Monthly Archives: February 2019

February 13, 2019

Disclosure-Only Settlements: NJ Chancery Endorses “Trulia-Lite”

Delaware’s hard line on disclosure-only settlements adopted in In re Trulia has been slow to catch on in other jurisdictions, with only a few adopting the standard so far. But now this Gibbons blog says that we may be able to add New Jersey to the list – sort of:

In the first published New Jersey state court opinion addressing the Trulia standard, the Chancery Division in Strougo v. Ocean Shore Holding Co. followed Trulia in holding that disclosure-only settlements are to be subject to “more exacting scrutiny,” but it is doubtful that the Chancery Division scrutinized the settlement to the degree envisioned by Chancellor Bouchard in Trulia.

According to the Chancery Division in Strougo, when a court is asked to approve a disclosure-only settlement, the court should determine whether the supplemental disclosure was “material,” meaning that “there is a substantial likelihood that a reasonable stockholder would consider it important in deciding how to vote.” Trulia requires more: it requires that the supplemental disclosure be “plainly material,” meaning that “it should not be a close call that the supplemental information is material.”

Consistent with its Trulia-lite approach, the Court said that supplemental disclosures about the deal’s fairness opinions were material enough to support a settlement – even though the Trulia court concluded that supplemental disclosures like these rarely add value for shareholders.

John Jenkins

February 12, 2019

Tomorrow’s Webcast: “Earnouts – Nuts & Bolts”

Tune in tomorrow for the webcast – “Earnouts: Nuts & Bolts” – to hear Pepper Hamilton’s Michael Friedman, Cravath’s Aaron Gruber, Fredrikson & Byron’s Sean Kearney and K&L Gates’ Jessica Pearlman – discuss the nuts & bolts of earnouts, and how to prevent this popular tool for bridging valuation gaps from becoming a post-closing albatross for your deal.

John Jenkins

February 11, 2019

League Tables: M&A Lawyers

Here’s MergerMarket’s “2018 Global M&A Roundup,” which includes the latest set of league tables listing the law firms that most often represent companies in deals, broken out on a global and regional basis. . .

John Jenkins

February 8, 2019

Activism: Proxy Fight Reimbursements Skyrocket in 2018

This Activist Insight article says that corporate reimbursements of expenses incurred by activists in proxy contests were way up last year. Here’s an excerpt:

The average reimbursement paid by companies to activist investors for proxy solicitation costs increased dramatically last year. U.S. companies disbursed an average $431,831 to cover activists’ campaigning costs in 2018, nearly three times the average in 2017, according to data compiled by Activist Insight Online.

The growing bill comes as the number of settlements has swelled; as many as 142 settlements were reached in 2018 versus 119 in the prior year. In part, 2018’s increase in costs could be explained by the fact that there were more reimbursements at mid- and large-cap companies, which totaled $10.4 million in 2018 compared to $1.5 million in 2017.

Most reimbursements involve small cap companies, but the article speculates that more reimbursements by mid and large-cap companies may account for the spike. Longer campaigns may also be a factor, with campaigns taking an average of 82 days to reach a settlement in 2018, compared with 79 days in 2017. The article also says that the increased reimbursement may reflect more advance preparation by small cap activists – including retaining counsel before launching a campaign.

The article reviews notable large-cap campaigns where activists obtained reimbursements, and addresses how institutional investors may react to reimbursement requests.

John Jenkins

February 7, 2019

More Xura: Does the BJR Apply to Officers?

Sure, you probably think I have it pretty good – but sitting around in my pajamas trying to come up with things for you to read with your first cup of coffee every morning isn’t as easy as you might think.  That’s why the Chancery Court’s Xura decision has been such a godsend for me!  I’ve already blogged twice about it, but it’s proving to be the gift that keeps on giving.

The latest take on Xura is in this recent blog from “The Conference Board” authored by several Cleary Gottlieb lawyers. The blog points out that Xura touches on one of corporate law’s great open questions – the extent to which the business judgment rule applies to officers. Here’s an excerpt:

In a footnote to the Xura opinion, Vice Chancellor Joseph R. Slights indicated his presumption that “the business judgment rule applies to Tartavull as CEO,” but acknowledged that “this point is not settled in our law and that there is a lively debate among members of the academy regarding whether corporate officers may avail themselves of business judgment rule protection.”

Vice Chancellor Slights cited a number of law review articles suggesting, alternatively, that (i) executive conduct should be protected by the business judgment rule and (ii) executive conduct should be evaluated under a negligence paradigm based on agency principles.

In advising non-director officers about conduct that could give rise to fiduciary claims, it is certainly prudent to routinely advise that they take steps – e.g., ensuring that they act with due care, not in a conflicted context and in good faith – to meet the conditions of the business judgment rule. However, practitioners should also keep in mind that there may be a question whether officers will be entitled to business judgment rule protection, at least in certain contexts.

The blog goes on to suggest that the BJR should apply to officers.  In particular, it points to the Delaware Supreme Court’s decision in Gantler v. Stephens (Del. Sup.; 1/09) as supporting application of the BJR to officers. In that case, the Court acknowledged that Section 102(b)(7) of the DGCL – which permits companies to include exculpatory provisions in their certificate of incorporation protecting directors against duty of care claims – doesn’t apply to corporate officers. But the Court also said that it would be “legislatively possible” for Section 102(b)(7) to be extended to officers.

The memo seizes on this latter statement and suggests that “if officers were not shielded from liability through the business judgment rule, and instead were subject to liability for ordinary negligence, it would make little sense to apply Section 102(b)(7) to exculpate them from liability for duty of care claims, which require a higher showing of gross negligence.”

John Jenkins

February 6, 2019

M&A Litigation: Where Does Delaware Go From Here?

The Corwin & MFW decisions and their progeny have dramatically changed the M&A litigation landscape in Delaware. But this case law is also relatively new and is likely to continue to evolve. This Wachtell memo discusses how plaintiffs have responded to these decisions, and provides some tips to transaction planners on how to best position themselves to obtain the protection of Corwin & MFW during a period of uncertainty as to their precise doctrinal contours. Here’s an excerpt:

In 2018, stockholder plaintiffs persistently attacked the sufficiency of disclosures, raised novel claims that stockholder approvals were “coerced,” and sought to expand the definition of controlling stockholder. The objective? To escape MFW and Corwin by de-legitimizing majority stockholder votes reflecting the considered judgment of large asset managers and institutional investors, often acting with the assistance of specialized proxy advisory firms. And in circumstances that some observers considered surprising, the courts allowed several such cases to survive motions to dismiss and proceed to the discovery stage—where they acquire vast settlement value.

Looking ahead, the question is whether Delaware’s market- and investor-facing doctrine will be given full effect despite this concerted opposition. Ultimately, the line of new Delaware case law is sufficiently rooted in today’s economic reality that it should withstand attack. Stockholders are now too sophisticated and too engaged to justify, as a matter of routine, the costs of litigating issues that the stockholders themselves have approved. Indeed, in ending the scourge of “disclosure-only” settlements, the Court of Chancery confirmed the often limited utility to stockholders of incremental disclosure.

Because the Corwin & MFW line of cases are of such recent vintage, the memo says that transaction planners should expect some unpredictability from the Delaware courts. The memo recommends that parties that want to realize the benefit of Corwin would be wise to “avoid cross-conditioning related transactions when commercially practical and draft disclosure documents with an eye toward negating the inevitable claims that material information was omitted.” In situations where parties seek to rely on MFW, they should “ensure the proper functioning of any special committee, from inception through negotiation and any final decision.”

John Jenkins

February 5, 2019

Antitrust: Your Downside May be Deeper Than You Think

Transaction planners usually view the DOJ or FTC scuttling their deal as the “worst case scenario” for the outcome of an antitrust merger investigation. But as bad as that downside is, this Crowell & Moring memo is a reminder that it can get much worse – parties could find themselves facing civil or even criminal antitrust charges. This excerpt addresses a recent example:

In recent years, for example, the U.S. Department of Justice’s Antitrust Division has brought several civil and criminal prosecutions for anticompetitive conduct uncovered during a merger investigation. The most recent example of such follow-on prosecutions surfaced over the last several weeks when the DOJ announced that it had reached settlements with a number of the nation’s largest broadcast television station groups in a civil information sharing investigation.

In these cases, the DOJ charged the seven defendants with participating in an unlawful information sharing scheme where they exchanged – either directly or through advertising sales firms – non-public, competitively sensitive information in order to prevent local and national advertisers from negotiating better terms, including lower prices.

Since filing these enforcement actions and the accompanying settlements, the DOJ has publicly confirmed that it uncovered this information sharing scheme during its investigation into a proposed merger involving two of the defendants – a merger that was eventually abandoned after the DOJ and Federal Communications Commission (FCC) raised concerns about the deal’s likely competitive effects. The DOJ has also indicated that it is actively investigating other companies and that this ongoing investigation will likely result in additional charges in the coming months.

The memo provides an overview of this DOJ investigation and outlines key steps that companies can take to mitigate the risk of civil or criminal antitrust charges arising out of a merger investigation.

John Jenkins

February 4, 2019

Small Cap M&A: The New Reg A Alternative to Form S-4

With the SEC’s recent expansion of Reg A eligibility to Exchange Act reporting companies, this Sheppard Mullin blog says public company buyers may want to give some thought to using Reg A to register shares issued in small transactions.  Here’s an excerpt:

Regulation A could prove particularly useful to reporting companies that seek to use stock consideration ($50 million or less in a Tier 2 offering) to acquire a target company with many equity holders in a transaction that would otherwise require registration on Form S-4 due to the unavailability of Rule 506 of Regulation D or another exemption from registration under the Securities Act.

The SEC Staff has confirmed in published guidance (Compliance & Disclosure Interpretation, Question 182.07) that Regulation A may be relied upon by an issuer for business combination transactions, such as a merger or acquisition.

Advantages to Reg A as compared to S-4 include the ability of non-S-3 eligible issuers to incorporate information by reference into a Form 1-A, reduced line-item disclosure requirements, a generally “lighter touch” from the Staff on review, the absence of a required 20 business day solicitation period if information is incorporated by reference, blue sky preemption & the absence of Section 11 liability.

Of course, there are some disadvantages too – including an overall $50 million cap on offering size, limits on the value of unlisted securities to be received by a non-accredited target company shareholder and an inability to forward-incorporate by reference. Still, for many buyers, Reg A may be an option worth exploring.

John Jenkins

February 1, 2019

Books & Records: Delaware Says Adhere to Formalities or Produce Your Email

Earlier this week, the Delaware Supreme Court held that a company’s disregard of corporate formalities may entitle a shareholder to access its emails and other electronic communications through a books & records demand.  This Proskauer blog says this decision provides yet another reason for companies to rely on traditional, formal methods of corporate recordkeeping:

The Court’s decision in KT4 Partners LLC v. Palantir Technologies, Inc. should cause corporations to focus on how they maintain key corporate records. The Court held that, “if a company observes traditional formalities, such as documenting its actions through board minutes, resolutions, and official letters, it will likely be able to satisfy a § 220 petitioner’s needs solely by producing those books and records. But if a company instead decides to conduct formal corporate business largely through informal electronic communications, it cannot use its own choice of medium to keep shareholders in the dark about the substantive information to which § 220 entitles them.”

Thus, the more formal and traditional the corporation’s recordkeeping, the better a defense the corporation might have to a § 220 request for emails and other electronic communications, which can be quite burdensome to produce.

In this case, Chief Justice Strine’s opinion concluded that Palantir had “a history of not complying with required corporate formalities,” including failing to hold annual meetings, and that the shareholder had submitted evidence that Palantir had conducted other corporate business informally, including by means of email.

As a result, the Court concluded that traditional records were insufficient to provide information that would satisfy the shareholder’s proper purpose in making the demand, and ordered the company to provide its electronic communications.

John Jenkins