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Legal Developments

HSR Developments

In January 2022, the Federal Trade Commission (FTC) made two important announcements for M&A practitioners. First, on January 24, the FTC announced the annual adjustment of the thresholds that trigger premerger reporting obligations under the Hart-Scott-Rodino (HSR) Act. The new thresholds will apply to transactions closing after February 23, 2022. Second, the FTC announced the annual adjustment for maximum daily civil penalties for noncompliance with the HSR Act’s requirements (failure to file, failure to observe the mandatory waiting period, or...

Cross Border

The UK National Security and Investment Act 2021: A New Regime For Acquisition and Investment Transactions: Update

There have been a number of key developments in the evolution of the UK’s national security regime since our e-bulletin earlier this year (UK to Adopt New Powers Over M&A Activity To Protect National Security). First and foremost, the National Security and Investment Bill has now taken its place on the UK Statute Book as the National Security and Investment Act 2021 (the “Act”). The new legislation is set to come into force on the 4th January 2022. The Act...

Cross Border

U.S. National Security Issues in Cross-Border Food, Beverage & Agribusiness Deals

On October 28, 2021, a bipartisan group of U.S. Senators introduced the Food Security is National Security Act of 2021 (the “Act”). Among other things, the Act would require the Committee on Foreign Investment in the United States (“CFIUS”) to consider the “potential effects of [certain foreign investment transactions] on the security of the food and agriculture systems of the United States, including any effects on the availability of, access to, or safety and quality of food.” In other words, certain foreign...

Legal Developments

FTC Announces New Position on Debt and HSR Valuation

On August 26, the Federal Trade Commission announced a new position on an important factor in determining whether a transaction must be reported under the Hart-Scott-Rodino Act: whether debt repayment at closing counts in determining the value of a transaction. The FTC’s new position is that “the full or partial retirement of debt should be included in calculating the Acquisition Price in any instance where selling shareholder(s) benefit from the retirement of that debt.” An explanation of the FTC’s new...

Legal Developments

Semi-Annual M&A Update

On August 11th , Dorsey presented a review of corporate, alternative entity, and securities law developments of interest to the M&A practitioner, including the latest Delaware decisions. Watch the presentation by Brian Burke, Amelia Messa, and Jonathon Van Horn here.

Delaware Law

Reverse Veil Piercing

Under Delaware law, the doctrine of “piercing the corporate veil” has traditionally been used only in circumstances where there has been serious misconduct, and in such cases the Delaware courts have only applied this doctrine to put aside the limited liability of an entity in order to hold its equityholders or directors personally liable for the company’s actions or debts. Until recently, the Delaware Chancery Court has not taken on a case where a plaintiff sought to pierce the corporate...

Delaware Law

2021 Delaware Entity Statutory Amendments

Consistent with Delaware’s practice of annually amending its entity statutes to meet the needs of the changing business community, the State of Delaware’s Governor recently signed into law the 2021 amendments to Delaware’s Limited Liability Company Act, Revised Uniform Limited Partnership Act, Revised Uniform Partnership Act (the “RUPA”) and General Corporation Law (the “DGCL”). There were no amendments this year to Delaware’s Statutory Trust Act, which is generally amended every other year. This year’s statutory amendments will go into effect...

Cross Border

UK to Adopt New Powers Over M&A Activity to Protect National Security

Draft legislation currently being debated in the UK Parliament will introduce a new regime similar to that of the Committee on Foreign Investment in the United States (“CFIUS”) while maintaining the UK’s position as an attractive forum for business and an openness to foreign investment. While the National Security and Investment Act (“NSIA”) will not come into effect until later this year, it will have retroactive effect from November 12, 2020. It is therefore important that entities contemplating any transaction...

Delaware Law

Mergers Involving Delaware LLCs Don’t Trigger Appraisal Rights – Except When They Do

When parties consider an M&A transaction involving a merger, a factor that is top of mind for counsel is complying with the statutory appraisal procedures afforded to holders of equity in the merging entity who do not consent to the transaction – particularly where it is expected that a portion of the shareholder base will not approve of the transaction. Section 262 of the Delaware General Corporation Law protects shareholders of Delaware corporations who do not consent to a merger...

Legal Developments

Alaska Legislature Passes Bill Allowing Virtual Shareholder Meetings

Dorsey Assists Alaska Corporations to Hold Annual Virtual and Hybrid Meetings The Alaska Legislature unanimously passed Senate Bill 24, on March 22, 2021, allowing corporate shareholder meetings and nonprofit member meetings to be held via remote communications. The bill was signed into law by Governor Dunleavy on March 31, 2021. “This is a common-sense bill that makes Alaska an easier place to do business, and I expect it to have an immediate and positive impact,” said Alaska Representative Matt Claman....

Legal Developments

FTC Temporarily Suspends Early Terminations

The FTC and DOJ announced today the temporary suspension of the practice of granting “early termination” of the HSR waiting period. In other words, for the time being, you should assume that any reportable transaction will require the full 30-day waiting period (shorter in all-cash tender offers). This is expected to be a short-duration suspension. See FTC press release here.

Legal Developments

Decrease in HSR Reportability Thresholds and Other HSR Developments

On February 2, 2021, the Federal Trade Commission (FTC) announced the annual adjustment of the thresholds that trigger premerger reporting obligations (and the mandatory waiting period) under the Hart-Scott Rodino (HSR) Act. The new thresholds will apply to transactions closing on or after March 4, 2021 (that is, 30 days after publication of the announcement in the Federal Register). This year, for the first time in a decade, the thresholds decreased. Last month, the FTC also announced adjusted thresholds that trigger prohibitions...

Legal Developments

How CFIUS Foreign Transaction Monitoring Broadened

2020 is a year we will not soon forget. 2020 was also a year full of dramatic changes for the Committee on Foreign Investment in the United States. The committee’s mandate remained the same — review foreign investments in U.S. businesses to protect national security. When necessary, the president can prohibit a proposed transaction, or require a foreign person to divest their interest in a U.S. business on national security grounds. However, important modifications to the CFIUS process were introduced...

Delaware Law

Chancery Opinion Provides First Delaware Court Guidance on COVID-19’s Impact on MAE Provisions and Ordinary Court Course Covenants

On November 30, 2020, Vice Chancellor Laster of Delaware’s Court of Chancery issued the first case where the pandemic provided a company with the ability to walk away from its contractual obligations in a sale transaction, analyzing both the material adverse effect (“MAE”) provisions and ordinary course covenants. AB Stable VIII LLC v. MAPS Hotels and Resorts One LLC et al., C.A. No. 2020-0310-JTL (Del. Ch. Nov. 30, 2020). The AB Stable case involved the attempted sale by AB Stable...

Legal Developments

New Guidance on PPP Loans in M&A

The Paycheck Protection Program (the “PPP”) created under the CARES Act has provided much needed assistance to millions of businesses and other organizations operating in the United States that have been impacted by the COVID-19 pandemic. This program continues to evolve with the latest development addressing situations in which a PPP borrower is participating in a change of control, merger or an acquisition transaction. On October 2, 2020 the Small Business Administration (the “SBA”) published SBA Procedural Notice (5000-20057) (the...

Delaware Law

Delaware Supreme Court Refuses to Apply Corporate Test in Limited Partnership Books and Records Case

The recent Delaware Supreme Court case of Murfey v. WHC Ventures, LLC serves as a reminder that limited partnerships are contractual in nature and therefore in a books and records demand, legal standards applicable to Delaware corporations may not be applicable. In the Murfey case, limited partners of multiple limited partnerships demanded access to Schedule K-1s of other limited partners for the purpose of valuing their partnership interests.  After their access was restricted, the limited partners brought their demand to...

Delaware Law

2020 Updates to Delaware Entity Statute

The State of Delaware typically amends its entity statutes annually to ensure that the statutes are state of the art and most effectively meet the needs of the changing business community.  Consistent with this practice, Delaware’s governor recently signed into law this year’s amendments to the Delaware’s Limited Liability Company Act (the “LLC Act”), Revised Uniform Limited Partnership Act (the “LP Act”), Revised Uniform Partnership Act, General Corporation Law (the “DGCL”) and Statutory Trust Act.  Unlike most years when the...

Legal Developments

PPP Developments

The CARES Act Paycheck Protection Program (“PPP”) has provided much needed assistance to millions of businesses and other organizations impacted by the COVID-19 pandemic in the United States. This program, however, continues to be fraught with snares and traps for the unwary and the M&A space is no exception. To begin, any lender that participates in the PPP is required to utilize a promissory note to evidence each PPP loan it advances. Though the Small Business Administration (SBA) has provided...

Delaware Law

Delaware Court of Chancery Strictly Construes Shareholder Representative Provision, Complicating Discovery from Shareholders

Following a recent Delaware case, buyers in M&A deals should ensure that their purchase agreements adequately provide for access to information from the seller in case of post-closing disputes. In Fortis Advisors, LLC v. Allergan W.C. Holding, Inc., Vice Chancellor Morgan Zurn ruled that if a buyer consents to a single shareholder representative structure in a merger agreement, the buyer cannot later compel the individual selling shareholders’ participation in discovery as parties in interest.[1] The Fortis decision arose out of...

Legal Developments

Immigration Stability Amidst Corporate Restructuring: U.S. Immigration Service Announces Clarifications for Multinational Managers and Executives

The U.S. Citizenship and Immigration Service (“USCIS”) recently announced it has adopted an administrative law decision that clarifies issues relating to the transfer of multinational executives and managers from foreign offices to the United States.  This new decision should streamline the immigration aspects of multinational corporate restructurings and mergers. U.S. immigration law provides a special mechanism for multinational companies to sponsor their overseas executives and managers for U.S. permanent residency (“green cards”), provided those employees worked for a foreign entity...