to close an M&A transaction because of a MAC or MAE. A complaint filed last […]
Guttman v. McGinnis (or Netsmart Through the Looking Glass) [February 4, 2008]
From Kevin Miller of Alston & Bird: A couple of weeks ago, Vice Chancellor Lamb of the Delaware Chancery Court ruled on a Motion to Schedule a Preliminary Injunction Hearing and for Expedited Discovery. Here is a copy of the ruling. Background: Respironics engaged in a sale process last fall following which it agreed to […]
Financial Advisor Disclosure: Globis Partners v. Plumtree [January 30, 2008]
From Kevin Miller of Alston & Bird: In a recent Delaware Chancery Court decision – Globis Partners v. Plumtree – the court granted defendants’ motion to dismiss claims alleging, among other things, that Plumtree Software’s board had breached its duty of disclosure by among other things, omitting information from the merger proxy relating to the […]
More on URI’s Request for Specific Performance [December 6, 2007]
Back on Monday, I blogged some analysis from Kevin Miller of Alston & Bird about why deference is not generally appropriate when granting extraordinary permanent relief such as specific performance. Then, in his “M&A Law Prof Blog,” Professor Steven Davidoff posted six reasons why he doesn’t necessarily agree with Kevin’s analysis (the NY Times’ DealBook […]
The FASB/IASB Convergence Begins: New FAS 141(R) [December 5, 2007]
On Tuesday, the FASB issued FAS 141(R), Business Combinations. Here is an excerpt from the FASB’s press release: “The new standards represent the completion of the FASB’s first major joint project with the International Accounting Standards Board (IASB), as well as a significant convergence milestone,” states FASB member G. Michael Crooch. “These standards and the […]
URI’s Request for Specific Performance: The Elephant in the Room [December 4, 2007]
From Kevin Miller of Alston & Bird: With the recent spate of busted buyouts, the legal and financial community – as well as the press – have devoted significant time to dissecting the provisions of the relevant merger agreements and other transaction documents. Unfortunately, a critical issue has been overlooked. While the Delaware courts may […]
Rule 2290’s Effective Date? December 8th [November 8, 2007]
A few weeks ago, I blogged about the SEC finally blessed FINRA’s (formerly NASD) Rule 2290 on an accelerated basis. Today, FINRA issued its Notice to Members regarding Rule 2290, which states that the effective date of the rule change will be December 8th (ie. 30 days following the publication of the notice). Join us […]
Deconstructing the Sallie Mae MAC [October 24, 2007]
With several deals unwinding due to the credit crunch, some new law looks inevitable regarding “Materal Adverse Effect” closing condition. One case likely to go to trial in the Delaware Chancery Court relates to the acquisition of Sallie Mae (“SLM”) by a buyout consortium led by JC Flowers. From Kevin Miller of Alston & Bird: […]
More on FINRA’s Fairness Opinion Rule [October 23, 2007]
Quite a few members have sent me a link to the M&A Law Prof Blog for a more analytical take on FINRA’s new proposed Rule 2290 regarding fairness opinions – here is one excerpt: “the SEC approved the rule on an expedited basis. This is a bit odd — this rule has been pending now […]
Summary: Comments Submitted on Proposed NASD Fairness Opinion Rule [August 15, 2006]
Thanks to Kevin Miller of Alston & Bird, below is a summary of the comments submitted to the SEC on proposed NASD Rule 2290 regarding fairness opinions (Release No. 34-53598, April 4, 2006): 1. Association of the Bar of the City of New York – 2290(b)(3) – strongly believes that it is ill advised (and […]
Damages for Lost Merger Premium Under New York Law [July 28, 2006]
Kevin Miller of Alston & Bird notes: As many of you probably are aware, the Court of Appeals for the Second Circuit applying New York law held last year that under the “no third-party beneficiary” provision typically found in most public company merger agreements, the target company could not recover lost merger premium as damages […]
The Role of Investment Bankers [July 11, 2006]
The third installment of our M&A Boot Camp for this summer is now available: “The Role of Investment Bankers.” Join Kevin Miller of Alston & Bird, who is a former in-house lawyer for an i-bank, for an entertaining session that teaches the basics of what you need to know about what investment bankers do – […]
Get Ready for the 2006 M&A Boot Camp! [May 4, 2006]
We have posted our schedule for this summer’s “M&A Boot Camp,” which is free for any member of DealLawyers.com. It includes: – Conducting Due Diligence: Through the Eyes of the Associate (Monday, June 19th) Deborah Bentley Herzog and Mike Woodard of McGuire Woods will start us off by teaching us the basics of what you […]
SEC Comment Process: Fairness Opinion Disclosure [April 27, 2006]
With SEC comment and response letters now available on the SEC’s website, Kevin Miller of Alston & Bird sent over the following example of the level of detail that you sometimes see in SEC comments regarding fairness opinions. In a note to Comment 22 below, Kevin highlights an issue that still seems to catch many […]
Comments Submitted on the SEC’s Best Price Proposal [March 31, 2006]
With the deadline now a month behind us, only ten comment letters have been submitted on the SEC’s best price rule proposal. Kevin Miller of Alston & Bird notes that an overarching concern reflected in many of the comments is that the approval by an appropriate committee (as defined somewhat differently in each of the […]
Allocating Risk in M&A Contracts [February 24, 2006]
From Kevin Miller of Alston & Bird: Here is a nice little contract case – Abry Partners v. F&W Acquisition – for fans of Vice Chancellor Strine’s opinions. It carefully lays out the interrelationship between representations, closing conditions and indemnification and demonstrates how careful drafting can advantage one party at the expense of the other […]
More on the Tele-communications Court Decision [January 5, 2006]
As I blogged yesterday, a recent Delaware Chancery Court decision – In re: Tele-communications, Inc. Shareholders Litigation, – has raised significant concerns regarding whether contingent fees for advising a special committee are appropriate – and the need for a relative fairness opinion when the transaction consideration is allocated amongst classes of capital stock. Below is […]
NYSE Takes a Position in Sovereign Mess [November 28, 2005]
Last Tuesday, it was reported that a proposed – and controversial – transaction by Sovereign Bancorp has been amended so that the NYSE would allow it to proceed without a shareholder vote. Some of Sovereign’s largest shareholders had protested the lack of a shareholder vote (and I had criticized some of Sovereign’s other governance practices […]
The FTC and Gun-Jumping [November 22, 2005]
In a recent speech, the FTC’s General Counsel, William Blumenthal, provided his perspective on certain gun jumping issues. While reiterating that merging firms are separate entities and may not engage in collective actions that adversely affect competition, Blumenthal expressed concern “that we may have been too successful [in educating the public about violations and discouraging […]
2nd Circuit: Former Target Stockholder Can’t Bring Action for Lost Merger Premium [November 1, 2005]
Some of you will recall the 2004 decision in Consolidated Edison v. Northeast Utilities by the US District Court for the SDNY holding that former shareholders of the target could bring an action for a lost merger premium as a result of the buyer’s wrongful repudiation of the merger agreement. Because such claim was vested […]
Mulling the Pros and Cons of Stapled Financing [October 25, 2005]
Some thoughts from Kevin Miller of Alston & Bird: A recent Bloomberg.com article highlighted some of the pros – as well as some cons – of stapled financing, but could have paid greater attention to the following points: In the “Toys ‘R Us” decision, Vice Chancellor Strine – after criticizing the decision of the Toy’s […]