Tune in tomorrow for the webcast – “Retaining Key Employees in a Deal” – to hear Morgan Lewis’ Jeanie Cogill, Hunton Andrews Kurth’s Tony Eppert, & Proskauer’s Josh Miller discuss the latest developments on compensation strategies to retain key employees in M&A transactions.

– John Jenkins

This July-August issue of the Deal Lawyers print newsletter was just posted – & also mailed – and includes articles on (try a “Half-Price for Rest of ‘18” no-risk trial):

– Finders & Unregistered Broker-Dealers
– Governance Perils Involved in Financing Transactions by Emerging Companies
– Impact of the European GDPR on M&A

Remember that – as a “thank you” to those that subscribe to both DealLawyers.com & our Deal Lawyers print newsletter – we are making all issues of the Deal Lawyers print newsletter available online for the first time. There is a big blue tab called “Back Issues” near the top of DealLawyers.com – 2nd from the end of the row of tabs. This tab leads to all of our issues, including the most recent one.

And a bonus is that even if only one person in your firm is a subscriber to the Deal Lawyers print newsletter, anyone who has access to DealLawyers.com will be able to gain access to the Deal Lawyers print newsletter. For example, if your firm has a firmwide license to DealLawyers.com – and only one person subscribes to the print newsletter – everybody in your firm will be able to access the online issues of the print newsletter. That is real value. Here are FAQs about the Deal Lawyers print newsletter including how to access the issues online.

– John Jenkins

Litigation challenging deals has long been a fact of life, but this recent blog from Kevin LaCroix says the cost of that litigation has soared in recent years:

As reported in a July 10, 2018 press release from Chubb, the average total cost associated with a settled merger-objection lawsuit increased 63% in the four year period between 2012 and 2016. The total cost includes attorneys’ fees and cash settlement amounts. In 2012, this figure was $2.8 million. By 2016, the figure had grown to $4.5 million. The average amount for the four year period from 2012 to 2016 was $3.6 million. Of these costs, only about 39% represented amounts going to shareholders. 61% of these amounts went to plaintiffs’ and defense attorneys in the form of fees and expenses.

For merger objection lawsuits that were dismissed rather than settled, the percentage increases over the four year period are even greater. In the four year period between 2012 and 2016, the average total cost increased 162%, from $880,000 in 2012 to $2.3 million in 2016. The average total cost associated with dismissed merger objection lawsuits during the period 2012 to 2016 was about $912,000.

Since the data ends in 2016, it doesn’t fully reflect the impact of recent Delaware decisions like Trulia & Corwin, which have led at least one prominent member of the Delaware plaintiffs’ bar to throw in the towel. But the net effect of Delaware’s actions hasn’t been to lower the volume of merger objection litigation – it’s just migrated to friendlier jurisdictions.  Kevin notes that federal courts are becoming a particular favorite among the plaintiffs’ bar, with merger cases accounting for more than 40% of securities class action filings during 2018.

– John Jenkins

Earlier this week, in Morrison v. Berry (Del. 7/18), the Delaware Supreme Court reversed an earlier Chancery Court decision & held that “partial and elliptical” disclosures provided to shareholders were insufficient to insulate the seller’s board from fiduciary duty claims under the Corwin doctrine.

The challenged disclosures related to the relationship between the company’s founder & the PE firm that ultimately acquired the company, together with other matters relating to his role and actions in the board’s sale process. The Court concluded that the plaintiffs had raised significant questions concerning whether the disclosures relating to these matters were misleading, and overruled the Chancery Court’s decision to dismiss their complaint.

This Morris James blog says the decision provides insights into Corwin’s “fully-informed” shareholder approval requirement:

Corwin holds that approval of a transaction by a fully-informed, uncoerced majority of the disinterested stockholders invokes the deferential business judgment standard of review for a post-closing damages action, making the transaction almost certainly immune from further judicial scrutiny.

This is an important decision for its discussion of the “informed” approval prerequisite to a Corwin defense. This aspect of Corwin turns on thoroughly-developed standards under Delaware law regarding what is or is not material to the stockholders’ decision-making. In that way, the decision is not novel. Yet, because a disclosure violation may prevent what would otherwise be an early dismissal of a breach of fiduciary duty action against directors for damages, the issue is of heightened importance post-Corwin.

In the Court’s own words, this case “offers a cautionary reminder to directors and the attorneys who help them craft their disclosures: ‘partial and elliptical disclosures’ cannot facilitate the protection of the business judgment rule under the Corwin doctrine.” Here, the material undisclosed facts concerned a founder’s early dealings with the private equity buyer, pressure on the board, and the degree that this influence may have impacted the sale process structure.

The blog also highlights the role that a pre-suit books & records demand played in bolstering the plaintiffs’ arguments – and points out that this is “another area of increased importance post-Corwin, given the unavailability of a Corwin defense in that setting and the ability to obtain documents that might help one plead around a later Corwin defense.”

– John Jenkins

Cases like In re Dow Chemical stand for the proposition that Delaware courts generally apply the business judgment rule to a board’s decision to acquire another entity. But this Hunton Andrews Kurth memo says that the Chancery Court’s recent decisions in the Oracle & Tesla cases are a reminder to dealmakers that this isn’t always the case. This excerpt points out that controlling shareholder conflicts of interest may muddy the waters:

In most cases, like Dow Chemical, the acquiror’s board of directors will be protected by the business judgment rule, which is a presumption that the directors acted on an informed basis, in good faith, and in the honest belief that the action taken was in the best interests of the company. Dow Chemical also makes clear that the business judgment rule should protect “buy-side” decisions regardless of whether they relate to a relatively small acquisition or a “ ‘bet the company’ transformational transaction”—“Delaware law simply does not support [a] distinction” based on the size of an acquisition.

In contrast, Oracle and Tesla reveal vulnerabilities in the business judgment rule armor. In particular, where a court finds that the board lacks sufficient independence from a conflict of interest, demand may be excused. This is especially true where a dominant executive personality exercises control over the board’s decision-making process, and that process leads the company to engage in a transaction that directly benefits that dominant personality. Delaware courts have also increased their scrutiny in recent years of overlapping business relationships in the technology industry and in venture capital circles (see, e.g., Sandys v. Pincus).

The memo goes on to provide practical suggestions that a buyer’s directors should take to satisfy their fiduciary obligations, including identifying & addressing potential conflicts involving the buyer’s directors & officers and the target.

– John Jenkins

We’ve previously blogged about advice from PwC on preparing carve-out financial statements in connection with spin-offs or other divestitures.  Now, they’re back with this memo offering more advice on a specific component of those financials – the tax provision.  As with just about everything else involved with carve-out financials, the process of determining the tax provision is complicated. Here’s an excerpt discussing the SEC’s preferred approach:

ASC 740-10-30-27 requires that the current and deferred tax expense for a group that files a consolidated return be allocated among the group members when those members issue separate financial statements. While ASC 740 does not require the use of any particular allocation method, it does require the method to be systematic, rational, and consistent with the broad principles of ASC 740. It goes on to indicate that the separate return method meets those criteria. In addition, the SEC staff has stated that it believes the separate return method is the preferred method.

Under the separate return method, the carve-out entity calculates its tax provision as if it were filing its own separate tax return based on the pre-tax accounts included in the carve-out entity. This can result in perceived inconsistencies between the tax provision of the carve-out entity and the tax provision of the consolidated group. This is acceptable, as ASC 740 acknowledges that if the separate return method is used, the sum of the amounts allocated to individual members of the group may not equal the consolidated amount.

The memo notes that the separate return method isn’t mandatory, and that another method may be acceptable as long as it’s systematic, rational, and consistent with the broad principles of ASC 740. The memo goes on to review one of those alternatives – the separate company method as modified for benefit or loss – and discusses a number of additional issues that need to be addressed in determining the appropriate tax provision & financial statement disclosure.

– John Jenkins

SPACs have increased in popularity among private equity funds in recent years, with major PE sponsors raising SPACs or selling portfolio companies to them. As SPACs have gained credibility among PE sponsors, they’ve become a more viable option when considering a public market exit strategy for PE fund portfolio companies.

This Weil blog discusses the SPAC alternative and provides a chart setting forth the similarities & differences between taking a company public through a traditional IPO vs. through a SPAC.  This excerpt summarizes some of the pros & cons of the two alternatives:

There can be significant advantages to structuring a public market exit for a portfolio company through a SPAC rather than a traditional IPO, including being able to customize the terms of the exit so that the selling sponsor can share in the founder shares and warrants received by the SPAC sponsor in connection with the formation of the SPAC and structuring the sale as an all cash deal or some combination of cash and stock. On the flip side, there is market risk in closing the SPAC transaction due to the redemption rights of the SPAC stockholders (although there is also market risk with an IPO obviously).

– John Jenkins

Tech, media & telecom companies typically harvest vast amounts of online customer data. This Debevoise memo provides guidance on developing a cybersecurity & data privacy due diligence checklist for deals involving targets in these sectors. Here’s the intro:

Companies in the technology, media and telecommunications (“TMT”) sectors typically are online-dependent and collect a great detail of valuable information from and about their customers. For these and other reasons, TMT companies are among the most attractive targets for all sorts of cyber breaches, including denial of service attacks, viruses, ransomware and other forms of malware. When considering the acquisition of a business in the TMT sector, diligence requires paying close attention to these cybersecurity, data protection and privacy issues.

Acquirers should explore four key areas, using tools including document review, interviews with the target’s personnel, and questionnaires:
– When and to what extent the target collects, stores, processes and transfers personal information
– The target’s information security resources, practices and procedures
– The target’s data security and privacy compliance history
– Where applicable, particular sector-specific requirements

The memo provides guidance about the specific diligence issues that should be addressed in each of these key areas.

– John Jenkins

This Perkins Coie memo lays out some of the highlights from the ABA Antitrust Law Section’s spring meeting.  One of the topics addressed was the ever-popular issue of defining the appropriate “market” in an any merger analysis. This excerpt discusses the increasing emphasis on “price discrimination markets” in that analysis – and the resulting importance of customer support for the deal:

Recent market definition cases have focused on “price discrimination markets,” which consist of a set of customers who for reasons other than differences in vendor cost, are charged prices different from those charged typical customers. In these cases, the merger parties were vendors to large “national footprint” customers (like hotel and restaurant chains) that purchase goods and services on a centralized basis. Such customers typically prefer dealing with a single vendor who is able to service all of the customer’s units. Because sales to such customers require delivery and service on a national scale, few vendors may be able to compete. Ironically, because the alleged “victims” in such cases are typically power buyers, they already enjoy prices lower than the vendor’s typical customers.

The panelists observed that focusing on price discrimination obscures the real question: whether there are sets of customers, who, because of their purchasing requirements, have fewer vendor options than other customers. The best evidence will be found in the customer’s own purchasing records, which presumably identify the firms that have submitted bids. Second best evidence may consist of the competing vendors’ win/loss bid records. Do they suggest the merging companies are among a very small number of vendors for such national contracts?

In these cases, the extent to which customers complain about a deal plays a big role in the government’s decision about whether to challenge it.  Customers may complain on their own initiative or in response to questions from governmental investigators. That reality underscores how essential it is that parties planning a merger “develop a plan for the care and feeding of the parties’ customers.” A big part of that plan is post-announcement outreach out to key customers in order to explain the reasons for the deal and the benefits it will provide customers.

– John Jenkins

This Weil blog discusses a widely used technique for avoiding the application of widely-used “workaround” for addressing non-assignment clauses in contracts that are part of an asset purchase – and says that recent case law may require the parties to give some more thought to whether it works.

The workaround is undoubtedly familiar to many readers – it involves language in the asset purchase agreement providing that regardless of any other provision, no contract will be assigned if such assignment would be ineffective or breach the contract in question. That language is accompanied by a covenant to the effect that the buyer will be entitled to the benefits and subject to the economic burdens of the contract & that the seller will hold any payments it receives in trust for the buyer & act as its agent until any required consent is received.

But does this work? The blog discusses a recent English case giving a qualified “yes” answer to that question, but also notes that the clause may not work as intended. The problem is that anti-assignment workaround provisions only work because they prevent an assignment of the contract from occurring – and that’s not close to duplicating the effect of an actual assignment:

Anti-assignment workarounds may be important backstops in situations where consents cannot be obtained and a risk assessment as to the likelihood of counterparty blowback is deemed low, but they are hardly a panacea. After all, the key to ensure that the workaround language actually works is to negate any actual assignment having been made to the extent an assignment would violate or be ineffective in the face of a specific anti-assignment clause.

And the workaround language then requires the seller to actually continue to be involved with and assist in delivering the benefits of the contract, with the buyer performing on behalf and as the agent of the seller, any required obligations. Awkward at best and, in some cases, truly problematic if the buyer actually requires any specific action by the seller and the seller is then out of business or has instituted bankruptcy proceedings and is still deemed to be the actual party to the contract.

The blog suggests that parties should place renewed focus on which contracts containing anti-assignment clauses truly can come off the required consent list, and what risks the buyer is assuming as a result of these contracts. In particular, consideration should be given to risks associated with the need for continued involvement of a seller that may have lost interest, or whose involvement may be difficult if not impossible to obtain.

– John Jenkins