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Scrutiny Enhanced Scrutiny Our Practice Categories Subscribe Contact Us Sidley Perspectives SearchENHANCED SCRUTINY Perspectives on M&A and Corporate Governance Litigation May 21 2024 Buyer Beware: What to Know About the DOJ’s Policy on Self-Reporting in M&A M&A Samir A. Gandhi and Kenneth A. Polite Jr. May 21, 2024 What happens when you buy somebody else’s problems? A new policy from the U.S. Department of Justice (DOJ) is encouraging companies to disclose the misconduct of the companies they buy. The DOJ says it won’t prosecute businesses that voluntarily report wrongdoing found during the mergers and acquisitions process. (more…) Read more Samir A. Gandhi New York sgandhi@sidley.com Kenneth A. Polite Jr. Washington, D.C., New York kpolite@sidley.com https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2024/05/MN-23012_Self-Reporting_MA_podcast_640x400.jpg 400 641 Samir A. Gandhi https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png Samir A. Gandhi 2024-05-21 09:05:20 2024-05-21 09:33:54 Buyer Beware: What to Know About the DOJ’s Policy on Self-Reporting in M&A May 14 2024 You May Think You Are a Partner, But… Chancery Opinion Reaffirms That Any Agreement, Written or Oral, Must Include All Material Terms Best Practices , Partnerships , Section 220/Inspection Rights Sophia A. Blake and Andrew W. Stern May 14, 2024 In a recent decision by Vice Chancellor Glasscock of the Delaware Court of Chancery, Handler v. Centerview Partners Holdings, L.P., the Vice Chancellor considered whether a partnership agreement existed based on a purported oral agreement. The Court of Chancery’s decision provides useful guidance to practitioners and reaffirms that, while Delaware law permits oral agreements, including partnership agreements, that agreement must include all material, essential terms – an agreement to agree is insufficient. (more…) Read more Sophia A. Blake New York sblake@sidley.com Andrew W. Stern New York astern@sidley.com https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png 0 0 Sophia A. Blake https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png Sophia A. Blake 2024-05-14 09:02:39 2024-05-14 09:37:18 You May Think You Are a Partner, But… Chancery Opinion Reaffirms That Any Agreement, Written or Oral, Must Include All Material Terms May 9 2024 Delaware’s Appealing Interlocutory Review Regime Charter/Bylaw Provisions and Amendments , Director Independence and Conflicts , MFW Jim Ducayet and Deepa A. Chari May 9, 2024 In a recent case, Palkon v. Maffei ( TripAdvisor ), the Delaware Supreme Court accepted an interlocutory appeal of the Court of Chancery’s denial of shareholders’ motion to dismiss. Such appeals are not common: Delaware Supreme Court Rule 42(b) expressly provides that [i]nterlocutory appeals should be exceptional, not routine, because they disrupt the normal procession of litigation, cause delay, and can threaten to exhaust scarce party and judicial resources.” Even more unusually, the Delaware Supreme Court took this step over the Court of Chancery’s refusal to certify the appeal. This decision and others demonstrate the Delaware Supreme Court’s willingness to step in affirmatively, even mid-case, to ensure the coherence and predictability of corporate governance law — particularly when a matter of public concern is at stake. (more…) Read more Jim Ducayet Chicago jducayet@sidley.com Deepa A. Chari Chicago dchari@sidley.com https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png 0 0 Jim Ducayet https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png Jim Ducayet 2024-05-09 09:13:52 2024-05-09 09:13:19 Delaware’s Appealing Interlocutory Review Regime May 6 2024 An Arbitration by Any Other Name Is Still an Arbitration, Unless It’s an Expert Determination: Recent Cases Apply Delaware’s Authority Test to ADR Provisions M&A , Post-Closing Disputes Mason Parham , Robert S. Velevis and Spencer M. Stephens May 6, 2024 In M&A transaction agreements, contracting parties frequently negotiate a mechanism to make post-closing adjustments to the purchase price — for example, based on calculations of the target company’s working capital at the time of closing or an earnout” based on the performance of the company for a specified period after closing. Because parties often disagree over these adjustments, the agreement generally will include a framework for resolving disputes. Although the particulars can vary, the parties typically will agree to negotiate in good faith and, if negotiations fail, to submit any remaining disputes to an independent accountant for final resolution. (more…) Read more Mason Parham Dallas mparham@sidley.com Robert S. Velevis Dallas rvelevis@sidley.com Spencer M. Stephens Dallas spencer.stephens@sidley.com https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2024/05/MN-18360_Updated-Enhanced-Scrutiny-Blog-imagery_833x606_7.jpg 606 833 Mason Parham https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png Mason Parham 2024-05-06 09:02:53 2024-05-09 12:44:24 An Arbitration by Any Other Name Is Still an Arbitration, Unless It’s an Expert Determination: Recent Cases Apply Delaware’s Authority Test to ADR Provisions Apr 29 2024 Controller’s Ability to Appoint and Remove Directors at Will Insufficient to Establish Demand Futility Derivative Litigation , Director Independence and Conflicts Robin E. Wechkin April 29, 2024 In Harrison Metal Capital , an investment fund with an 18% stake in a privately held company called MixMax, Inc. believed the CEO was committing financial improprieties, but found no legal recourse for its complaint. Although certain features of the case are unusual as a factual matter, the Court of Chancery’s analysis of demand futility in a company with a controlling stockholder will be applicable in more conventional derivative actions as well. (more…) Read more Robin E. Wechkin Seattle rwechkin@sidley.com https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png 0 0 Robin E. Wechkin https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png Robin E. Wechkin 2024-04-29 09:03:08 2024-04-29 09:37:58 Controller’s Ability to Appoint and Remove Directors at Will Insufficient to Establish Demand Futility Apr 23 2024 The Court of Chancery Prunes Back the Limits of Its Jurisdiction COVID-19 , Forum/Jurisdiction Issues , Post-Closing Disputes Heather Benzmiller Sultanian and Tyler M. Wood April 23, 2024 The Delaware Court of Chancery is one of limited jurisdiction, accessible only when complete relief at law is unavailable. On March 4, 2024, in Graciano v Adobe Healthcare, Inc. , Vice Chancellor Glasscock continued a trend from other recent cases toward guarding the limits of the Court of Chancery’s equitable jurisdiction, when he concluded that a claim for release of funds in escrow established through an M&A transaction was not equitable in nature—even though framed as a request for specific performance—because a declaratory judgment was the only judicial action required to afford the Plaintiff relief. (more…) Read more Heather Benzmiller Sultanian Chicago hsultanian@sidley.com Tyler M. Wood Chicago tyler.wood@sidley.com https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png 0 0 Heather Benzmiller Sultanian https://ma-litigation.sidley.com/wp-content/uploads/sites/3/2022/08/sidleyLogo-e1643922598198.png Heather Benzmiller Sultanian 2024-04-23 09:04:26 2024-04-23 09:37:40 The Court of Chancery Prunes Back the Limits of Its Jurisdiction Apr 17 2024 Corporate Personal Jurisdiction, Mallory, and Forum-Shopping: What’s Next for Multistate or International Corporations? Forum/Jurisdiction Issues Tobias S. Loss-Eaton and Chike B. Croslin April...