In a recent speech, DOJ Antitrust Division chief Makan Delrahim outlined the DOJ’s plan to “modernize” the merger review process.  Picking up the pace of the review process is a big part of those modernization plans, with Delrahim pledging that – assuming parties “expeditiously cooperate and comply” during the process – the DOJ will aim to resolve most investigations within six months of filing.

That’s good news – but as this Wachtell Lipton memo points out, the FTC hasn’t signed on to the DOJ’s pledge:

This new framework notably would not apply to mergers reviewed by the FTC, which shares authority to investigate mergers with the Antitrust Division. Last month the FTC adopted a Model Timing Agreement that requires parties to agree not to close their transaction for 60 to 90 days following substantial compliance with a Second Request, and also contemplates extensive investigational hearings and other procedural requirements that could result in additional delay and expense for the parties.

The memo also notes that a senior FTC official recently issued guidance to the effect that “expedited review is the exception, not the norm” – particularly when it comes to approval of proposed remedies.

– John Jenkins

One of the great truisms of M&A law has been that “Delaware has never found a MAC.” Well, that’s no longer the case. Yesterday, for the first time, the Delaware Chancery Court held that deterioration in a seller’s business resulted in a “Material Adverse Effect” entitling the buyer to terminate its merger agreement.

In his 246-page opinion in Akorn v. Fresenius (Del. Ch.;10/18) – you didn’t seriously think Delaware could do something like this in less than 200 pages, did you? – Vice Chancellor Laster held that Fresenius had established that Akorn had experienced a Material Adverse Effect entitling Fresenius to back out of its 2017 merger agreement. As this excerpt from the opinion demonstrates, Fresenius won just about every way it could have:

First, Fresenius validly terminated the Merger Agreement because Akorn’s representations regarding its compliance with  regulatory requirements were not true and correct, and the magnitude of the inaccuracies would reasonably be expected to result in a Material Adverse Effect. Second, Fresenius validly terminated because Akorn materially breached its obligation to continue operating in the ordinary course of business between signing and closing. Third, Fresenius properly relied on the fact that Akorn has suffered a Material Adverse Effect as a basis for refusing to close.

That’s pretty much the ultimate MAC Trifecta – breach of a rep and a covenant & failure to satisfy a stand-alone MAC closing condition – but an appeal to the Delaware Supreme Court seems likely. That means that Chief Justice Strine, who authored the decidedly MAC-skeptical opinion in In re IBP Shareholders Litigation, (Del. Ch.; 6/01), would have an opportunity to weigh-in. We’re posting memos in our “MAC Clauses” Practice Area.

– John Jenkins

Lawyers are a pretty diverse group when it comes to their hobbies – I’ve known chess players, rare book collectors, gourmet cooks, singers, musicians & actors in addition to the usual collection of aging male & female jocks. But I’ve got to say, I’ve never come across a hobby that’s quite like the one that Fredrikson & Byron’s  Zach Olson enjoys.

What’s Zach do? He’s a professional wrestler! This Minn./St. Paul Business Journal article explains:

Zach Olson is a practicing attorney at Fredrikson & Byron during the day. At night, he’s practicing body slams as a wrestler. About 18 months ago he started training at The Academy: School of Professional Wrestling in Minneapolis, which is owned by former WWE wrestler Ken Anderson. Olson is now performing his best impersonations of Hulk Hogan and Andre the Giant at local wrestling matches.

Lots of people try their hand at wrestling, but how many are attorneys working on complex mergers and acquisitions? Not many. Olson recently worked for Bio-Techne Corp. on its acquisition of Exosome Diagnostics for $250 million.

Zach’s wrestling name is E. Sylvester Quinton IV – or “ESQ” – because of course it is!

ESQ bills himself as “the finest legal mind of his generation.”  Obviously, I can’t vouch for that, but he’s definitely become one of my personal heroes.  After all, what M&A lawyer hasn’t fantasized from time-to-time about suplexing the jerk sitting across the negotiating table?  This guy can actually do it!

– John Jenkins